Copyright Rights Demystified: A Practical Guide to Copyright Licensing, Part Duex

First and foremost, my deepest apologies for the untimely break in blogging…right in the middle of this series. Things at New Leaf (hyperlink) have been pretty nuts, and then I took a last minute trip to Vegas with my fiancé for a business trip, and, well, you know, there’s no excuse. Back I have returned!

Today we’ll be covering one more very important right in the copyright owner’s “bundle”: the right to publicly perform.

The right to publicly perform is actually a pretty sneaky beast in copyright law. First, let’s look at actual “live” performances, because this one is a TINY bit more straight forward. Basically, the Copyright Act says that if you’re performing for anybody more than your close family and friends in a private dwelling, it’s a public performance. So this excludes things like parties in a private residence (so no, Moms don’t have to get licenses for their kids’ birthday parties, and you don’t have to get one for this weekend’s frat party). However, this technically doesn’t exclude “private” parties in places that are generally open to the public, or which cater to events. So, if you have a birthday party, a wedding, or a bar mitzvah at a public event hall, even though the general public isn’t allowed at your event, a license needs to be obtained. Please note this also includes outside venues, such as parks with public stages.

But before you freak out about licenses, there’s good news! This is NOT your responsibility as an individual hosting the event; it’s the job of the commercial venue itself. Public performance licenses are issued by Performance Rights Organizations. Most countries only have one, but in the essence of true capitalism, in the US, we have three: ASCAP, BMI & SESAC. If you own a venue, ASCAP & BMI and absolute musts – each hold a huge catalogue of music, and each has active scouts in every area of the US that will check in on the venues regularly to make sure they’re up to date on their licenses. SESEC used to be somewhat optional because it was a private, for profit company that held a very small and somewhat obscure catalogue of music, mainly classical (and for you music nerds, by “classical” I mean the mainstream genre encompassing all orchestral music… not the classical period of music… all of which is now in the public domain ;) ). However, SESAC has been expanding its catalogue over the last decade or so, and I would now advise to play it safe and get a blanket license for all three organizations.

So how do you get a license? It’s relatively easy and can be done online for all three organizations - ASCAP, BMI & SESAC. I think the better questions are these, though: 1) How much will my license cost? And 2) Do I even need a license?

The fee for your annual license is based on a crazy complex calculation, which varies for each organization, based on a variety of factors such as square footage, number of speakers, number of events, how often you have live performances and how often you pump music through the speakers, etc. Thus, Madison Square Garden is going to pay TONS – not only are they a huge arena, but they basically play music all the time between concerts and sporting events. In contrast, a town park may only pay a little for summer chamber music concerts. However, the number one question I get from small businesses is ‘Well, I’m only a small business that plays the radio/CDs. Do I have to pay and, more importantly, WHY I have to pay?’ The Copyright Law is very specific on exceptions to licensing, including down to the square footage. If you’re considering foregoing a license, I would STRONGLY urge you to read the article I just hyperlinked, and understand your rights. (For example, playing the radio is different than playing CDs, etc) If a scout tried to tag you on it, the fines are be substantial and, if you truly understand you don’t need to pay, you want to be able to assert that with certainty.

One last thing that is important to remember if you’re a copyright owner: public performance rights belong to the owners of songs, not recordings; basically, songwriters and publishers – NOT record companies. This is generally why songwriting and publishing is actually more lucrative than the recording business; royalties are paid straight to these folks from the PROs without deducting overhead or other expenses. It’s something to keep in mind when you’re paying your license bill as well – in a way, you’re funding the source of music creation more directly.

Alright, I think that pretty much covers us on public performance. On Monday, we’ll hit up digital transmission: how it is different from “regular” public performance, and who needs to be concerned about it.


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