1982: Court ruling leaves The Gap singing the blues

Posted at 7:00 AM, Apr 14, 2022

INDIANAPOLIS — It was business as usual at The Gap store inside Lafayette Square Mall when WRTV reporter Karen Layton and a photographer showed up in April 1982.

Shoppers were shopping and the radio was playing on the store’s sound system — which is exactly why Layton was there.

The U.S. Supreme Court had just weighed in on the retailer’s use of radio in its stores.

The ruling stemmed from a case involving The Gap and seven publishers of the American Society of Composers, Authors and Publishers or ASCAP.

ASCAP sued The Gap for playing radio stations inside its 525 stores arguing the practice violated federal copyright law. The lower court agreed.

When The Court returned the case to the lower court, it in effect allowed the lower court’s ruling to stand.

Citing the Federal Copyright Act of 1976, the court found consumers had the right to play radio equipment inside private homes, but not the public without obtaining licensing to play the music or subscribe to a commercial background music service.

A manager inside National Shirt told Layton, “I think it’s kind of stupid. A lot of times it’s so dead in here you need the music just to keep momentum in the store.”

Another store manager said the music, “creates a mood for your shoppers.”

Layton also spoke with WENS-FM General Manager Jeff Smulyan.

“The artist has been protected because when the radio station plays the music, the radio station’s paying a fee up front, so obviously the artist is being protected as soon as the music is played,” said Smulyan. “The fact that it’s being played in two stores or 4,000 stores or to four million people, it’s irrelevant because ASCAP and BMI get their percentage off the top from the radio stations.”