Public performance of musical works — it just doesn't pay not to pay


Did you hear the one about the Canadian bar-type establishment that offered live music and karaoke but didn’t pay for the right to play the music?  That was the subject of a recent Federal Court decision. The punchline?  The owners of the bar were ordered to pay $143,682.97, plus post-judgment interest.

As the court noted, the plaintiff is a copyright collective that grants licences under Canada’s Copyright Act, for the public performance and communication to the public by telecommunication, in Canada, of musical and dramatico-musical works. The plaintiff owns and/or administers the right of public performance in Canada, and the right to authorize and permit such public performances, in respect of virtually all popular musical works in current use in Canada.

The defendants carry on business as a cabaret, café, club, cocktail bar, dining room, lounge, restaurant, roadhouse, tavern, karaoke bar, or similar establishment, in Canada.

The defendants had not obtained from the plaintiff the required licences and, as one might expect, the plaintiff sued.  The defendants failed to defend the action and the plaintiff obtained a judgment by default.  As part of that judgment, the court ordered that the matter proceed to a reference whereby the plaintiff would have the opportunity to prove to the court the amount to which it was entitled. The defendants, although served with the plaintiff’s judgment and other materials, once again did not respond.  The reference went forward without them.

The judge conducting the reference noted that, as “referee,” she was to “adopt the simplest, least expensive and most expeditious manner of conducting a reference.”  Following the wording of the default judgment, she determined that the plaintiff was entitled to both its damages and the defendants’ profits. 

In the latter regard, the court noted that “where defendants fail to appear and to protect their interests by providing appropriate information and documents, and the plaintiff has had no access to the defendants’ records, it is not improper for the referee to estimate the plaintiff’s damages and lost profits in a ‘rough and ready’ manner.”

In the result, the judge acting as referee only had the evidence of the plaintiff before her and, applying the rough and ready approach, albeit in a principled manner, calculated the plaintiff’s damages and the defendants’ profits, and then added prejudgment interest.  To that total, she then awarded the plaintiff costs and disbursements in coming to the total amount of the judgment of $143,682.97.

The lesson to be learned here, apart from never ignoring legal proceedings, is that failing to pay the piper is no joke.