Bernstein Shur Monthly – September 2017


Bernstein Shur Monthly – September 2017

Daniel J. Murphy, Joshua T. Silver, Michael R. Bosse

Legally Playing Music in Your Business

By: Ari Solotoff

Studies have shown that using music in your business influences consumer behavior. Using background pop music, for example, may result in higher retail sales.

  • If your restaurant, brewery, or retail store uses music to attract customers, U.S. Copyright law requires that you obtain a commercial music license to publicly play music at your business location.

Subscribing to a personal streaming service such as Spotify, Pandora, or Apple Music does not mean you have a license to play music in your business, because under the fine print for these services you agree not to play or broadcast music in a commercial or public setting. This limitation derives from U.S. Copyright law, which gives songwriters such as Taylor Swift, Bruce Springsteen, and Stevie Wonder the exclusive right to permit others to perform their musical works in public.

To legally use music in your business, you need to secure a music license from the Performing Rights Organizations (also called “PROs”) (ASCAP, BMI, SESAC, and GMR). The PROs function as “clearinghouses” by acquiring the rights from songwriters and music publishers, granting licenses to music users for public performances of their entire catalog, and ultimately paying royalties to the copyright owners from the licensing fees paid by businesses.

  • If you are already receiving threatening letters from ASCAP or BMI, or if you need assistance transitioning to licensed music use, we offer a one-stop music licensing service (“The Tune Kit”) and can advocate on your behalf to help you secure music licenses from the PROs for your business.
  • Through our one-stop music licensing services, we will negotiate directly with the PROs to help you get the best rates and discounts.

Like books and movies, music is protected by copyright law. Among other rights granted to songwriters is the exclusive right to permit others to perform their works publicly (i.e., the “public performance right”). Public performances include playing music through technology in a public setting – whether or not the activity is for profit.

  • If you operate a restaurant, brewery, bar, café, gym, or hotel and use a digital streaming service or music player connected to a sound system to play music for your customers, you are publicly performing music and you need a commercial music license, unless your business fits within a small class of exemptions.

Playing unlicensed music is illegal under copyright law, and each of the PROs employ people to visit businesses like yours to verify whether you have purchased a music license. If you play unlicensed music, you will receive enforcement letters from the PROs, you can be sued for copyright infringement, and you can face federal fines ranging from $750 to $30,000 per infringing work.

Generally, you have two choices when it comes to legally licensing music, each with pros and cons as further described in our Tune Kit:

  1. Use a pre-licensed streaming service such as Mood Media (Pandora), Soundtrack Business (Spotify), or SiriusXM for Business; or
  2. Obtain blanket licenses directly from the PROs to cover all uses of music – whether live or recorded.

The complexities of music licensing can seem daunting, and for those who have received threatening letters from ASCAP or BMI, we appreciate that the music licensing process may be hard to understand and can feel like opening up a pandora’s box. Without someone to advocate on your behalf, you are left to negotiate the music licensing process on your own. We provide a safe, neutral space to discuss your music licensing needs and options.

Please contact Ari Solotoff at for further information regarding music licensing for your business and to discuss our one-stop music licensing services.

Crying Over a Spilled Construction Project – Hurt Feelings And Emotional Distress Aren’t Recoverable

By: Mike Bosse

In TLIG Maintenance Services v. Fialkowski, decided late last year, the Court of Civil Appeals in Alabama confirmed that construction breach of contract claims, and mental anguish and suffering are not recoverable damages even if they are all real and sincerely held feelings as the result of a bad construction project. This is the law in virtually all jurisdictions and is a reminder that no matter how upset one may be over a construction project, the resulting emotional distress is not likely to be recoverable in a court case.

In this Alabama case, the homeowner purchased her house in Huntsville, Alabama in May of 2007.  After saving a sufficient amount of money over a course of several years to begin some renovation projects, she met with one of her co-worker’s boyfriend who was a contractor. Work on the project began in April of 2013 and proceeded over a period of months, although construction was not occurring every day and the project became stalled. When issues of quality arose, the contractor told the homeowner that he needed more money to complete the work and he was unable to explain where the previous construction payments had gone.

In the subsequent court case and trial, the homeowner was awarded $27,176 in compensatory damages and $15,000 for mental anguish and emotional distress. On appeal, the contractor did not challenge the compensatory damages, but the court concluded that the mental anguish damages were not recoverable. The homeowner testified that as a result of having to pay added monies to fix the project, she had been worried and unable to sleep at night. The court concluded that there were no facts that determine that the house was inhabitable and no evidence that the homeowner’s health or safety was endangered by the defective work. The court said that “although we sympathize with Fialkowski on the frustration, worry, and the added expense that she experienced in this case, we cannot say that they exceed the frustration, worry, and added expense in any given breach of contract case in which damages for mental suffering are not recoverable.” Thus, the court held to the long-standing rule that in a breach of contract case, emotional damages, even if they are real and suffered, will not be recoverable as part of the damage award.

The Seventh Circuit Court of Appeals has Rejected a Court-Approved Class Action Settlement Involving Subway, the Fast Food Franchisor

By: Daniel Murphy

In the underlying case, class plaintiffs brought suit against Subway based on allegations that its “foot-long” sandwiches fell well short of twelve inches. At the trial court level, the U.S. District Court for the Eastern District of Wisconsin approved a settlement that required Subway to implement quality control measures, with contempt as a remedy, while also awarding $520,000 in attorney fees to class counsel. On appeal, the Seventh Circuit rejected the trial court’s approach, stating that “[c]ontempt as a remedy to enforce a worthless settlement is itself worthless.” Circuit Judge Diane Sykes, who authored the Seventh Circuit’s opinion, noted that no Subway customers suffered any material injury because the quantity of food was uniform despite minor variations in bread size. Accordingly, the appeals court concluded that the trial court erred when it first certified the class action against Subway and then later approved a settlement that provided “zero benefits for the class,” stating that the action “should be dismissed out of hand.”

Read more about this development here,

Access the Court’s opinion here.

Bernstein Shur Launches New Cybersecurity Team

Bernstein Shur has launched a joint technical and legal cybersecurity and data security team. Spearheaded by shareholder Josh Silver and CIO Matt Kramer, this unique, specialized service offers New England businesses a combined resource to address both their privacy and data security regulations as well as their technology consulting needs.

The new offering provides a comprehensive review of current technology usage and systems, followed by a detailed plan of recommendations, ensuring they are properly aligned with both short and long-term business objectives and include continuous monitoring and real-time assessments. It also includes advice on all insurance; federal, state, and international regulations; contractual and customer obligations, vendor and third-party contract reviews regarding privacy and data security; and offers full-service data-breach protection and management as needed.

Click here to learn more and meet the team!