John Pernicano fights ASCAP over Cole Porter

The following objects in Pernicanos Pizza House arce red: the candles, the booths, the cloth roses, the lamps, the waitresses’ shirts and aprons, the Chianti, and parts of the pizzas. The plastic tablecloths are red-and-white checked. It is the quintessential Italian restaurant.

There are two irregular objects in Pernicano’s Pizza House on Turquoise Street, where Pacific Beach meets La Jolla: a full-size gondola on one side of the restaurant and an upright piano in the opposite corner. But while the canopied boat (seating two children for dinner) is hard to miss, the piano is camouflaged by a wood-grain panel matching the wall. The instrument escapes the notice of most diners, until John (“everybody calls me Johnny”) Pernicano starts playing it.

Pernicano, who opened the family restaurant in 1957, says he's no professional musician. “I never practice.” the sixty-seven-year-old restaurateur explains. “I just play. Whether (the customers] like it or not, they get to hear it." Pernicano keeps no entertainment schedule. Weeks pass and he doesn't touch ivory. “I play whenever I feel like it.” he says. “Instead of hassling my kids in the kitchen. I watch the dining room from the piano.” So when the local representative from the American Society of Composers. Authors, and Publishers (ASCAP) tried to collect royalty payments after hearing copyrighted songs played in the pizza house, Pernicano treated the request like a joke. In a confrontation with ASCAP representative Ken Harrison, who accused the restaurant owner of playing the Cole Porter song “Night and Day.” Pernicano recalls saying, “Sure I play night and day. I play any time. I play the song, too."

Pernicano still considers the matter “a farce." but ASCAP is not laughing. The seventy-one-year-old national organization, which licenses the use of copyrighted music that is publicly played, wants $338 in yearly fees from Pernicano. If 2000 bars, restaurants, shopping malls, dance schools, and other music purveyors in San Diego County have to pay for licenses, so should Pernicano, ASCAP asserts. “It’s a black-and-white situation of private property rights,” says one of the company's Los Angeles supervisors, who asked not to be named. (Harrison, the local representative, also cited company policy w hen declining to discuss the matter.) Comparing Pernicano's actions to stealing a car from a driveway for a joyride, the Hollywood spokesman says. “People who own these songs deserve to be paid by those who use them.”

Pernicano maintains that he isn't making any profit from the songs because he doesn't advertise or charge for his entertainment. “I don't even have a tip tray,” he adds.

“What (ASCAP) is doing is okay if you're a big showman, but they should forget about me."

ASCAP can’t forget about Pernicano, according to its spokesman, because discriminatory enforcement of copyright laws is forbidden by the federal government. Little fish like Pernicano have to be caught regardless of administrative and legal cost, which can far exceed the licensing fee collected in cases like this. The ultimate ASCAP action is a federal lawsuit, usually filed after a year of written and spoken threats. ASCAP and Pernicano's wrangling has entered its fourth month, and their attorneys have have already exchanged letters. The restaurant owner, who plans to retire and let his children take over the operation, says, “Let them do what they will. I can be just as firm as they can.”

There are twelve Pernicano brothers altogether, some of whom own the five Pernicano restaurants in San Diego County. But only John's place has a piano, and according to its proprietor, the house of pizza will continue to have a piano player as long as he feels like playing.