In recent months, the American Society of Composers, Authors and Publishers (ASCAP) has sued at least two dozen restaurants around the country for copyright infringement. The claims stem from the restaurants’ playing of music without obtaining a license from the performing rights organization.
ASCAP and its competitor BMI (Broadcast Music International) are the two largest American performing rights societies, charged with collecting royalties for songwrites and publishers for “public performances” of songs in their respective catalogs. ASCAP’s catalog boasts over 8 Million Songs. a public performance occurs whenever a song is played on the radio, television, or the internet, and most performances (live or recorded) of music in public spaces, such as restaurants.
Both ASCAP and BMI employ investigators to roam the country identifying new restaurants, bars, theme parks or other establishments where music is used. Venue owners are required to purchase a license, typically for a single annual fee based on the size, seating capacity and type of venue.
While many businesses aren’t aware of these rules, entertainment attorneys say that suits to enforce these licensing requirements are increasingly common, and ASCAP’s senior vice-president Vincent Candilora is quoted in the Seattle Times as saying that the recent lawsuits are intended to spread the word that performing such music without permission is a federal offense.
Although the societies have targetted bars, restaurants and nightclubs, any business can be the target of enforcement actions. More and more, shopkeepers play music in their establishments to entertain customers and set a mood. If unlicensed, doing so can result in a costly lawsuit.
New and established business owners should consider carefully how music is used on their premises and obtain the necessary licenses.
Related posts:
- ASCAP sues restaurants over music use… are theatres next?
- P.R.O.s continue policy of suing bars and Restaurants. Are your licenses in place?
- Music Rights for Plays and Musicals
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If I hire a band and or Karaoke DJ, and the music they play is not word for word or note for note doesn’t that make it their work of art? And that being said, they would be the ones I would need to pay, which I already would be doing? Also, If I hire a cover band and I don’t make any additional money that night, does ASCAP pay me for the loss that their artist caused me? It seems that ASCAP is a way of double, and tripple dipping for payment. Next I suppose I’ll have to pay royalties for those anoiying commercials that play when Im trying to watch TV.
How does a local band subscribe to the proper license to perform 60 “cover” songs 24-50 times per year wherever they find work to perform in restaraunts, bars and in public festivals. While some of these venues already have ASCAP licensing, some smaller coffee shops, restaraunts and the like do not. How does a band make certain that they have their own ASCAP license to perform where they wish in public. How much does such a license cost?
[...] and threatening to sue them for playing the radio without paying for a performance license. This was going on in 2007, and there are no signs of them stopping. This year, over 50 bars have been sued by BMI for [...]
if a dj is working at a private home party, do they need a license from BMi, Ascap or Sesac?
also, if a DJ was asked to work a holiday themed “fundraiser” (held in a room at a recreation center ) for a non-profit (where they DJ was not getting paid, and the admission fee was going to non-profit), would DJ or non-profit need a license?
Venue operators DO require a license.
If I hire a karaoke company who already pays for the royalties when they purchase the music why am I required to have the license?
You’re required to have a different KIND of license than the karaoke company has. Copyright includes several exclusive rights: (1) the right to make copies, (2) the right to distribute those copies, (3) the right to perform the work in/to the public, (4) the right to display the work in/to the public, and (5) the right to make derivative works.
The Karaoke company obtains #5, to allow them to make a karaoke recording featuring music and backing vocals without leads, and to insert captioning for the lyrics. They don’t, generally speaking, pay for the right for YOU to perform the work publicly, to your patrons.
ASCAP, BMI, and SESAC handle licensing for #3… which is the responsibility of the establishment in which the music is performed.
I manage a Gift Shop and we sell CD’s. We play the CD’s so that customers can listen to them. The company we buy them from sends us a Demo so we can play them in our store for our customers. Do we need a license for that?
It seems like this is a matter of opinion of the courts (and $ from lobbyists) to differentiate the use of Art to create an atmosphere. Is it illegal to hang a copy of someone’s painting in your business to help with a visual atmosphere?? probably. If so, then something very wrong is happening with the American copyright industry. You cannot copyright a G chord, or a stroke of a paint brush, or a word for that matter…unless you want art to die off. Which will never happen, artists will evolve and adapt around these laws. Up until now, art has been copied in one way or another in order to preserve it’s legacy; i.e. Folk music. Call me old fashion, but copyrighting Woody Guthries “This Land is Your Land, This Land Is My Land” seems sadly ironic. I wish more people knew about these terrible laws that help make Fat Cats fatter.
I hope that I dont get sued for writing this.
Ascap and BMI are why the music industry is the way it is now. It’s sad to think that these companies have the kind of wealth to buy the copy rights for music that they had no part in, so that they can make MORE money by sueing innocent people. The majority of artists want their music to be heard, that’s why they write and create. I hope that the public can find a loophole around these laws because this makes me sick!!
Hello,
I have a restaurant (1,845 Square fit, 48 person capacity and have 4 speakers).
Do I have to pay the license?
Thanks.
If you have to pay for the food, beverages and other items you provide to customers, why wouldn’t you also pay for music? If you have to pay for the electricity you use to provide light for your customers, why wouldn’t you pay for music?
If a bar owner has already purchased the music via the record store or I-Tunes why would they still be required to purchase a license?
Different rights are involved.
Purchasing a copy of a CD or song via iTunes gives you only the right to play the music for PERSONAL use… not as a public performance. ASCAP, BMI and SESAC (and the other PROs) administer the rights for public performances in places like bars, restaurants, coffee shops, theatres, etc.
It has been decided that radios must be on at all times in order to recieve breaking news and Emergency Broadcasting System announcements. No entity can tell you to turn it off, or charge you to have it on. Sorry.
That is flat-out false. Not true.
I didn’t mean “had to” be on. I meant could be on, to recieve emergency broadcasts, weather updates news, etc.
Likewise for TV’s, take out the speaker and turn on the Closed Caption.
True enough, but if playing music through a P.A. System, the business is supposed to pay royalties.
We as businesses promote these artists to people who have may never heard their music. We already pay them by giving them exposure to increase their sales. It is like advertising for my restaurant. I pay for it. So why wouldn’t it be the same for them? They should pay me for advertising their music, not the other way around, or at least consider it promotion. The music industry is a bunch of crooks.
That argument doesn’t fly. Playing music in a restaurant, club, or whatever isn’t about promoting the SONGWRITERS who wrote the songs, OR the artists who recorded them. It’s about promoting the restaurant, club, etc. Promotion is when an artist goes on David Letterman and performs their song.. .and guess what, The Letterman Show, pays royalties to ASCAP and BMI Radio airplay is also a kind of promotion.. .and you guessed it, radio stations pay royalties to these organizations, too.
When you play music in your bar, restaurant, or store, you’re using the music to create an atmosphere conducive to patrons having a good time, buying food and drink, products, etc. You have to pay for the products yous sell, the food, wine & liquor you serve, the supplies used to serve it, the labor, etc., and the electricity, gas, water, etc., required to maintain the comfortable buying atmosphere. Think of the music just like the electricity, if that helps get your head around this.
When you buy a CD or iTunes download, you’re entitled to use the music for PERSONAL use. As soon as you cross into the COMMERCIAL space, where you’re performing the music for the public, a public performance royalty is required. That’s the law. If you don’t like it, tell your congresspeople. The music industry isn’t perfect, true.. But that’s not an excuse to make unauthorized use of their products.
No this is not an accurate comparison for music is not anything at all like electricity, food, etc…where electricity is concerned it is clear who is providing the service and clear who is to be paid for such a service. Music on the other hand in general that isnt clearly owned by anyone, particularly in the case of folk music for example Irish Traditional music which has no copyright with anonymous authors in 90% of what is played due to the ancient origin of such music, is not clearly owned by anyone and so is not the same as charging for electric, food, etc…
Yeah, and for that matter why don’t you pay for the gravel in the parking lot and the viewing of the decor and every other random thing around the place?
“If you have to pay for the food, beverages and other items you provide to customers, why wouldn’t you also pay for music? If you have to pay for the electricity you use to provide light for your customers, why wouldn’t you pay for music?”
Gordon,
I’m curious–a quick scan of your comments, & I don’t see any references to the allowed exemptions in the fairness in music licensing act–1998??
TJ,
Thanks for keeping me honest. You’re right. Under the Fairness in Music Licensing Act of 1998, Businesses that perform music only from licensed >
radio, television, cable & satellite sources, that do not re-transmit beyond their establishments, and do not charge admission, are exempted as follows:
Restaurants, bars and grills that are smaller than 3,750 gross square feet, and all other retail establishments that are smaller than 2,000 gross square feet, are exempt from paying license fees to songwriters, composers and music publishers, but only for their use of radio and TV music
Businesses whose square footage exceeds the amounts listed also qualify for the exemption if they use six or fewer speakers with no more than four speakers in any one room or use audiovisual equipment consisting of no more than four TV’s, with no more than one TV in each room, and no TV having a diagonal screen size greater than 55 inches, together with the same speaker restrictions.
Because these exemptions apply only to TV, Radio, Satellite and Cable, establishments that play CDs, tapes, iPods, iTunes and especially LIVE music (if not all original music), are still required to obtain licenses from the PROs. Likewise restaurants and sports bars with big-screen TVs won’t qualify.
Studies indicate–about 70% of bar/restaurants are exempt under this law. The point is–business owners need to be aware of the law–because the PRO agents NEVER divulge the law. The PRO’s need to be held accountable (for obtaining improper fees)for not informing business owners of their rights.
I don’t know where you get thee statistics. I’m skeptical. Yes, SOME restaurants and bars are exempt. The PROs have better things to do than chase after exempt venues.
can you play music from another country that is not license here in america.
Quick question, in a limousine or taxi, do I need to have a license to play music in my vehicle when passengers are on-board? What do licenses generally cost?
I own several small gyms. I play radio that comes from my cable provider for background music. I also have five TV’s playing news,espn, etc. I have first been told that I am out of compliance for the TV’s but not the background music. Now I am being told that music is out of compliance. My problem is that they do not know what the law is, how can they enforce it on my gym? I do not use music for anything other than background music, I do not use it for classes. How do I find out if I am compliant or not without just taking their word for it?
You should contact BMI and ask what their specifics are for your gym.
Muzak, for instance has all of their licensing done through ASCAP and BMI to ensure that everything is licensed. go to http://www.Muzak.com and check it out.
Iam a charter member of the local non profit blues society,also a musician from a family of musicians. i have a small family restaurant, in which i allow the blues society to hold events with live local blues musicians. these events are held after my business is closed. i provide space, lights, sound,food and drinks at no charge to the band.the bands charge a donation fee that completely goes to them.i make nothing and in fact it costs me money. i am just trying to support local musicians.do i need an ascap license to do this? thank you for you time. cs
Hi Gordon,
Thanks for answering all these questions. If I download a bunch of music onto an Ipod legally and rent that ipod out as a service would I be covered by the Ascap/BMI blanket?
ASCAP/BMI licenses would cover the performances of the songs. In the U.S., the rental of the ipod doesn’t really require a license.. It’s not really different than a DJ bringing crates of CDs to the gig and spinning them for the event.
In some countries, there are rental/lending royalties payable. Check your local rules if outside the States.
Does this affect a for-hire event space (like a wedding hall, but not just weddings.)
It would be up to the renters of the space to provide music (CD player or iPod dock provided by the space as well as installed audio gear – just not content)
Yup. A venue is a venue.
Some theaters and other rental venues are able to pass the requirement along to their renters, but you’d need to work it out with the societies in advance.
If someone owns a private business, and buys music for their ipod, can they play it on the stereo at their business? The business in question is a small gymnastics gym who is now being hounded by ASCAPs goons. They are even implying that the gymnasts’ floor music, purchased from a floor music composer who has already obtained all the copyrights, etc, is also included. Isn’t there something in the rules that pertain to this? It’s ridiculous the amount they want a small private business to pay to play legally purchased music (not the radio).
And, I just wanted to say, “all things are lawful…but all things are not expedient.” Sometimes it is just wrong to impose all these legal qualifications on every one. It is sucking the life out of people and this country.
The short answer is “no”. Just because you’ve purchased a song (whether a download, CD or whatever), you do NOT have the right to play it in public such as at a restaurant, club, gym, or other place of business. The purchase of the song grants only the right to play the song for PERSONAL use. These other uses are considered ‘public performances’, and ASCAP / BMI / SESAC are charged with collecting royalties from the songwriters and composers of the songs for that kind of use.
There ARE some exceptions and limitations, (look at the AIKEN case involving ASCAP), but generally, licenses are required.
If the floor music is original composition, and the composer has granted the rights in question, then ASCAP has no business claiming a right to collect for that… but proof can be a problem.
Frankly, paying for the licenses is likely to involve less expense than hiring a lawyer to defend and argue with ASCAP about this situation.
That’s just the thing, isn’t it? It’s easier and less expensive to just pay the fees. That gives ASCAP and the others blanket control with no checks and balances, and no one can challenge them. Like I said, the legalise in this country is sucking the life out of everyone and everything. Reason is often absent, and common sense is lost.
I disagree with your premise. It’s only appropriate to pay the fees if you’re actually legally obligated to do so. If you’re playing music in a business establishment, that’s NOT covered by the mere purchase of a CD or download. You are required to either obtain the license, or NOT play the music.
The situation you describe is actually very simple. If you want to use the product (music) in your business, you must pay for the right to do so. Merely paying 99 cents to iTunes is not sufficient. You DO have a choice. You can choose not to play music.
I know this is probably too late considering your post was put up a year ago, but it looks to me like you might be able to claim exemption. However, it could be argued that the fee you charge for the class is a “direct charge to see or hear the transmission.”
Scroll to section 5 to determine exemptions.
http://www.law.cornell.edu/uscode/html/uscode17/usc_sec_17_00000110—-000-.html
I am planning on showing my Documentary at Film Festivals which has music from artists as background music. I heard if I am NOT trying to “gain profit” from the Documentary & I am ONLY trying to use the Festival to gain exposure as a new Indie Director or gain distribution…”am I exempt”?
How does all these other “Student Filmmakers or Indie Directors” get away using these songs?
Is it true there is something called “FESTIVAL RIGHTS” that waives you “just to use the music for Festival purposes only”, but when I actually do gain distribution and start making money from the film, that’s when I need to get Licensing???
Is this true? Please, I need help before the festival.
THANKS
You’ve heard wrong. Profit is not a major consideration in copyright infringement analysis. It MAY be possible to obtain a festival only license, but you DO still need to contact the rights holders (music publisher and record label) and get it in writing.
If an artist is being interviewed by a public radio station, and is going to be present and has given written consent for some of their originals to be aired during the interview, is that breaking any laws?
As I understand it, an Artist may consent to use of works he/she controls, ASCAP/BMI’s right to license such uses being non-exclusive. BUT, this only applies if the songs in question are owned/controlled by the Artist, and not by a publisher or third party songwriter.
What if a business just turns on the radio? Would that be against the rules? How could that be okay, but to pick out your favorite songs and artists be against the law? I think songwriters & bands should be thankful to anyone giving them free public exposure. And not be suing them.
Your point of view is a common one, but songwriters can’t make a living from “free public exposure”. Remember that the songwriter isn’t always the performer who recorded the song. Songwriters only get paid when artists record and sell copies of records, or when their songs are used in a commercial manner. (using music in a retail store or restaurant is a commercial, rather than a private, personal use).
When a business uses music to create its ‘ambience’ or atmosphere, it derives value from that music. If this weren’t the case, few businesses would bother to play music in their store, restaurant, or whatever. So, to answer the question: If a business plays the radio it MAY be required to obtain licenses from the Performing Rights Organizations…. it depends, though, on the WAY the music is played. So, for example if a shopkeeper keeps a small, portable radio on a shelf behind the counter, a license is probably NOT required. But, if the store has an installed stereo system, with multiple speakers throughout the store, etc,… then a license probably IS required.
It should also be noted that the radio station’s programming is itself a copyright-protected performance, and will also require a license. So, you’ve got to negotiate with the station, AND the songwriters (or ASCAP./BMI/SESAC)
This is why some businesses opt for a system like MUZAK, which provides one-stop shopping for music to use in their establishments.
We own a small business and we receive SESAC & ASCAP phone calls all the time because we play music. We already pay a fee to xm radio and we pay the bands to play music at our restaurant. I hardly think that the musicians that have made millions already on their product are struggling, I do know that we as a small business are struggling to keep up with everyone trying to nickle & dime us for every little thing! You can’t tell me that these organizations are a non for profit when they start negotiating percentages on licensing fees.
Unless I’m mistaken, your XM license is for private use, and doesn’t cover the public performance rights that are the purview of ASCAP and BMI. You don’t have to believe that these organizations are non-profit, any more than you have to believe that the earth is round, but it is, nevertheless, the truth.
The fact is, when you play music in your business, you are using that music to create part of the ambience, the atmosphere that makes it attractive to your customers. It’s appropriate that the people who created that music should receive compensation from you for their help in making your restaurant a success.
The argument that these musicians are already rich is irrelevant… they created something that you obviously perceive as valuable… so they should receive compensation if you use their creations to advance your own business interests. If you don’t like it, you are certainly free to run your restaurant as a “music free” establishment.
Suppose a customer came in to your restaurant, ordered a big meal, ate it, and then walked out without paying… “because the owners already have enough money”. Isn’t that what you’re doing when you use music without obtaining the proper licenses?
You are mistaken.
http://www.xm4biz.com/
Well, I stand corrected about the XM license (assuming that the original commenter is in fact using a business license from XM…. ) Nevertheless, when you have bands perform live in a venue, it IS necessary to have the ASCAP and BMI licenses in place UNLESS the bands are playing all original, UNpublished songs.
We live in a small mobile home park (300 units) which is governed by a Home Owner’s Association. We have potlucks twice a month with live entertainment. The entertainers are paid through a free-will offering. We do not allow anyone from outside our park to attend; these are private functions. We also have a 20 member chorus which performs twice a year. Our park currently has a license with BMI. Now ASCAP is wanting us to license with them. Are we required to have either or both licenses?
It’s likely that you DO need to have licenses from both societies. Best advice is to consult with a knowledgeable lawyer to investigate, since there are some exceptions that may cover your situation.
The good news is that these licenses are (as I understand it) relatively inexpensive…
Thanks so much for your prompt reply.
You are full of it. There is a minimum fee of over $300. That’s hardly “inexpensive”, unless you are getting your money thru racketeering, which BMI & Ascap do.
I’m with a small roller derby team that contracts with a local roller derby rink for putting on games. The team pays the rink for the event, and the contract states that the rink is responsible for supplying a DJ and music.
The rink has licenses with ASCAP and BMI. Does the roller derby team need one to?
Thanks!
In most cases, the venue’s license(s) should cover the situation.
bmi and the rest of these goons are just another example of big business beating on the little guy, millionaires wanting money from the poor and struggling, if i purchase a cd i should be able to play it anywhere anytime the artists got there money at the time of purchase
Ken,
Your interpretation misses the mark. The songwriter is entitled to be paid each time a work is “performed” publicly. That’s what BMI and ASCAP collect. For what it’s worth, most songwriters make VERY little money from record sales, unless they’re also the recording artist. The performance royalties make up the difference (somewhat).
This isn’t about big businesses. Most songwriters are struggling artists trying to eke out a living by doing what they love. Shouldn’t they be paid something when a restaurant uses their work to create an ‘ambience’ that’s conducive to the sale of food and drink?
My church is planning on starting a small coffee house for teenagers and would like to play varying cds in the background. Would a license be required for this? We would also like to play music videos on certain nights, are there any restrictions on those?
Hi,
Does playing music through the radio require paying a company such as BMI? What about playing talk radio, such as NPR?
Thanks.
I have two questions regarding playing music in my small Mexican Restaurant. I have seen web sites that will sell CDs or downloads that are ‘royalty free’. If I played these songs would I be in violation of the copyright laws? If I buy a self-produced CD from a guy singing his own songs would I be okay?
I am an acoustic musician. Could I purchase an ascap license that would allow me to perform at various venues?
Hi, We are planning to open a gocery store. Is there any control over music produced outside of US? I am planning to buy some backround music from online stores that advertise royalty free music. Do we need a license? If yes, do we need license from BMI and ASCAP both?
I own a Greek restaurant in New York City. We play background Greek music mainly old traditional.
Of what I know ASCAP is an American organization protecting and distributing royalties to various artists. I want to know how it works in my case that we only play Greek music.
Thank you and hope to hear from you soon.
The copyright act is FEDERAL law, and applies throughout the U.S.
Public Domain (by definition) means that the work is not protected by copyright law, and no license is therefore required.
Whether a work is in the public domain can be a complicated analysis, since the duration of copyright protection varies depending when the work was originally created, published, whether notice was affixed, etc.
Does the “Title II of the Sonny Bono Copyright Term Extension Act” apply to all states and there any licensing issues with music regarded as in the public domain?
Frank -
I’m responding to you privately, since you’ve mentioned some specifics, but generally, yes the store will have to pay ASCAP/BMI if they’re playing the songs.
You, however need a different kind of license, since you’re not making “public performances” covered by ASCAP/BMI…
Greetings!
I’m starting a business that provides music for businesses. What type of fees apply to my situation since my cusotmers businesses vary in size? I intend to use pre-recorded music. If I acquire the proper licenses (ASCAP/BMI) does the store have to pay too?
Sure. Anywhere music is performed (whether live or recorded) for the public, a license is required. BMI (and ASCAP, SESAC, etc) have special licenses for this kind of operation, which are, generally, quite affordable.
I’m not aware that these performing rights societies are actively pursuing many of the smaller festivals and events that you describe, but I’m certain that the larger, better known festivals are on their radar.
Best practice is to contact the societies (you need licenses from all 3, in many cases), to obtain the necessary license BEFORE the event.
The help of an experienced entertainment lawyer (like myself) can be invaluable in determining what license(s), are required.
Are you familiar with any situations in which a festival has been required to enter a contract with BMI. I am talking about the type of festival that happens in many local communities (examples near me include the shrimp festival on Amelia Island, a blueberry festival in Alma, Georgia, etc.). Thanks, Scott
“Royalty Free” usually means that no ASCAP, BMI, or SESAC licenses are required, but you should check the royalty-free licensing documents very carefully to make sure.
This is actually a more complex question that it seems at first blush. Much depends on the radio used, whether it’s an installed stereo system with multiple speakers, or a portable radio sitting on someone’s desk. Also relevant is the kind of business in which it’s being played.
You can visit the ASCAP and BMI websites and investigate a bit. If these organizations have already contacted you about licensing, I’d say it’s likely you’re subject to the requirement. Consult a lawyer who can help you evaluate the situation, however, to ensure you’re required to pay.