There will be no more "Cecilia" at the Capitol Grille until someone pays Paul Simon.
The music industry is suing the Main Street restaurant and lounge for letting its musicians play songs without paying royalties to the writers.
The suit, filed by Broadcast Music Inc., several other performing rights organizations and artists like Kid Rock, Sheryl Crow and Paul Simon, alleges that the Grille illegally used 13 songs. When musicians played songs like Cheap Trick's "I Want You To Want Me" and the Doobie Brothers'"China Grove," the Grille made money but didn't give songwriters a cut, according to the suit.
Neville Pereira, co-owner of the restaurant, said he can't be responsible for every song played by the musicians he hires. He has asked the court to dismiss the case, which was filed in U.S. District Court in Concord about a month ago.
In the meantime, musicians like Chris Child, who has played at the Grille most Friday nights for three years, have to cut the songs from their repertoires. Child, 34, of Keene, said losing Simon's "Cecilia" is the worst.
"I can't get by not playing that song on a Friday night," he said. "Everybody knows Paul Simon wrote it."
Any business that plays music, whether it's a nightclub that hires live bands or a health club that plays CDs, must seek permission from songwriters to use each song, according to BMI's Web site. Even songs on a jukebox require a licensing fee, said Paul Hodes, a Concord entertainment lawyer and musician.
"It's the song that's protected," Hodes said. "It is a little-known but fairly regular occurrence that establishments that play live music or recorded music are sued by the performing rights societies whose business it is to monitor and collect performance royalties for their members."
But companies like BMI can't catch copyright infringement all the time. So they tend to focus on larger venues, not the performers, Hodes said.
"If you're a bunch of kids playing in a garage, BMI won't sue you,"Hodes said. "If you're a bunch of kids who move from the garage to a concert venue . . . BMI could be looking."
To use copyrighted songs, restaurants like the Grille must buy a performing rights license, which ranges in cost from a few hundred dollars to more than $8,700 annually, according to BMI. Businesses are charged based on many factors, including how often music is played, whether people dance or sing to it and how many people tend to show up and listen.
BMI says it warned Grille owners Pereira and Fred Fricker the restaurant was using music illegally, according to the lawsuit. BMI did not return calls for comment yesterday, but spokesman Jerry Bailey told New Hampshire Business Review that the Grille had been warned by phone 27 times and in writing 15 times. BMI representatives also visited the restaurant in person, Bailey said.
Pereira said he remembers receiving a few letters, but he didn't understand why he had to pay for music. Before he took over the Grille five years ago, Pereira managed the Chateau Restaurant in Manchester. During his 12 years there, live bands played at hundreds of weddings, and no one ever bothered him about licensing fees or copyright infringement, he said. He thought the letters from BMI and other companies were a scam, he said.
BMI and the other companies and artists named in the complaint are suing Fricker and Pereira for licensing fees, attorney fees and court costs. Pereira said he doesn't know how much it will cost, but he's hoping the dispute can be settled out of court.
The Grille has had live music performances several nights a week for the last three years, and Pereira said he has no plans to stop them. But he doesn't think it's fair that he should pay for both the musicians and the songs they sing.
"I think they're making an example of us," Pereira said. "If it's across the industry, and everybody's paying this, then we're more than willing to."
Child, who plays rock 'n' roll songs on acoustic guitar every Friday at the Grille, said popular songs should be available for performance free of cost. Child said he wouldn't mind if his own songs were played publicly as long as he was verbally acknowledged as the songwriter.
"Other people have written better songs, and they're there to be played," he said.
But Hodes, who advises clients about copyright protection, said a musician should get paid for his or her work every time it is used.
"Somebody created that music,"Hodes said. "It's very important to protect their creations."