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Tampa Bay Downs fined $90,000 for playing unauthorized music

TAMPA — It may go down as the most expensive game of musical chairs ever.

Six songs, played three years ago at a Tampa Bay Downs Kids and Family Day event, will cost the racetrack $90,000.

On Tuesday, U.S. District Judge Virginia Hernandez Covington ordered Tampa Bay Downs to pay song composers that much in statutory damages for using their music without a license.

The racetrack played unauthorized songs for at least two years, federal court records show, and continued doing so after numerous warnings from the American Society of Composers, Authors and Publishers, which licenses the use of its members' work for a fee. Tampa Bay Downs didn't stop until after the music companies and composers sued.

The music stopped for good on Tuesday in Covington's court.

"Under these circumstance, the court finds that there is a substantial likelihood that TBD will continue to infringe copyrighted works unless an injunction is issued," Covington wrote in a 37-page ruling.

The judge prohibited Tampa Bay Downs from using any music licensed by ASCAP without permission.

H. Vance Smith, an attorney for Tampa Bay Downs, declined comment Tuesday, saying he hadn't reviewed the judge's order.

An attorney for ASCAP, which represents the composers, did not return a call for comment.

Covington's order awarding damages to the songwriters comes a day after three former janitors filed a suit against Tampa Bay Downs, claiming that sexual harassment and intimidation led to their firing after one of them refused to rekindle a sexual relationship with a supervisor.

In the music case, Covington also held Tampa Bay Downs president Stella Thayer responsible for the violations, saying she had the authority to supervise the racetrack's conduct.

ASCAP learned in 2004 that Tampa Bay Downs was using its copyrighted music without permission, and sent a letter to Thayer to correct the problem, court records show. Numerous warnings followed, but the racetrack "ignored all ASCAP's efforts" to secure licensing and comply with the law, the judge wrote.

The organization hired independent investigator Walter Busse to see whether the activity continued. He visited the racetrack on Feb. 19, 2006, during the Kids and Family Day event, and documented the illegal use of six songs.

That day, three Radio Disney personalities hosted children's games, contests and giveaways. They played four unauthorized songs during a game of musical chairs, Busse reported. They were: Can't Help Falling in Love, Axel F, Beautiful Soul and Because You Live, according to court records.

Busse heard two more unauthorized songs — Rock and Roll and Rhapsody in Blue — playing inside a clubhouse.

Racetrack officials initially said they thought Radio Disney had licensed the songs. But the judge said Tampa Bay Downs never provided any proof.

The writers are the ones who get paid under current copyright law, but that may change, said Robert Brauneis, a professor of intellectual property at the George Washington University Law School.

Legislation is pending to expand compensation for a copyright violation beyond composers and authors. Brauneis said performers who didn't write the music are fighting to get a cut.

Under the current law, the owner of an establishment can be held liable for a copyright violation involving a performance by a musician or disc jockey. Cover bands performing in bars and clubs typically do so legally, because those venues have paid a licensing fee, he said.

These types of copyright cases happen "relatively often," Brauneis said, though there are some exceptions to the rule. Small bars and restaurants are often exempt, depending on size.

When the operator has lots of assets, as in the case of a racetrack, licensing companies like ASCAP typically go after the venue for a performance if there is a violation. If there's a judgment against them, there's property to go after for payment, Brauneis said.

"Partly because the venue is not a fly-by-night operation," he said.

Times researcher John Martin contributed to this story. Kevin Graham can be reached at kgraham@sptimes.com or (813) 226-3433.

FAST FACTS

Copyright Act

When a copyright infringement involves a performance by musicians or disc jockeys, the Copyright Act allows for the owner of the establishment to be held liable if it has "the right and ability to supervise the infringing activity and also has a direct financial interest in such activities."

Under the law, performance of a copyrighted work means "to recite, render, play, dance, or act it, either directly or by means of any device or process."

Tampa Bay Downs fined $90,000 for playing unauthorized music 01/06/09 [Last modified: Thursday, January 8, 2009 11:25pm]

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