DINGO THE CLOWN and Olive Rootbeer showed up at Café au Play on SE Division last Thursday, August 9, to lead the children’s story time they host every week.

But then the staff of the volunteer-run coffee shop informed them that the pair’s days of singing classics like “Mary Had a Little Lamb” were over. After receiving numerous emails, phone calls, and letters over the past month from music-licensing organization Broadcast Music, Inc. (BMI), Café au Play was worried it would have to fork over hundreds of dollars in royalties if anyone performed any songs they hadn’t written themselves.

“They were sending me letters, emailing me, saying I’d have to buy a license to have performers,” says Kristin Heying of the nonprofit Café au Play. “I was like, this is kids’ music! We have all-local kids musicians.” Rather than risk the wrath of BMI, the café decided to ask performers to play only original music—no nursery rhymes, even.

Café au Play is just one example of small businesses being solicited heavily to spend hundreds of dollars on a music license or face potentially hefty fines. After being asked about its solicitation of Café au Play, BMI said that the café had been contacted over and over by mistake.

BMI is the country’s largest music-licensing organization. The nonprofit corporation patrols commercial use of music on behalf of songwriters, collecting royalties for artists who sign up with BMI and then sharing the proceeds. Much of BMI’s work involves encouraging businesses—like coffee shops and bars—to buy annual music-use licenses that cost a minimum of $335 a year.

Many of the rules around music licensing are surprising. For example, if a business is playing the radio on six or more loudspeakers, or plays Top 40 hits as its hold music, that requires a public performance license. If BMI agents can determine that a business is playing music they represent without a license, the group can retroactively demand royalties.

The Oregon Restaurant and Lodging Association frequently gets calls from restaurant owners about music licensing issues, says the group’s Vice President of Marketing John Hamilton.

“I don’t think know if I would call these companies predatory, but they can certainly be tenacious and intimidating,” says Hamilton, who recommends businesses sort out their music situations with the help of a copyright lawyer. “If you’re on their radar, it takes a little bit to get off, because they’ll assume you’re playing their music unless you can prove you’re not.”

In the case of Café au Play, the coffee shop may have come under BMI’s scrutiny because it lists live music performances like “Story Time with Olive Rootbeer and Dingo” on its website.

Heying says she felt the café was being intimidated into paying for a service it doesn’t need. Neighbors built the nonprofit coffee shop and community center over several years on what used to be a drug-infected site, training high schoolers to work as baristas. Spending $300 on a license would eat into the group’s budget.

“Definitely they’re trying to intimidate you, it’s like the music mafia,” says Heying.

“If they’re advertising live music on their website, it could be inferred that they’re playing more than occasional nursery rhymes,” says BMI spokesman Ari Surdoval, who confirmed that the café had received letters and phone calls.

However, after looking into the file, Surdoval quickly called the Mercury back to say that soliciting Café au Play had been a mistake.

“They certainly appear to be more of a nonprofit. Right now, they’re going to be pulled out of the system,” said Surdoval.

Heying was astounded when she heard the news that Café au Play would no longer be BMI’s target for royalties.

“If that really happens, I would be floored,” she said.

Sarah Shay Mirk reported on transportation, sex and gender issues, and politics at the Mercury from 2008-2013. They have gone on to make many things, including countless comics and several books.

11 replies on “Singing in a Coffee Shop? That’ll Be $300.”

  2. I will be heavily boycotting BMI. Dingo and Olive inspire children from very early ages to become performance artists, appreciate the performing arts, and just make them happy on a daily basis. That doesn’t filter down to money and never should. I hope and pray Dingo and Olive play more often and to a much larger audience. We need them.

  3. as a BMI composer myself, I believe that the general public and business owners need to educate themselves on copyright laws and on how music licensing works. BMI represents artists, and composers. If a cafe, club or restaurant needs or wants to play songs they need to pay the fee. It is simple. It is e artists who lose when businesses don’t pay for music.

  4. I’m music professional working in NYC. This is definitely not a David vs. Goliath scenario. BMI, ASCAP, SESAC and their ilk are good people doing good work: collecting royalties for working composers. Unlike many other careers, most people working as musicians/composers don’t have any sort of retirement fund or 401K set up; the only long-term income they can hope for is royalty checks from their performing rights organization. Music publishing is an enormously complex issue: companies like Apple, Spotify, Mediafire, etc are completely killing the working composer, far worse than the major labels ever did. I’m not sure where music licensing by a non-profit establishment falls within the boundaries of copyright law, but it’s irresponsible for this cafe to have not looked into this earlier; it’s also unfortunate that BMI wasted their time and resources on a dead-end source of revenue for their composers. But there’s really no one at fault here; I would guess the whole thing is due to a simple lack of proper paperwork.

  5. @NYC engineer: I don’t disagree with most of what you say. These are member-driven nonprofits trying to find a way to make sure their members get what they’re owed.

    But I will disagree with one thing: When a group like BMI lawyers-up just to go after the Cafe Au Play, it’s very definitely a David vs. Goliath scenario. They need to find a better way.

  7. You can’t tell me that in this town, awash in great musicians, the community as a whole can’t jab a “fuck you” finger in BMI’s eyes?

    There have to be at least 20 bands, or duets or bark munching soloist who’d voluntarily step to the goddamned plate and put together 20-50 little kids ditties that could supplant the already copy-written canon put together and “owned” by BMI.

    Mary had a freaking Lamb? Owned by BMI? Who’s collecting royalties on the original poem written in 1830?

    Nice work Sarah.

  8. My guess is that BMI hired people to post the user comments by PDX composer and NYC Engineer. We are one sick society when it reaches this point.

  9. I am a real live musician, and sorry, BMI and ASCAP’s rules are pretty well known to club owners, etc., contrary to the author’s “surprising” comment. I’m not for policing nonprofits that help people, but a lot of musicians depend on royalties so they can actually have a real live music career. I’m pretty sure “Mary Had a Little Lamb” is in public domain, but a lot of people don’t realize just how much money it takes to actually record a new song and put it out there, and not all of us are trust funded like a lot of people in Portland. As for “boycotting” BMI, et al, good luck with that, virtually every musician worth listening is affiliated with one or the other, including all kinds of leftie Occupy types.

  10. “Music Licensing Company Admits Mistake.” damn right it was a mistake! Performing singalongs FOR CHILDREN is a GOOD DEED, and good deeds should be REWARDED!!!!!! Viva la DINGO DIZMAL & OLIVE ROOTBEER, they’re clowns but the REAL clowns here work for BMI, trying to get money for some old songs whose composers died like 100 years ago, what are maggot-infested bones and hair going to do with “royalties?”

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