Can playing music at your place of business actually violate copyright laws? Don Simon gives us a few notes…
Business owners often spend a lot of time, money and effort creating just the right ambience for their restaurants or stores. Furniture, lighting and fixtures all help comprise a business’s welcoming atmosphere. Music can also play an important role in this too. But did you know that the seemingly innocent act of playing a radio at one’s place of business might actually violate the law?
Music is one of the areas of creativity protected by copyright law whereby songwriters have the right to control the public performance of their songs. A public performance is one that occurs in a public place where people gather (other than a small circle of a family or social acquaintances). It also is a performance that is transmitted to the public by way of radio or TV broadcasts and the Internet. Business owners who wish to perform (or play) songs at their establishments must first obtain public performance licenses to do so.
As you can imagine, it would be extremely difficult and time-consuming for every restaurant, bar, store, etc., playing potentially hundreds of songs per day, to acquire public performance licenses from every songwriter. It would be equally as daunting for songwriters to grant public performance licenses to every restaurant, bar, store, etc.
Enter the performing rights organizations a.k.a. “PROs.” These include the American Society of Composers, Authors and Publishers (ASCAP), Broadcast Music Inc. (BMI) and the Society of European Stage Authors and Composers (SESAC). Songwriters and music publishing companies become “affiliates” of one of these PROs. The PROs then grant blanket performance licenses to businesses allowing them the right to play any song from that PRO’s repertoire. The PROs collect license fees and remit royalty payments to songwriters and music publishers. These fees can range from a few hundred dollars to several thousand per year and are based on several factors including the number of speakers, audience capacity, square footage and how often songs are performed.
“For an average-size business, the annual fee works out to be around $2 per day for one blanket license,” says Vincent Candilora, executive vice president of licensing at ASCAP. “Music follows the rules of property. We may think ‘they’re playing my song,’ but it still legally belongs to the songwriter who created it and the music publisher who markets it. When you use other people’s property, you need to ask for permission first.”
If you are operating an establishment that features music as part of its ambience, you should expect to be contacted by one or more of these PROs. When that time comes, here are a few things to remember:
1. Educate yourself on public performance licenses. Know that playing unlicensed songs may be a violation of copyright law and may allow the songwriter to recover damages ranging from $750 per violation to $150,000 if a court finds the infringement to be willful. So think of a public performance license as one of the many costs of doing business. Understand that acquiring one is the responsibility of the venue, not the musician or performer. Also, ownership of a CD, MP3 file or sheet music does not automatically grant a public performance right. Typically, those items are sold only with a license for private home use.
2. Acquire blanket licenses from each PRO. Songwriters and their music publishing companies are spread across all three PROs. Play it safe by getting blanket public performance licenses from ASCAP, BMI and SESAC.
3. Negotiate the license fee. Ask the PRO to consider the type of business you own, its square footage, how often and how prominent music is played, and the amount of foot traffic. Repeat this for each PRO. You are in a better negotiating position if you are proactive rather than reactive. Don’t be afraid to enlist the services of an attorney who has experience in negotiating public performance licenses.
4. See if your business qualifies for an exemption. Businesses under 2,000 square feet and restaurants or bars with less than 3,750 square feet can play music from a radio, television or similar household device without a public performance license. There must be fewer than six speakers, and customers can’t be charged to listen. Other limited exceptions exist for educational and charitable functions. Before going this route, it’s advisable to hire an attorney who is well versed in copyright law to help you determine if your business is exempt.
5. Explore music service alternatives. Musak, DMX, SiriusXM and others offer a wide range of programming options that can help solve potential legal issues. Public performance license fees are often included in the subscription price. “I’ve been using Muzak for about 10 years,” says Aaron Confessori, co-owner of Westport Café and Bar. “[The performance licenses] are included in my monthly fee of less than $40, all in. They are very easy to work with.”
Poet and novelist Victor Hugo once said, “Music expresses that which cannot be said and on which it is impossible to be silent.” Music is an art form that helps create ambience, set the mood and convey emotion, but it’s also a type of property. Take care to ensure that all the proper licenses to use that property are in place so you can let the music play … legally.