Issue link: http://winesandvines.uberflip.com/i/619725
146 WINES&VINES January 2016 MARKETING even $150,000 if the violation is considered willful," WA states. So you don't want to cross the licensers. The ubiquitous Internet and social media have made it simpler for the PROs to track down and pursue violators. Word on the street (or in the vineyards) is that once you've come to their attention, the licensers are relentless. Vincent Candilora, head of licensing at ASCAP, confirmed this: "We don't go away. Once you're on our radar, we have an obliga- tion." But, he added, "We have never sued a winery. It's a last resort to sue anyone. You want people to use your music. It's a cost of doing business, and (not paying) is not fair to those who do license." ASCAP is a nonprofit organization with more than 550,000 artist/members and a play- list of more than 10 million works. It claims to return 88% of the licensing fees it collects to the artists. Tara Good at WA commented: "Most winer- ies have some sort of music. In the past two or three years, ASCAP, BMI and SESAC have been doing a general crackdown. They hire people to search the Internet for locations playing music. They will then call, show up or send letters and emails requesting payment for the music. In theory, they should only collect for music that they represent, but because there are only three of them, courts have found it likely that the business probably played some- thing in their repertoire." Good continued, "There are two types of licenses: recorded and live music. For recorded music, many wineries fall under the "home- style exemption" (see "Small Wineries: Go Homestyle"). But these groups do not inform business owners of this exemption. The safest road to play music is to purchase a business streaming service. There is no exemption for live music. The PRO groups will start by over- quoting what a winery will pay. This is why it is so important for wineries to be educated." Good said WA members often ask, "What if the live performer plays only their own music?" "This goes back to courts finding reasonable doubt. I know of some wineries that play spe- cifically regional music (i.e., polka) and some that record every performance to prove that only original work was played, just in case they are taken to court. It is up to the winery to discuss with its lawyers what they are comfort- able with. "In the case of live performances, paying all three organizations, fees can reach up to $1,000 for a single performance. For many wineries, any profits they would see do not outweigh the fees," Good said. "Wineries are very hesitant to discuss music licensing out of fear of retribution. The PRO representatives appear to negotiate prices for each winery. Wineries are afraid to lose their 'deal' or attract the attention of one of the other groups," she said. Candilora explained that the PROs operate under a consent decree with the Department of Justice and are prohibited from negotiating fees. "We have to be able to offer the same rates to similarly situated users," and so cannot charge venues of similar size and usage differ- ently. "We seem inflexible to people (like winer- ies) who are used to negotiating prices, but we cannot violate the consent decree," he said. Sealed lips Wineries are more than reluctant to talk about their licensing. Wines & Vines attempted to contact numerous, normally garrulous wine- makers across the nation: Only one was willing to comment on the record. Although he has a license, subscribes to PROPandora for tasting room music and feels he is covered, we have chosen to protect his identity so that he does not become a target. "We're a popular place: We have live music and bands, wines and sunsets. We pay about $1,000 per year for a BMI live performance license. When we were given options, we went with them. "It's not an ask-for-forgiveness thing," he said. "I hope we're covered. I think music is important. All you can do is try to comply as best you can. I feel we're doing and have done that." Various other winery execs commented only under the assurance of anonymity: Many felt they had been harassed by the licensing orga- nizations with letters, phone calls and "shills." Most were unaware of the various options available and said they had not been informed of the home-style exemption. Several had given up altogether on hosting live performances. THE HOME-STYLE EXEMPTION A ccording to WineAmerica's music-licensing guidelines, the home-style exemption is probably applicable to most of America's small wineries, although the licensing agen- cies will not necessarily make you aware of this. A winery is not liable for royalties under the following circumstances. • You use pay-in-advance services such as XM4Bix or Pandora Business; • Only use royalty-free music (CDs are available); • Ensure bands play only original or non-copyrighted material; • Your tasting room has less than 3,750 gross square feet of space, including areas not accessible to the public such as kitchen/preparation spaces, storage rooms and back offices (parking lots excluded) and plays radio or TV with copyrights covered by the broadcasters. This does not apply to music intended for personal use (i.e., CDs or down- loads). • Or, if the tasting room is 3,750 square feet or more but uses no more than six loudspeakers, of which not more than four are in a single room or adjoining outdoor space. If TVs are used, there are no more than four, not more than one in any one room and none has a diagonal screen measuring more than 55 inches. Small, family-owned and operated wineries want and need to create a welcoming environment for their visitors and employees. Staying informed can help winery owners maintain a congenial atmosphere and stay inside the law. " In the past two or three years, ASCAP, BMI and SESAC have been doing a general crackdown." —Tara Good, WineAmerica BOTTLEROCK