When Do I Need A License To Play Music And Where Do I
Get It?
By. W. Edward Crooks, Esq.
Do I Need A License?
Music licensing is one of the most misunderstood topics in the field of intellectual property.
People often believe that if they purchase a music CD they have unfettered rights to the
play the music in whatever environment they choose. That belief is simply not true. The
purchase of a CD only gives the owner the right to listen to the music privately. Purchasing
a CD does not give the owner the right to perform the music publicly. Publicly performing
music requires an additional license.
A “public performance” is defined by the copyright laws as a performance “at a place
open to the public or at any place where a substantial number of persons outside of a
normal circle of a family and its social acquaintances is gathered.” There are a number of
gray areas when considering what constitutes “open to the public” and “a substantial
number of persons outside of a normal circle of a family and its social acquaintances.”
Music played at a restaurant or bar is a public performance, as is streaming music on a
web site and on-hold telephone music. But music played at a holiday party in your home
is not “public.”
Assuming a license is needed, who grants them?
First, it is important to understand the basics of music copyrights. Copyright protection
exists in both the (1) sheet music (musical composition) and (2) the sound recording
(performance of the sheet music). For example, in Patsy Cline’s hit Crazy, Willie Nelson
owns the copyright in the composition, as he wrote the song, but Patsy Cline’s record label
owns the copyright in the sound recording of her performance of the composition.
Luckily, where music is played over loudspeakers, a license is required for the sheet music
only. Why? Historically, there was no “public performance” right for sound recordings. In
1995, however, Congress granted sound recordings limited public performance rights by
digital transmission. A digital transmission is defined by the copyright laws as “a
transmission in whole or in part in a digital or other nonanalog format.” Examples of
digital transmissions include satellite television, radio broadcasts, and Internet streaming.
Therefore, if and only if the music will be publicly performed via a digital transmission, a
license for the sound recording is needed in addition to a license for the sheet music.
Who Is Responsible For Obtaining The License?
Although the duty to procure the appropriate licenses can be shifted by contract, all who
participate in, or are responsible for, performances of music are legally responsible.
However, disc jockeys and musicians are rarely, if ever, licensed. In most instances, the
broadcaster, premises owner, concert or gathering promoter, or the web site owner
obtains the license. If you are having a meeting, party, or concert at an establishment and
music will be played, it is best to inquire with the establishment owner to make sure the
establishment is properly licensed.
Where Do Interested Parties Acquire The Appropriate Licenses?
If you need to procure a music license, American Society of Composers, Authors and
Publishers (ASCAP), Broadcast Music, Inc. (BMI), and Society of European Stage Authors
and Composers (SESAC) are the three major performing rights organizations that function
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as clearinghouses to license the public performance rights of music compositions.
Together, ASCAP, BMI, and SESAC can license virtually any Copyrighted song. Each has
a huge repertoire of composers that they represent, but none of the three companies
represents every Copyright owner. An ASCAP license therefore only allows the licensee to
publicly perform songs in ASCAP'S repertoire. The same is true for BMI and SESAC.
Unless a conscious effort is made to perform music exclusively from any single repertoire,
the safest choice is to acquire licenses from ASCAP, BMI, and SESAC. The repertoire of
each company is available online.
ASCAP, BMI, and SESAC have multiple license options to fit the needs of virtually any
event or establishment, taking into account the type of establishment, how the music is
performed, and how many people will be present. The choices range from single-event
licenses to annual blanket licenses.
If your establishment only uses a coin-operated jukebox that is operated by patrons, you
can purchase a single music license from the Jukebox License Office (JLO), rather than
purchase multiple licenses. The JLO is a collaboration of ASCAP, BMI, and SESAC that
was formed to simplify jukebox licenses. A single JLO license gives the licensee rights
under each of ASCAP, BMI, and SESAC repertoires.
If you are publicly performing music via a digital transmission, a license for the sound
recording will be required, in addition to the license for the sheet music. A license to
publicly perform a sound recording can be acquired either from the copyright owner or
from the U.S. Copyright Office. The license from the U.S. Copyright Office is called a
“statutory” license and can be purchased without regard to the copyright owner’s
permission.
Copyright 2007 Hahn Loeser & Parks LLP
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