Film and television composers are facing the possible loss of a third or more of their royalties, should Congress pass legislation to exempt bars and restaurants from paying for some of the music their patrons hear.

The two biggest performing rights societies, the American Society of Composers, Authors and Publishers (ASCAP) and Broadcast Music Inc. (BMI), have launched a major campaign to stop the proposed legislation and similar bills in many states. But the National Restaurant Association, the lobbying group behind the move, is a powerful force in Washington politics.

In February, Rep. Jim Sensenbrenner (R-Wisc.) introduced the “Fairness in Musical Licensing Act of 1995.” The bill, H.R. 789, would amend federal copyright law to exempt restaurants, bars and taverns from paying music-licensing organizations for “incidental music” heard on radios or TV sets in those establishments.

The licensing of that music brings in millions of dollars annually to the organizations, which in turn distributes the money to their membership (65,000 in ASCAP, 1 00,000 in BMI). If passed, the impact on composers and songwriters will be “at least a 15% to 20% loss in income for every single one of these people regardless of musical genre,” says Bill Thomas, ASCAP director of public affairs.

“It would cost most songwriters, composers and publishers between 20% and 40% of the income that they receive at the moment,” says Fred Cannon, BMI legislative liaison.

Central to the issue is the ‘blanket’ license offered bars, taverns and restaurants by ASCAP and BMI. According to Thomas, the average cost for such an ASCAP license amounts to $1.58 per day, giving them unlimited use of music in the ASCAP cata log; Cannon says a comparable license to use the BMI catalog averages about 1.20 a day.

But restaurant owners claim people patronize a restaurant for the food, service, atmosphere or location. “Nobody picks a restaurant for the quality or content of its background music,” says Ralph O’Brennan, president of the Restaurant Association. He believes owners should pay for music (such as a live band) that contributes to “direct profit” for the restaurant.

The terms “incidental” and “background” are what trouble members of the music community. “Toothpicks, water, cream and sugar are ‘incidental’ items also supplied to restaurant customers free of charge,” points out composer Bruce Babcock, “yet restaurant owners have not asked Congress to exempt them from paying for these items.”

Babcock (Emmy-nominated composer for CBS’ “Murder, She Wrote”) and Jay Chattaway (Emmy-nominated composer for UPN’s “Star Trek: Voyager”) are co-chairmen of the performing rights committee of the Society of Composers & Lyricists, which counts among its members many leading film and TV composers.

Money collected from blanket licenses goes into the pool that pays film and television composers. If a TV set in a restaurant is playing a “Murder, She Wrote” or a “Star Trek” that contain music by Babcock or Chattaway, the composers are entitled to payment under American copyright law. H.R. 789 (and a companion bill yet to be introduced in the Senate) could, according to ASCAP and BMI officials, effectively wipe out such royalty payments to composers whose music is heard on TV or radio broadcasts playing in public places. It would not apply to public domain music, such as most classical works.

This, Babcock believes, is an important battle on the field of intellectual-property rights. “Many people cannot understand that songs are property,” he says. “Intellectual property is as tangible and deserving of protection as any form of ‘real’ property.

“American songwriters are small-business entrepreneurs who have believed that hard work can pay off for them because our copyright laws, created by Congress, protect them from those who would steal their property.”

It’s particularly crucial to Los Angeles composers, notes Chattaway, because they represent a significant percentage of the full-time, professional music writers who would be hurt by such legislation.

“The majority of SCL members are film and television writers, and a lot of us depend on the residual income from television and radio, and all these sources, to help us make a living,” he says.

In addition, up-front composer fees have been reduced in recent years as music budgets in TV have been generally slashed. “And now we’re threatened with the residual back-end being reduced. It’s sort of a double hit.”

Similar legislation has been introduced in 24 states, according to BMI’s Cannon. “We’ve been able to defeat, or in some way to stop, most of the bills,” he reports. “At this point, seven have passed (of which) four are com promise bills and three are bills that we find are unfavorable to the way (the licensing agencies) conduct business, and the way we should be able to collect royal ties.” BMI and ASCAP are likely to seek federal court review of some of these as unconstitutional.

The New Jersey bill (the model for legislation in other states) has been conditionally vetoed by Gov. Christine Todd Whitman as likely to conflict with federal law. The New York Times, in an April editorial head lined “Legitimizing Music Theft,” also opposed the legislation.

But the restaurant lobbying group (“the other NRA,” as The Wall Street Journal recently referred to it) represents 200,000 establishments, has close ties with House Speaker Newt Gingrich and was the fifth largest donor to Republicans during the 1994 campaign. Talks between the two sides continue in an effort to work out a non-legislative solution to the dispute; the most recent such meeting was held July 28 in Washington.

“The NRA is a very powerful organization, and if all of us in the music community sit by and do nothing, they will get what they want, which is free (use of) copy righted music,” ASCAP’s Thomas warns. “The time to be outraged isn’t when the royalty checks start getting smaller; the time to be outraged is now.”

Worries BMI’s Cannon: “This is just the beginning of an onslaught on copyright and intellectual property. H.R. 789 only addresses radio and television transmissions. (The NRA has) already made it clear through their weekly newsletters that the next step will be CDs and tapes. From there on, I can see it being cable, films, video and so forth.”

Comments Babcock: “We have just reached an historic agreement with China which corrects many of their abusive intellectual property practices” involving American films, TV and music. “It would be truly ironic if our own Congress chooses to gut our protection here at home.”