Crime & Courts

Old Town bar is being sued for playing ‘Fat Bottomed Girls,’ other popular songs

Editor’s note: This story has been updated with a statement from BMI clarifying how XY Bar came to its attention, and that royalties collected go to songwriters, not artists.

Wichita’s XY Bar is being sued for its song choices.

Broadcast Music Inc. (BMI) on Thursday filed a lawsuit against the popular Old Town bar in federal court, alleging copyright infringement.

The suit alleges that the bar at 235 N. Mosley played five songs that BMI owns the rights to, and that the bar had not paid for a public performance license.

The songs were played on May 4 and 5, 2019, according to the suit.

The songs in question include: “Boogie Shoes” by KC & The Sunshine Band, “Fat Bottomed Girls” by Queen, “Take On Me” by a-ha, “Hit ‘Em Up Style (Oops!)“ by Blu Cantrell, and “Mambo No. 5 (A Little Bit Of...)” by Lou Bega.

The lawsuit alleges that BMI had contacted XY Bar more than 45 times by phone, mail and email since July of 2018, “in an effort to educate (the bar) as to their obligations under the Copyright Act with respect to the necessity of purchasing a license for the public performance of musical compositions in the BMI Repertoire.” It also alleges a cease-and-desist letter was sent to XY Bar.

The law defines a public performance as one taking place somewhere that’s open to the public, or where there are gathered “a substantial number of persons outside of a normal circle of a family.”

The lawsuit is seeking an unspecified amount in damages and a trial to be held in Wichita.

“We never want to see the music go away and file lawsuits as a very last resort,” Jodie Thomas, executive director of corporate communications and media relations for BMI, said in an email. “Most of the time, these types of cases are settled out of court. It’s BMI’s job to protect its songwriters and make sure they are compensated if their work if performed in a public setting.”

Chad Porter, co-owner of XY Bar, said Friday he was unaware of the lawsuit, and that he has “not had any paperwork that’s been served to me.”

BMI represents songwriters, composers and music publishers — collecting fees from businesses that use its music, including television and radio stations, streaming services, bars, restaurants, hotels and other such places. It uses those fees to pay songwriters for their work.

According to various websites, obtaining an annual license from a major performing rights organization like BMI can cost anywhere from a few hundred to a couple thousand dollars, depending on the business.

The three largest performing rights organizations in the U.S. are BMI, ASCAP, and SESAC.

BMI has filed at least 3,174 copyright cases in federal court since 1972.

In Kansas, BMI has filed 24 cases, dating back to 1990.

Derby’s The Green Derby bar was sued by BMI in 2012 for 12 copyright claims, and former Wichita bar The Horn, at 1255 S. Tyler, was sued by the organization in 2012 for 10 copyright claims.

Both of those cases were eventually dismissed. The defendants never filed an answer to the suit.

There have been multiple BMI lawsuits that have been dismissed after the defendant failed to respond to them.

But in other cases, establishments have either agreed to or been ordered to pay settlements with BMI.

Lawrence live-music venue The Bottleneck was ordered in 2014 to pay $8,000 for each of its five copyright infringement claims with BMI ($40,000 total).

In Boulder, Colo., The Outback Saloon settled a copyright-infringement suit with BMI for $40,000.

Another Colorado saloon, The Carey-On Saloon in Colorado Springs, went out of business after being hit with a $21,000 fine from BMI in 2014, according to Colorado-based publication Westword.

A 55-seat coffee shop in Missouri was sued by all three of the aforementioned performing rights organizations in 2014, because bands were playing cover songs during concerts there.

Thomas, the BMI spokeswoman, said the New York-based organization often finds out venues are performing copyrighted music through social media, websites, or in the local press.

“If a business doesn’t have a music license already in place, BMI works with those business owners to determine their music needs and ensure that they are protected,” she said in an email. “Our approach is to educate business owners about the value that music brings to their establishment, the requirements of copyright law , and the importance of maintaining a music license.

“After several attempts have been made to reach the business owner through phone calls and letters, an in-person visit might occur.”

In the Boulder, Colo., case, the bar’s owner said an undercover agent from BMI came to the bar and reported the violation to the company, according to an article from the Colorado Springs Gazette.

In a suit filed in Connecticut, an agent of BMI also testified to being physically present at the establishment and hearing copyrighted tunes over loudspeakers.

Matt Riedl covers arts and entertainment news for the Wichita Eagle and has done so since 2015. He maintains the Keeper of the Plans blog on Facebook, dedicated to keeping Wichitans abreast of all things fun.