The original article can be found on SFGate.com here:
Wednesday, December 3, 2003 (SF Chronicle)
The sounds of silence in Bernal Heights/Tavern owner ends live music after ASCAP suits
John Shinal, Chronicle Staff Writer
Skip's Tavern, which sits on Cortland Avenue in the heart of Bernal
Heights, is a throwback to when San Francisco was mostly a blue-collar
The gritty neighborhood tavern is the kind of place where Vietnam-era
veterans always get a warm welcome but boisterous football fans wearing
anything but 49er colors do not.
In the past few years, Skip's also became home to a small but burgeoning
music scene, even as live music declined in the rest of the city. Bands
with names like the Lab Rats and Thunder Blue staged marathon jam sessions
that attracted crowds that often spilled onto the sidewalk.
But the stage at Skip's has been silent since Oct. 1, when owner Bill
Courtright pulled the plug after deciding that offering live music wasn't
worth the legal trouble it was attracting.
Twice in less than a year, Courtright was sued for copyright infringement
by the American Society of Composers, Authors and Publishers, which
collects royalty payments for copyright holders and represents them in
"I wasn't going to wait for a third lawsuit," said Courtright, who has
owned Skip's since 1990.
As record companies conduct a much-publicized effort to crack down on
Internet music downloads, Courtright's bitter legal dispute shows how
small- club owners, simply by providing a venue to local musicians, can
run afoul of the guardians of copyrighted music.
Courtright's troubles began in September 2002, when he received a letter
claiming that a private investigator hired by ASCAP heard musicians
playing covers of copyrighted songs at Skip's on June 22, 2002.
The letter, from the San Francisco office of the law firm Heller Ehrman
White & McAuliffe, threatened a lawsuit.
Under copyright law, Courtright can be held liable for the copyright
infringements at his club because he never purchased a license from ASCAP.
Yet Courtright and Regi Harvey, a drummer and guitarist who was on stage
on the night in question, vehemently deny that any such infringement took
place. In fact, copies of the lawsuits and supporting documentation reveal
two very different versions of what was played that night.
Harvey said the three songs in question -- "Shop Around," "Ain't Nothing
Like the Real Thing" and "Where Is the Love?" -- are not even in his
"We play original jazz and jazz rock," said Harvey. "We don't even like
Courtright responded with a letter Oct. 3, 2002, asking that the law firm
provide evidence of the alleged infringement.
In return, he received a lawsuit.
Courtright tried to settle, and his attorney, James Attridge, sent a
letter Jan. 10 which stated that Courtright had agreed to pay for a
one-year license in exchange for the copyright group dropping the suit,
which sought unspecified damages.
The society's legal representative refused and sent subpoenas to Harvey
and Courtright requesting depositions.
"Trying to negotiate with them has been ridiculous," Courtright said.
"They're trying to make an example out of me, I guess."
ASCAP lawyer Richard Reimer said attaching damage claims to its lawsuits
is necessary to discourage copyright infringement by club owners.
Reimer said that if he took Courtright's offer to buy a license in
exchange for the group not seeking damages, "no one would ever (buy) a
It's not like we can call the San Francisco police and tell them to go
arrest him," he said.
Legally, if a copyright is not enforced within a reasonable amount of
time, the copyright holder loses the right to enforce it. For that reason,
ASCAP, which has 4,000 licensees in California, routinely goes after
small, unlicensed clubs for copyright infringements, said Robert Andris, a
copyright attorney in Redwood City. "Generally, the bar or restaurant
signs up," Andris said.
The license for Skip's, which is based on the club's seating capacity,
number of nights per week that music is performed and whether it's played
live or by a disc jockey or jukebox, would cost Courtright $698 per year.
Reimer said his group first sent a letter asking Courtright to buy a
license in 1997. When asked to provide a copy of the letter, however,
Reimer declined, citing confidentiality concerns.
Courtright acknowledged that he probably received such a letter, but that
it was similar to dozens of solicitation letters he gets every week.
"It basically said, 'Pay us money if you want to play our music,' " he
said. Because he had instructed Harvey to hire bands that play original
music, he ignored the letter.
If ASCAP wins the suit, Reimer said he expects to collect damage payments,
which range from $750 to $150,000 per infringement, in the high five
"But would we settle for less than that? Probably," he said. "I don't
anticipate having to try this case."
As to Harvey's and Courtright's statements that no violations occurred in
June of last year, Reimer said, "The ASCAP investigator will be credible
and believed. We call that a swearing contest," Reimer said.
Yet Attridge said that because of the testimony of the musicians on stage
that night, it will be impossible to prove any infringements.
"The first investigator got it wrong," Attridge said. "People saw him
drinking at the bar. I think he got his bars confused."
Reimer acknowledges that the investigator was drinking but said that is
necessary to maintain the undercover nature of such an investigation.
After Harvey and Courtright gave their depositions in May, ASCAP sent
another undercover investigator, who reported more copyright violations on
the night of June 3, 2003.
In August, Courtright was sued again and decided he'd had enough.
Although he intends to fight the lawsuits, he did not want to risk any
"I've tried to give local bands a place to play, but I can't monitor what
they play," he said. "Yet I'm the one facing the lawsuits."
Courtright said that in the seven years the club has had live music, he
imposed a cover charge on only one occasion. That was when Tito Jackson,
of Jackson 5 fame, played at the club earlier this year.
"They got me pegged as a small guy who won't fight, but they're wrong,"
said Courtright. "I won't pay them a damn dime unless they drop the
lawsuits," he said.
After a November settlement meeting yielded no agreement, the cases are
moving forward. If they do go to trial, one thing is clear: While
Courtright faces the prospect of a five-figure payment, the biggest losers
in the case so far are the musicians.
"It's killing the musicians," said Harvey, who started a Sunday night jam
session at Skip's seven years ago that grew into the seven-nights-a-week
offerings. "There's no place for locals to play in this town anymore,"
said Harvey, who booked the bands for Courtright.
While the pay was minimal -- less than $50 a night per musician for a
trio, for example -- and the venue small, "playing here meant something to
them," said Harvey. "It's not a big joint, but it was a proving ground."
On a recent Sunday afternoon at Skip's, fans were watching the 49er game.
The bar's paneled walls, darkened from decades of cigarette smoke, are
covered with photos of such milestones as "The Catch" made by 49er Dwight
Clark and the construction of the Golden Gate Bridge.
Near a window, an electronic keyboard lay on top of a shut upright piano,
gathering the dust that filtered through a shaft of light.
Above the empty stage, to the right of a famous movie publicity shot
showing Marilyn Monroe trying to hold down her billowing skirt, a hand-
lettered sign revealed the current state of the music: "No Music Thanks to
E-mail John Shinal at email@example.com.
Damn. More precedent.