Think paying for music licensing is not needed in your business? THINK AGAIN!
Music licensing company BMI has filed lawsuits against 12 bars and restaurants nationwide, claiming they have been playing their songs without paying a licensing fee. One of the bars — apparently targeted at random — is Whiskey Bones Roadhouse in Rochester.
Any establishment that plays music heard by the general public needs a license. If you own a radio station or a restaurant and you want to broadcast or play music, you need public performance rights — the right to play music that the general public will hear in one way or another.
BMI negotiates license agreements on behalf of songwriters, composers and music publishers and distributes them as royalties to those members whose works have been performed.
Whiskey Bones owner Todd Powers said he’s never heard of the law. He got word of the lawsuit about a week ago, he said Wednesday, but didn’t know what it meant.
“I don’t know; I’ve never heard of it,” said Powers, who has owned the business since 2007. “So every other place in Rochester has to do this, too?”
Broadcast Music Inc. has sued hundreds of establishments across the country for playing BMI-licensed songs without a proper license, usually 75 to 125 copyright infringement lawsuits against eating and drinking establishments every year, according to past reports.
The American Society of Composers, Authors and Publishers, another large publishing rights organization, files between 250 and 300 similar suits per year.
A statement from BMI didn’t address the lawsuits specifically, but said, in part, “BMI is a private, non-profit-making organization, representing the public performance rights of more than 600,000 songwriters, composers, and music publishers. United States copyright law requires that business owners who use music in their businesses secure permission from each songwriter or composer in order to legally play their music publicly. BMI’s role as a global music rights management firm is to grant copyright clearance to music users of more than 7.5 million songs within the BMI repertoire through a single music license, so that they don’t have to negotiate with each songwriter or composer individually for permission to play their music publicly.”
Typically, BMI sends a representative into an establishment and has them record songs being played, according to information on BMI’s website. A number of lawsuits provide four examples of BMI-licensed songs being played. Once that information is relayed to BMI, its attorneys follow up by trying to collect blanket licensing fees. If that’s not successful, BMI files suit.
Both BMI and ASCAP, which each license millions of songs, say they take legal action as a last resort. Rather, they repeatedly contact businesses to ask them to pay for the music they are playing before going to court.
“We’re not here to put anybody out of business,” Leah Luddine, director of public relations at BMI, said Thursday morning.
Powers said he doesn’t remember receiving any correspondence from BMI regarding his alleged infringement and questions if other businesses, specifically Rochester establishments, are paying the required fee.
The formula for licensing fees is about $5 for each possible occupant, so a 300-occupancy bar would pay about $1,500 per year.
Many businesses that play music or TV — not just bars and restaurants — could be subject to similar lawsuits if they don’t meet the legal exceptions for square footage or have music systems that include blanket licenses.
The law is commonly policed, officials say.
So, how do you play is safe?
An amendment to the Copyright Act, designed to clarify and expand the scope of the exemption for certain performances of music in food service, drinking and retail establishments by means of radio and television transmissions, became effective on January 26, 1999. (Public Law No. 105-298, which amended 17 U.S.C. 110(5).)
The amendment law applies only to performances by means of radio-over-speakers or televisions, only if no direct charge is made to see or hear the performances, only if the performances are not further transmitted beyond the establishment where they are received, and only if the original transmission is licensed by the copyright owners — that is, the radio or television station, cable system or satellite carrier is licensed by the copyright owners or their performing rights organizations.
The scope of the exemption in the old law had been unclear, and led to much litigation. The new law contains objective standards which will enable both music users and copyright owners to determine whether particular radio-over-speaker and television performances are exempt from copyright liability. Two types of music users are exempt, under different standards: a food service or drinking establishment (defined as “a restaurant, inn, bar, tavern, or any other similar place of business in which the public or patrons assemble for the primary purpose of being served food or drink, in which the majority of the gross square feet of space that is nonresidential is used for that purpose, and in which nondramatic musical works are performed publicly”) and an other establishment (defined as “a store, shop, or any similar place of business open to the general public for the primary purpose of selling goods or services in which the majority of the gross square feet of space that is nonresidential is used for that purpose, and in which nondramatic musical works are performed publicly”).
A food service or drinking establishment is eligible for the exemption if it (1) has less than 3750 gross square feet of space (in measuring the space, the amount of space used for customer parking only is always excludable); or (2) has 3750 gross square feet of space or more and (a) uses no more than 6 loudspeakers of which not more than 4 loudspeakers are located in any 1 room or adjoining outdoor space; and (b) if television sets are used, there are no more than 4 televisions, of which not more than 1 is located in any 1 room and none has a diagonal screen size greater than 55 inches.
An other establishment is eligible for the exemption if it (1) has less than 2000 gross square feet of space; or (2) has 2000 or more gross square feet of space and satisfies the same loudspeaker and television set requirements as for food service or drinking establishments.
The new law should greatly reduce disputes as to whether particular radio-over-speaker and television performances are entitled to the exemption. And, of course, the law continues to require that public performances of copyrighted music by other means such as live music, records, cassette tapes, CD’s background music services, video tapes or laser discs require permission obtained either from the copyright owners or from their performing rights licensing organizations.
Wait… Wait… Wait… Can’t I just play the TV or the Radio?
They are, however, those agreements do not authorize the performance of such TV, cable, and radio to the public by businesses and other organizations.
Public performances of radio and TV are specifically addressed in Title 17, Section 110(5)(B) of the U.S. copyright law which states that any food service or drinking establishment that is 3750 square feet or larger, or any other establishment, other than a food service or drinking establishment, that is 2000 square feet or larger, must secure public performance rights for TVs or radios if any of the following conditions apply:
• For TV, if the business is using:
more than four TVs; or
more than one TV in any one room; or
if any of the TVs used has a diagonal screen size greater than 55 inches; or
if any audio portion of the audiovisual performance is communicated by means of more than six loudspeakers, or four loudspeakers in any one room or adjoining outdoor space; or
if there is any cover charge.
• For radio, if the business is using
more than six loudspeakers; or
more than four loudspeakers in any one room or adjoining outdoor space; or
if there is any cover charge; or
music on hold.
But, we bought the CD’s or paid for the song on ITunes? So, we are covered, right?
Although most people buy digital audio files, CDs, or games like Guitar Hero thinking they are now their property, there is a distinction in the law between owning a copy of the music and owning the actual songs that are played. When you buy an audio file, software, or CD, even those specifically marketed for business purposes, the purchase price covers only your private listening use, regardless of how they are labeled. Once you decide to play any copyrighted music publicly, you need permission from the copyright owners.