Monday, October 28, 2013

Facing the Music

Every so often I notice a news item about a lawsuit being brought by ASCAP or BMI to enforce their music licensing rights against some small bar or restaurant.  ASCAP ( American Society of Composers, Authors and Publishers) and BMI (Broadcast Music Incorporated) are performing rights organizations (PROs), as is the much smaller SESAC (Society of European Stage Authors and Composers), each of which licenses and enforces the public performance rights of various music copyright holders.   The news articles frequently present the PRO as aggressive, maybe even bullying, and generally unreasonable in its demands, which could potentially endanger the very livelihood of its target’s business.

Having represented parties that are the subject of a PRO investigation and claim, I often wonder how the business owner has let the matter get to the point of litigation.  Yes, these PROs are tough, but in my experience, they don’t rush to sue.  Their goal is to get you under a license going forward.  

To be fair, there are good reasons for some business owners to be frustrated with the system.   Many copyright owners also have issues with the PROs.  But without the PROs, things could actually be worse.

The application of copyright laws to music is complex.  Separate rights in a single piece can be held by composers, lyricists, arrangers, performers, publishers and/or labels.  Each owner has the right, among other things, to determine who may perform the work.  Anyone desiring to play a particular composition in a piano bar or a recording as background music in their hotel lobby would - without PROs – be required to locate and negotiate a direct license with each copyright owner.  On the flip side, each copyright owner would have to independently watch and enforce its ownership interests.

The PROs operate as collectives to protect and administer performance rights for the artists and other copyright owners, while at the same time offering a convenient method to make performance rights available to the public.  Without them, you would either have complete disregard for the artist/performance rights, or very limited public access to much of the today’s available music.

The bad rap given the PROs relates to their reach (virtually any live music performance or non-private playing of recorded music, including such things as the use of a boom box for an aerobics class, musical background for trade shows and conventions, festival performances and contests, etc.), the mysterious calculation of license fees (which, depending on the license, may be tied a building’s square footage, percentage of revenue from entertainment, number of seats or hotel rooms, or the number of employees/students/parishioners), and the fact that a license can be demanded even though you have only unknown performers  (not members of any of the PROs) who perform only their own music.  The PRO’s argument is that a performer might sing someone else’s song, and then where would you be?  

But despite these things, they also give some uniformity and certainty to what could otherwise be a chaotic system.  My advice for those not under licenses:  Be pro-active. Check out the web sites of the various PROs – you might be surprised to find an applicable exemption or that your potential license fees are surprisingly affordable.

If you are contacted by a PRO, do not ignore them.  They will not go away.  If you are attentive and courteous, you may get by with nothing more than an admonishment and a reasonable license for future activity.  If you ignore them or make no effort to compromise, you will get sued, and in addition to demanding a license for future activity, the PRO is likely to claim damages for past unlicensed activity – up to the statutory damage amount of $150,000 per song.  And for the record – they always win.

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