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This Tune Could Cost You!
Music Licensing at Events – Know the rules of the game before you push play
Have you ever wondered why so many Jimi Hendrix biopic movies are unable to play his original music in the films? Why a wedding filmmaker was sued after his wedding video went viral on the Internet? Why you cannot buy some famous television series and films on DVD? The answer for each is the same — music licensing issues.
Almost all music is owned and licensed by someone, and access to it comes with a price. Even a song you’ve heard all your life and sung countless times —Happy Birthday — is someone’s property. The composer may be unknown but the ownership belongs to Warner/Chappell Music.
So, does that mean you have to pay the owner of Happy Birthday every time you sing it? Of course not — as long as you don’t sing it where “a substantial number of persons outside of a normal family and its social acquaintances are gathered,” don’t rebroadcast it and don’t sing it for either direct or indirect profit.
Still, this example demonstrates an important point. More than likely, any music you’re familiar with — or even unfamiliar with — belongs to someone. To play or perform this music, you must pay this legal owner the vast majority of the times.
What about music by Bach, Beethoven, Vivaldi or some other long-dead composers? Surely, you don’t have to pay a fee for that — it must be “public domain,” right? Wrong. You can’t assume classical music is automatically in the public domain. If a composer or arranger revises and re-records it, the new version has a new copyright.
HOW WOULD YOU KNOW IF A SONG HAS A COPYRIGHT OWNER?
You can’t assume classical music is automatically in the public domain. If a composer or arranger revises and re-records it, the new version has a new copyright. The only way to know whether a piece of music is in the public domain is to check with ASCAP, BMI and SESAC to see if any of them holds the license, since these three performing rights organizations represent 95 percent of the songs ever written, including foreign songs.
If someone plans to publicly perform — either live or recorded music — at meetings, conventions, tradeshows, seminars, conferences, or any other unexpected social setting, always check with ASCAP, BMI, or SESAC to see which one holds the license to a piece of music. Then, you pay the licensing fee. Thankfully, each of these agencies maintains a list of the music it licenses on its Web site, so searching can be quick and simple.
If you use background music for a presentation, and you plan to post the presentation on your Web site, you also need an Internet license from one of the four licensing agencies. If you want to put it on a CD, too, you need a mechanical rights license from a company called the Harry Fox Agency (HFA).
WHAT TYPES OF ESTABLISHMENTS NEED LICENSES?
It’s not just convention halls, nightclubs and huge arenas. Here are just a few examples of the establishments and events covered in the forms section of the BMI Web site.
- Television networks and radio stations
- New media, including the Internet and mobile technologies such as podcasts, ringtones, and ringback tones
- Satellite audio services, such as XM and Sirius
- Nightclubs, discos, hotels, bars, and restaurants
- Symphony orchestras, concert bands, and classical chamber music ensembles
- Digital jukeboxes
- Live concerts and performance
Why can’t someone else take care of getting all these licenses for you, maybe the hotel, convention center, band or exhibitors? Because they’re not considered to be the “end users.” You are, and the end user is responsible for obtaining the license. You remain liable for copyright infringement if you use music or people perform it at your event without a license.
HOW DO YOU PROCEED WITH MUSIC LICENSING?
As CD sales have plummeted in recent years and the number of illegal sites for downloading music has grown, many musical artists are looking for any and all avenues for revenue. Your event presents a very inviting target since organizers are not always informed about the risks and obligations involved.
All three licensing agencies protect their legal rights proactively. They monitor facility organizations to find out which groups they book where and when. They do random checks of hotels, convention centers, etc. They also check organizations’ Web sites for information about meetings and conventions. Get caught without a proper license, and your prize is a nice, big lawsuit.
Lose a copyright infringement case, and your organization may have to pay not only damages, but the court costs and attorney fees incurred by the prevailing party, as well — damages that can range from $500 per song to as much as $100,000 in cases of willful infringement (as when the organization ignores a warning letter from a licensing agent).
And the licensing agencies rarely lose, because when you play their music without a license, you’re committing copyright infringement, also known as piracy, and that’s against the law. Think of licensing like paying income tax. If you cheat, you may not get caught. But if you do, you’re in trouble.
ARE THERE ANY EXEMPTIONS FROM THE LICENSE REQUIREMENT?
The only way you don’t need a license is if you meet all four of the following conditions:
- The music isn’t received beyond the place from which people perform it. For example, it isn’t a broadcast or transmission.
- The performance does not provide any direct or indirect commercial advantage to the organization.
- The performers, promoters or organizers don’t receive any fee or other compensation for the performance.
- There is no direct or indirect admission charge. (You may charge an admission fee only if the proceeds go exclusively for religious or charitable purposes or for use exclusively by an educational institution for educational purposes. You can deduct the reasonable costs of producing the performances from the proceeds.)
You can obtain a license to use copyrighted music on an annual basis from the three performing rights organizations. If you have four meetings or less in a year, you must fill out a reporting form within 30 days of the event and send in the fee. If you have five or more events in a year, you can file reporting forms quarterly and pay the fee.
The total fee depends on whether the music you use at your event is “mechanical” (meaning recorded), “live” with performers present or a combination of the two.
- Recorded music: The fee for mechanical music is $.072 times the number of attendees per event. (In this case, “attendees” means all registered attendees plus one-half of exhibitor personnel.)
- Live music: Fees for live music in the exhibit hall are determined in the same manner as recorded music, but fees for live music played outside the exhibit hall are based on the number of people registered to attend each particular function. The fee for live music is calculated daily.
- Minimum/maximum fees: The minimum fee for an event where copyrighted music is played or performed is $80, and the maximum fee is $6,450 per event. These fees are adjusted annually according to the change in the Consumer Price Index. If a number of different artists will play a variety of music, you’ll likely need a license from each of the performing rights organizations.
Of course, if you have an event without playing or performing copyrighted music, you don’t owe anyone a music licensing fee. And, you can also provide music at a reduced cost or without licensing — if you’re willing to limit your selection significantly.
STOCK AND PUBLIC DOMAIN MUSIC
Some organizations, called stock music companies, produce and house thousands of traditional and contemporary tunes. These companies hire their own composers, producers, singers, musicians and technical staff to produce the songs. Their repertoires include everything from jazz and symphonic to rock and pop. Each library retains the copyright on its own music and licenses its use. You can license their music for a small, one-time fee and use the music forever.
Or you can use only music from the public domain. Music goes into the public domain after the copyright expires. Copyrights in a musical work created after January 1, 1978 last for the life of the composer plus 70 years. For music owned by corporations, the copyrights last either 95 years from the year of first publication or 120 years from the year of creation, whichever comes first. For music written pre-1978 that’s still in its original or renewal copyright term, the total term is 95 years from the original copyright date. But again, remember just because “the music” is in the public domain, that doesn’t mean every version is. So, tread carefully.
Whatever choice you make, keep in mind licenses are cheaper than lawsuits, and be sure you follow the law. Otherwise, you could find yourself on the receiving end of a lawsuit. And then, you’ll be the one singing the blues.
John S. Foster, Esq., CHME
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