The Austin Chronicle

ASCAP Levels Lawsuit Against Sixth Street Music Venue the Nook

By Kevin Curtin, February 26, 2019, 4:50pm, Earache!

ASCAP, the performance rights organization that represents over 700,000 songwriters, has taken legal action against Sixth Street bar and music venue the Nook Amphitheater for alleged “unauthorized public performance of its members’ copyrighted musical works.”

Jackson Wagener, ASCAP’s vice president of business & legal affairs, tells the Chronicle that representatives from his organization have contacted the Nook over 50 times in the last five years, trying to get them to pay for an ASCAP license. They refused. Nook owners JD Dunn and Stephen Condon have not responded to a request for comment.

Wagener says there isn’t a dollar amount currently attached to the lawsuit for violation of the U.S. Copyright Act, but revealed that suits of this nature often end up recovering statutory damages at two-to-four times the cost for a license over that time period. ASCAP licenses are calculated by the frequency and manner in which music is played, with scalability depending on size of the establishment. Wagener notes that the average ASCAP contract costs $750 annually.

News of the lawsuit came to light this morning in an email from ASCAP’s public relations department, bearing the subject line: “Austin Venue Refuses to Pay Songwriters; Profits From Their Music.” It also detailed 12 other venues, none of which are in Austin, that are being simultaneously sued. Asked how many lawsuits are issued against bars and venues annually, Wagener replied, “There are years where we’ve filed hundreds and years where we’ve filed 30.”

“We don’t prefer to litigate,” he continued. “We prefer to reach agreements and get establishments licensed without going to court. We view it as a last resort.”

The situation gives a glimpse into a worst-case scenario of what can happen if a business features live or recorded music in a public setting and does’t pay performance rights organizations like ASCAP, BMI, and SESAC, which collect and distribute songwriter royalties. Last fall, BMI announced it was opening an Austin office in 2019.

Wagener says ASCAP has teams of licensing reps researching which music establishments are unlicensed, as well as employees who actually go into bars. He says that complaints are compiled with specific violations of playing songs by songwriters they represent.

The Nook features live music (including cover bands) as well as DJs. The last time the venue was embroiled in a lawsuit, the nearby Westin Hotel filed a $1 million grievance against the bar over loud music disturbing its guests. The suit never reached court, with the Westin instead buying the bar a downward-facing speaker system as a compromise.

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