01 Apr Do You Have a License to Play Music in your Business?
Do you have a license for that music in your store?
Business owners often go to great lengths to create a pleasant and appropriate environment for their customers. Many often use music to complement the visual and sometimes olfactory experience. For other businesses, like bars and restaurants that use live music to bring in in patrons, the music is not only adding to the ambiance, it is part and parcel of the business’ existence.
But while you are going through your checklist of items for creating an inviting experience for your customers, you might also need a license to play your favorite music, even a CD on your store’s stereo system.
I recently took part in a private discussion on Facebook with a local musician friend who plays frequently in bars and restaurants in the Washington, DC area. While he does perform his own music, like most “small artists” playing the bar circuit, he often plays covers. The starting point of this discussion was this story via Onstage Magazine which reports on a recently filed lawsuit in the U.S. District Court for the Northern District of Ohio in which Broadcast Music, Inc. (BMI) has sued a Cleveland, OH bar called 69 Taps in Medina for copyright infringement, claiming $1.5 million dollars in damages for willful violations. The suit does not name a band, but does list ten songs covered by the band and asserts a broad infringement claim.
BMI, SESAC, and ASCAP (the American Society of Composers, Authors and Publishers)are the three main performing rights organizations (PROs) in the United States. Between the three groups, nearly every song created and published in the United States is licensed by these groups. In order to hold a show in which someone other than the copyright holder (usually but not always the original artist) is going to perform a song within the repertoire of the PRO, the show’s promoter and/or the artists has to obtain a license to perform. Cover bands and bars that host cover bands thus have to get a license to perform covers of someone else’s songs. Performance licenses are a matter that is somewhat specialized.
But, which organization will I need to contact to get a license? Well, BMI and ASCAP cover about 97 percent of all music published in the United States, so you could just do those. But SESAC is growing and generally represents more European artists as well as some American notables like Bob Dylan. Chances are, you will need to get licenses from all three.
It is possible of course, to forgo getting a license. However, all three organziation employ people who travel around an area, visit businesses and then file reports on businesses that are playing music without a license. As we saw earlier, such a risk can carry big, business-killing consequences.
“But, I am not hosting performances,” you say, I just have a small store.” Well, if you are playing music in a business that is open to the public, you have to get a license. But if you are small enough, there are some safe harbors in the Copyright Law.
- If you are a business, other than a food service or drinking establishment, with less than 2,000 gross square feet does not have to obtain a license. A food service or drinking establishment with less than 3,750 gross square feet also does not have to obtain a license.
- A food service or drinking establishment with more than 3,750 gross square feet, or an other business with more than 2,000 gross square feet does not have to obtain a license if :
- the performance is by audio means only (think a jukebox or multi-CD player), the performance is communicated by means of a total of not more than 6 loudspeakers, of which not more than 4 loudspeakers are located in any 1 room or adjoining outdoor space; or
- if there is a visual component to the performance (like a televised concert) you can’t have more than 4 TVs, you can’t have more than one TV in a single room and no TV can be bigger that 55 inches in diagonal size. Plus, you can’t use more than 6 loudspeakers, of which not more than 4 loudspeakers are located in any 1 room or adjoining outdoor space.
- if you do not charge a fee to patrons to see the event and can’t re-transmit the performance anywhere else.
See, 17 U.S.C. § 110(5). To give a few hypotheticals:
- An independent book store with 1,900 gross square feet (which includes storage space) that plays a CD-Player into a four speaker sound system through the store does not have to get a license to play the music.
- A coffee shop with 4,000 gross square feet in three rooms that plays music through a 12 speaker system (four in each room) would have to get a license, because they are using more than six speakers, although only four are in any one room.
- A corner pub that is just 1,500 gross square feet with a 72″ hi-def TV would have to get a license because the limit on TV size is 55″ in size. But if the pub got a smaller TV, all would be good.
As you can see, business owners have to skirt a fine line between providing a proper atmosphere for their customers, while at the same time avoiding copyright infringement by playing recorded music or hosting live music without a license. Owners should consult an attorney for further guidance.