East End wineries face the music

You’re in the tasting room of an East End winery, sampling a corpulent, jammy cabernet. Life is good. It gets even better when the guitarists in the corner start playing your favorite song, “Unchained Melody.”

But wait. A guy at the next table is writing something in a little black book.

Uh oh. You’ve just unwittingly participated in something that could end up costing the vineyard thousands of dollars. Why? Because “Unchained Melody” isn’t unchained at all.

In fact, it’s one of some 8.5 million copyrighted songs whose use is protected by the American Society of Composers, Authors and Publishers, better known as ASCAP.

In recent weeks ASCAP has been cracking down all along the East End’s wine trail. Chris Baiz of Old Field Vineyard in Southold said it began for him with a few letters offering a license that would cover use of all ASCAP songs for the one-year fee of $446. The number, based on such factors as size of venue and number of performances per week, is at the low end; some other vineyards are being charged more than double that.

Those first messages were followed last week with a mailed package noting that Old Field’s payment had not been received. To achieve harmony, the enclosed forms should be filled out and a check sent. Otherwise, unlicensed use of copyrighted material could result in damages of $750 to $30,000 per infringed-upon song, plus attorney fees and court costs.

As of last week Baiz had not written the check for a number of reasons. One is the assumption that Old Field hosts as many as three musical acts per week. “We do zero,” Baiz said.

But other vineyards do plenty. And so, in Baiz’s role as president of the Long Island Wine Council, he was planning to consult with the council’s executive director, Steve Bate.

Bate told me it all began with the Winterfest jazz series, created to help fill East End tasting rooms during the last two off-seasons. “It’s been very successful,” he said. Enough so, apparently, to catch the attention of Wendy Campbell, ASCAP’s area licensing manager.

After hearing of her stops at regional vineyards, Bate called Campbell to seek a compromise and preserve Winterfest. Perhaps a “festival fee” could cover all vineyards at a more reasonable cost. Or maybe a governmental umbrella could be created, since the event has county and state support.

So far, no luck. Meanwhile, the crackdown has stretched to winery music of all seasons, and vintners have begun trumpeting their displeasure.

“Are they trying to put us out of business?” asked the events manager at one area vineyard. “How can they control all the music played in the world? It’s going to cost more to patrol than they can collect. It’s absurd.”

Intellectual property lawyer Betty Tufariello of Mt. Sinai, who has worked for the Wine Council before, had some thoughts on that. “ASCAP is very aggressive in promoting and protecting its members,” she said. By throwing its net hard and wide, covering even small vineyards, the company seeks to protect its turf. “It’s not so much the money,” she said. “Principally, they don’t want to open a door and create a slippery slope. If they let one vineyard do it, where do they draw the line?”

She expressed sympathy for ASCAP’s herculean task of protecting its writers, but also concern for the struggles of vineyards and musicians.

To her the key question is: Do vineyards use music in a commercial nature? In her opinion, no. “They’re not selling tickets,” Tufariello said. “They’re selling wine and using the music as background.”

Yes, but they’re using something that doesn’t belong to them, said Vincent Candilora, ASCAP’s senior vice president of licensing. That can be remedied with a license, which he considers cheap for what it affords: access to 8.5 million songs. “I never understand the type of resistance we get sometimes over what is essentially such a low-cost item,” he said. “On a day-to-day basis, it’s probably less than a dollar a day.”

That’s not quite true for vineyards, which tend to offer music twice a week or so, and only during tourist seasons. But Candilora is unmoved when people lament about the struggles of the small-business person. His response: “You want to talk small-business person? Become a songwriter.”

Jeff Miller / Long Island Business News / July 3, 2009