Sunday, August 30, 2015

Shylock v. The Cherokee?

The post about the BMI v. Freelon Restaurant and Grill lawsuit that was published yesterday brought attention to a similar action that was unknown to this website.  BMI sued the Cherokee Inn and its owner, Hayes McMillan, on October 14 for alleged copyright violations and is still pursuing legal action against the restaurant even though it is now closed.  The offense: allegedly playing five songs without permission from Broadcast Music, Inc.

BMI is one of the chief enforces of copyright law in the music industy.  BMI states on its website:

BMI supports its songwriters, composers and publishers by taking care of an important aspect of their careers – getting paid. BMI supports businesses and organizations that play music publicly by offering blanket music licenses that permit them to play more than 8.5 million musical works. Both relationships save each time and money.
Run afoul of BMI and rest assured BMI will be in court to protect the copyright of its members.  Copyright law is a serious business in the music industry and woe to those who cross BMI.

BMI sued Cherokee Inn on October 29, 2014 in U.S. District Court for alleged copyright infringement.  The plaintiff filed five claims of infringement as it argued the defendant allowed public performance of songs in the BMI music catalog without permission or payment for the use of the songs.   The complaint states the violations are:

January 9, 2014: Folsom Prison Blues by Johnny Cash
January 9, 2014: How Sweet It Is to be Loved By You by Dozier, Holland, & Holland
June 12, 2014: Jolene by Dolly Parton
October 9, 2014: Oh Lonesome Me by Don Gibson (not the pitcher)
June 12, 2014: Heartaches by the Number by Harlan Howard

The suit sought damages, attorney's fees, and a restraining order to prevent the Cherokee from playing unauthorized music.   Copeland Cook attorneys Charles Copeland and Timothy Sterling represent BMI.  Cherokee filed an answer at the end of December that denied the claims or asserted that BMI did not provide enough information to state a claim, a standard response.

The parties had a settlement conference on March 19, 2015 and apparently agreed to a settlement.  The word "apparently" is used because the fun began after the settlement conference. BMI filed a motion to enforce settlement and for costs and for expedited hearing on May 27, 2015.  The Cherokee closed on May 22.  BMI claimed that a settlement was raeached on March 26 in a telephonic conference with Judge Linda Anderson.  BMI accused Cherokee of refusing

to consummate the settlement agreement despite their acknowledgment that a settlement occurred, and Plaintiffs have exhausted all efforts to consummate the settlement
 BMI asked the court to issue an order that enforced the settlement and required Cherokee Inn Enterprises and its owner, Hayes McMillan, to sign and execute the settlement agreement. 

 Mr. McMillan filed his own response on June 10 and it can be stated in two words: no money.  BMI asked for an emergency order.  Mr. McMillan said there was no emergency as his restaurant was now closed. The Cherokee was open when the settlement was reached in March but as it closed, there is no need for an emergency hearing.   He said he intended to remain open when he settled the case.  The defendant stated in a June 10 response:

On May 22, 2015, the Cherokee Drive Inn closed and ceased operations. The reason the Cherokee ceased operations is simple. It simply had no money to continue operating. Indeed, the Court was made aware of Cherokee's financial difficulty at the time of the settlement conference.

4. These facts demonstrate one reason – impossibility – settlement should not be compelled at this time. That is, neither of the Defendants have the funds to pay a settlement, and the Cherokee is no longer in existence...

6. A third reason the settlement should not be compelled is that it is in part, moot. Namely, the portion of the settlement that would require a non-existent entity to cease having live music....

7. The Defendants are amenable to attempting to fund the settlement, but need additional time to determine their financial future. For that reason, the Defendants request a six month stay of this litigation. If the stay request is denied, it is likely that defendant Hayes McMillan will file bankruptcy if the Plaintiffs refuse to consent to a stay. 

BMI's response: Tough luck.   BMI argued on June 17 in a response that Mr. McMillan agreed to the settlement terms.  BMI eloquently and succinctly argued its case:

Unfortunately, since the settlement was reached, the Defendants have refused to follow through with the settlement on two occasions and are now asking for a “stay.”.....

the Defendants assert, without any supporting affidavit and/or other competent evidence, ignorance and financial difficulties. These assertions are simply not enough, and this settlement should be enforced. ....

As to the Defendants’ assertion of financial difficulties, it too is completely unsupported by any evidence for this Court to consider. Moreover, it was the Defendants supposed consideration of alleged financial difficulties that allowed the Defendants to mull over their decision to settle beyond the date of the settlement conference. Of course, as the record reflects, the Defendants came to the Court after the settlement conference and agreed to settle. The allegations of insufficient funds, without any support, are insufficient to warrant a denial of the Plaintiffs’ Motion to Compel Settlement.

As to the contention that the injunctive relief is no longer needed, the fact that the Cherokee has “closed” does not lessen the need for the injunction. The Cherokee could re-open tomorrow. The Cherokee still exists.

As to the argument for a “stay,” this Court should not be swayed by the unsupported claim that “it is likely that defendant Hayes McMillian will file bankruptcy if the Plaintiffs refuse to consent to a stay.” First, and like the rest of the Defendants’ response, this is a bald assertion with no support. Second, the argument says nothing of the other Defendant, the Cherokee. Third, the Plaintiffs informed the Defendants that they would not consent to a stay on June 2, 2015, which was before the Defendants filed their response, yet the Defendant McMillian has not filed for bankruptcy.

 Cherokee attorneys Walker Jones, III and Sterling Kidd filed a motion to withdraw as attorneys for the defendants.  They stated Mr. McMillan had not funds to pay for an attorney and would represent himself.  Judge Anderson stated she will rule on the motion when she rules on the motion to enforce the settlement agreement.   She has not issued a ruling on either motion.

Note: Here are other BMI lawsuits in Mississippi and their filing dates:

Days Inn Crossties Lounge in McComb ( May 5, 2015, open)
Castaways in Ocean Springs (May 2014, settled)
Club Magoo in Jackson (September 17, 2013, settled)
The Bottling Company (formerly The Shed BBQ and Blues Joint in Hattiesburg (July 27, 2012, Judgement against defendants. Defendants satisfied judgment.)
Mardi Gras in Jackson (June 15, 2007. Voluntary dismissal)
Fire in Jackson (May 13, 2010. Default judgment)


Anonymous said...

How much money is involved here? It can't be enough to involve this much legal activity.

Anonymous said...

Shylock -- really??

Anonymous said...

As I read this article, I saw something that was hard to believe.

..."The post about the BMI v. Freelon Restaurant and Grill lawsuit that was published yesterday brought attention to a similar action that was unknown to this website. "....

.......similar action that was unknown to this website.......

Anonymous said...

And that was another day, that the music...died. All over GREED.

Anonymous said...

So the 'kee played music without a license (didn't pay), got caught, agreed to pay, and then (surprise!) didn't pay. No wonder it went under.

Anonymous said...

One of the named partners at Copeland Cook Taylor and Bush used to hang out there every now and then. Hmm...generating a little business by snitching on the bars and restaurants you go to? Nah, a lawyer would never do anything like that.

Anonymous said...

Another side of the BMI bunch - they 'collect' these fees but most often the musicians never see them. Ask any musician or writer what they 'actually' receive as royalties.

Word was when BMI first shut down the live music at the 'kee they were demanding over $20k. I'd bet they hadn't sold that much in beer and burgers on the nights they had music in two years. But turn loose a bunch of lawyers on retainer for a bunch of shysters like BMI and that wouldn't matter. Worse than unions - close them down to prove a point.

Put A Nickle In The Jukebox said...

Snitch? Do you really think it takes an attorney going to a bar (where there's music played regularly) to snitch that they're, ah, playing music?

So, I still don't have a grip on what it would take for this activity to fly appropriately under the radar (I doubt I'm alone in this). Should the band change the words or attribute the record to it's owner prior to singing and playing, or what? Or should the establishment keep track of the songs sung and pay a fee to somebody for each one (which translates to a cover charge where there not already one in effect)?

Anonymous said...

2:57 BMI (and I think ASCAP too) offer a blanket license for live music, allowing musicians to play pretty much anything they want without fear of getting the bar or restaurant in trouble. As BMI advertises, that fee covers something like 8 million registered and published songs, and most bars pay it to keep BMI off their back. The writers rarely see any of this money (according to several writers I know); it mostly seems to go to BMI and the song publishers. It all has to do with the publishers, not the original artist(s) who originally performed a song.

Anonymous said...

Yes. Snitch. Who the hell else goes into bars, writes down all the songs being played, and then goes home to call BMI?

Kingfish said...

The law firm Sheppard, Mullin, Richter & Hampton who publishes the Antitrust Law Blog is reading this site today. Everyone say hi to SMRH. ;-) Now back to reading The Antitrust Paradox.

Anonymous said...

Who "pays to play" is random at best. Go to a car show, skating rink, or wedding and you will have a DJ playing recorded music from Al Jolson to whatever was recorded and published last week. Go to you tube, and there is an endless supply of music. Or go to a music sharing site and download your favorite tune.
Now, whatever legal woes the above mentioned establishments have is none of my concern, but explain what is the difference in what they did and any other business playing music from their computer routed to speakers in their business for all customers and employees to enjoy?

Anonymous said...

Repeal Copyright. Email your senator or congressman.

Kernel Rab said...

What if I'm in the habit of whistling Dixie and periodically get applause?

Anonymous said...

There you go - Greg Copeland killed the Cherokee. Thanks Greg.

Anonymous said...

I suppose they will shut down Chuck E Cheese for singing Happy Birthday at my child's birthday party? Ridiculous.

Anonymous said...

Happy Birthday is public domain as long as it is not used for public broadcast.

Anonymous said...

"what is the difference in what they did and any other business playing music from their computer routed to speakers in their business for all customers and employees to enjoy?"

Simply put, the difference is that someone from BMI when to this establishment to document that they were playing copyrighted music without compensating the copyright owner.

In other words, they got caught. BMI doesn't have enough agents to to go everywhere and file suits against everyone who violates copyrights.

And 10:36 is just wrong. Hell, Winnie The Pooh is still under copyright thanks to Disney. The copyright laws have been incredibly warped by corporations, especially Disney, thanks to stupid lawmakers.

Museeka said...

What about all the violin music played following Ben Allen's posts on this blog? And the Dueling Banjos that accompany Tom Head's posts. This Blog is next to fall.

Anonymous said...

Mr. McMillan can't get a lawyer and the lawyers he had quit because he can't pay legal fees. He can't produce documents ( this becomes a costly process when you are being " papered" into submission) because it's costly. Providing the court documents isn't showing up with receipts people.

So, after the expenses of divorce, a major equipment failure expense, weather damage and robberies, BMI pays more in legal fees than they'd get in the settlement to tip the scales to make it impossible for a nice guy to get a loan to stay afloat long enough to overcome financial setbacks.

Then BMI has the unmitigated gall to argue " The Cherokee still exists and could reopen tomorrow"?

I would laugh if I weren't crying over the state of our legal system.

Justice? I don't think so. And, the judge and BMI's local attorneys must not have any judgment or common sense , no friends in town who know the family which means the they must not have friends to let this travesty continue.

I support the concept of " intellectual property", but the fact is that if people weren't continuing to hear these songs, there would be no purchase or downloads as they would fade from memory. It's much like getting radio play in the old artist should want it.

Want to make a documentary on why voters have become so anti-establishment, angry , and lost faith in our legal and political systems? This story would do it!

Anonymous said...

This thread has proven one thing, people with little, if any, knowledge about this topic will opine just for the sake of opining.... 12:34 AM is a great example.

Anonymous said...

Um, the Cherokee's owner needs to find a friend who is an attorney to help him out. Cherokee Inn is a corporation. If anyone is compelled into bankruptcy, it should not be the owner, personally, but the corporation. Someone help this guy before he is bullied into personal bankruptcy

Anonymous said...

If you have a restaurant that seats 500 and play live music and music from an iPod... a license can be had for about $3400 --- and they'll let you pay monthly.

Places that don't pay for music need to know, it's not expensive... but if you get caught, it's usually $10-20k to settle.

If that's too much, license a Pandora account and the business license that covers ASCAAP, BMI, etc. costs around $25 a month.

If that's too much, don't play music.

Deferring To Wisdom... said...

8:09, in his arrogant wisdom, opines that the rest of us have no knowledge of the subject. Well, no shit! We came in here saying we were not familiar with this subject. We don't really need a fart blossom to tell us we're not well educated on the matter of ASCAP and music license, etc., now do we?

Other than telling us what we've already said, his post is worthless. Wasted space. A total waste of his valuable time. He could have been writing his name in the dirt out in the back yard with his whizzer. Then he could have another Twinkie.

Anonymous said...

"This thread has proven one thing, people with little, if any, knowledge about this topic will opine just for the sake of opining.... 12:34 AM is a great example."

8:09 - 12:34 here. I know exactly who holds my copyrights (yes, I have been compensated adequately for them), and know how they plan to be compensated for their use.

What exactly have YOU published/copyhrighted, and who holds the rights to the intellectual property YOU have produced?

Anonymous said...

at 2:36 PM, you have done a fantastic job proving my points, thanks, even though you did it with your whizmatic 3000.

And at 3:28 PM, how did you go from happy birthday to boasting about "copyhrighted" (???) material? I'm reminded of Bill Murray doing "Mr. Roberts" (on National Lampoon) when the bass player complains about being up before noon because it affects his constitution.

"Life is hard, it's harder when you;re stupid"

Anonymous said...

@ 10:36: The Happy Birthday song is NOT public domain. The copyright is currently held by Warner/Chappell Music, who still collects royalties. More info:

Anonymous said...

at 5:12 PM
What I said was "Happy Birthday is public domain as long as it is not used for public broadcast."

This was just a few searches down from yours.
"United States Code Title 17, §110(4) states that singing the song among a group of people "without any direct or indirect commercial advantage" will not constitute infringement either. But keep in mind: "indirect commercial advantage" is very broad."

Which leads me to believe this is why so many restaurants quit sing the traditional "Happy Birthday" to customers and use the newer "Happy happy birthday, we're so glad you came".

Oh, by the way....use when necessary. ENJOY!!

Now, let's move on.

Anonymous said...

Using a classic anti-Semitic slur in the title of your post...stay classy Kingdish.

Anonymous said...

4:55 Sorry my typo upset YOUR delicate constitution. I am not paid for my stenographic skills, just the intellectual property I produce. At work someone else types for me.

As for your impaired reading comprehension skills, well, there's nothing I can do to fix that. We were talking about "Happy Birthday" being copyrighted. I shared a little I've learned over 30 years of assigning copyrights. Most people can connect those dots.

Anonymous said...

8:25 Attention JPS grads: he's quoting someone known as Shakespeare (ask an SA or Prep student about him). He's trying to bring a little class to this joint.

Can't recall which literary lion wrote about the Cherokee though....

Anonymous said...

Not that I vouch for the accuracy of the NY Times, but....

New Evidence Should Free ‘Happy Birthday’ From Copyright, Lawyers Say

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