Can you Play Copyrighted Music in Restaurants?
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When we visit a restaurant or cafe, listening to music adds to the overall ambiance and experience. However, have you ever wondered whether the owners of restaurants require permission to play those songs at their premises? The answer is yes. This is because most songs are subject to Copyright Protection. Playing a song at a restaurant or cafe, which are by nature public spaces, requires the permission of the copyright holder. Do you know why? It is because Copyright Law gives copyright holders some specific exclusive rights. The owner of a song’s copyright controls the right to make public performances of that song. Playing a record of that song in one’s restaurant is considered to be a ‘public performance.’ So, playing a copyrighted song without proper permission could amount to Copyright Infringement.
Public Performance Licenses
A ‘public performance’ is the one that occurs either in a public place where people gather for transmission to the public, for example, radio or TV broadcasts and via the internet.
A ‘public performance license’ is an agreement between a music user and the owner of a copyrighted composition (song) that grants permission to play the song in public, online, or on the radio. This permission is also called public performance right, performance right, or performing right. Whenever someone performs in public a song that he or she did not write or plays recorded music in public, such as at a club, restaurant, concert, on the radio, or streaming online, public performance licenses are required.
A public performance license is required no matter how small a portion of the song one uses. There are some exceptions where a public performance license is not required; for instance, one does not need a public performance license for songs that he or she wrote or songs that are in the public domain.
Performance Rights Organizations
Performance Rights Organizations (PROs) usually control public performance licenses. Their role is to represent songwriters and publishers and negotiate ‘blanket’ licenses to television and radio stations, retail stores, restaurants and bars, music venues – anywhere that would be playing background music to which public audience can listen. They are also in charge of monitoring this space and ensuring all of these organizations comply with the correct laws. They then pay performance royalties to the songwriters and publishers based on the frequency of usage of each copyrighted work.
PROs ensure that performers and record companies are being fairly paid for the use of their music. After the deduction of running costs, all PROs license fee income is distributed to the particular PRO’s diverse membership, which includes all the major record labels, several independent labels, and thousands of performers and musicians. Similarly, after the deduction of running costs, the PRO ensures that songwriters, composers, and music publishers are paid fairly and proficiently. There are many methods to track the music being played in different environments, such as censuses on business, tracking radio play, downloads, and streams.
Licensing Fee
A common misconception among restaurants, cafes, and bar owners is that if they are paying for a subscription to a streaming service such as Spotify or Pandora, they tend to believe they are paying the appropriate fees. It is, however, a false piece of information. The restaurant owners must pay a fee to a PRO or to a music service that has paid the appropriate fees on their behalf to be able to play the music legally. They cannot play copyrighted music (basically any song by an artist that is signed by a label) in their restaurant or bar unless they do so.
Licensing fees are generally paid yearly and can vary depending on several factors, including:
- Single unit versus multi-unit operation
- Square footage of the establishment
- Customer capacity of the establishment
- Number of nights the music is played
- Whether the music played is recorded or live
- Whether a cover charge is collected
There are various options for paying licensing fees, which are as follows:
- Paying PROs Directly: Under this approach, the restaurant owner pays the PROs such as ASCAP, PPL, BMI, etc., directly. The only challenge with this approach is that you are only legally able to play music from artists that the organization you are paying represents. While each organization has a searchable database of covered musical works on its site, it is not always updated, leaving the restaurant owner at risk of infringement. One would have to pay licensing fees to all the PROs, which is an expensive task. Another issue is that the copyright in a given song may be held by many parties (for example, different singers), each represented by a different performing rights organization. It may not be practically possible to keep track of what organization oversees which copyright owner’s rights.
- Getting a License from the Copyright Owner: One can even obtain a license directly from the copyright owner of each song played. However, considering that the song playlist will be large and diverse, this is not a practical option.
- Subscribing to a Business Music Service: Several business music services pay licensing fees of a public performance license on their behalf. Business music services have ‘blanket’ agreements with the performing rights organizations that allow them to build their license fees into their service rate. Because of their large subscriber counts, they pay lower fees on behalf of the business owners than what they would pay directly.
Some Famous Music Licensing Incidents
The song “Happy Birthday to You” is probably the most popular one worldwide. Each year, it generates USD 02 million in royalties for Warner/Chappell music. In 2015, a US court held that Warner/Chappell could not prove that it held a copyright on the song. Warner/Chappell agreed to settle a class-action lawsuit challenging these fees. Warner had to pay more than USD 14 million to several people and entities who had paid licensing fees to play the song since 1949.
In 1995, the American Society of Composers, Authors, and Publishers (ASCAP) asked the American Camping Association to pay royalties for campfire songs sung at any of their 2300 camps. ASCAP demanded girl scouts to be engaging in ‘public performances of the copyrighted works. However, after facing public backlash, ASCAP claimed that it did not intend to bring a lawsuit against girl scouts.
The Bottom Line
While it may seem like a hassle to obtain a license when one can just plug in and play music from his or her device, it is a hassle that is worth the time and money. A small investment in a paid music licensing service can be a good solution for restaurants to stay within the legal limits of copyright. Most PROs have representatives who scour retail establishments, find businesses that are playing recorded or live music, and then demand that these businesses enter into a license or file an infringement suit.
In case the restaurant does not wish to spend on a license, another option is to play copyright-free music, which can be done by playing music that has fallen into the public domain due to copyright expiration. In addition to public domain recordings, there is a large collection of recorded music that is designed specifically to bypass the public performance fees. This music is also often used by filmmakers who can’t afford hefty license fees. Sometimes people who work at a restaurant compose their music. A restaurant can play original music for no cost if it has the permission of the copyright owner, who would be the composer in this situation. Or else, the restaurant can arrange live performances without a fee if the band plays its music and does not charge additional fees for the performance right.
In any case, whenever someone is planning to open a restaurant, cafe, or similar establishment with the desire of enhancing the ambiance of the place by adding music to it, it is necessary to obtain a license for playing copyrighted music to avoid getting into legal hassles. ✅ For more visit: https://www.kashishipr.com/
