Shop Owners: Have You Received ASCAP Threats?

In My Humble Opinion
1

I am curious to know if shop owners have received notices (whether by email, letter, text, what have you) by ASCAP warning them about playing copyright music in their stores. A good friend who teaches karate and runs his own Dojo has received such a letter. I wonder if this is legit, or if someone is simply scamming businesses. I should add that he does post videos on FB of the kids performing with music in the background. It seems there may be a program “listening” to such posts for music (akin to Siri identifying songs). I mentioned this because he received another notice allegedly from Sony Entertainment claiming he has played 0 mins of their songs. Very weird.

Your thoughts and experiences?

2

Not shop owners, but back in my band days I knew a few bar owners who got notices. And it is legit. I don’t know how it’s enforced now, but in the 80s it was people who visited bars with live music and looked to see if they had their license displayed. Most bars we played at had both ASCAP and BMI licenses, and they were usually prominently displayed behind the bar.

3

A bar I have visited used to host an open stage on Wednesday nights. They stopped doing this due to a “fine” levied by ASCAP. At first they welcomed people to play only their original compositions, but that didn’t work out for them.

4

Is this why so many stores played “muzak” in the background? Did stores get an affordable license to play muzak songs? What about playing the radio over the PA in a store?

5

Muzak usually requires a dedicated closed system, i.e. it will only play proprietary media to which the royalty costs for the music are included.

As far as playing radio or live music in any location, I suspect it depends on the purpose of what’s being played. If it’s to draw in customers, ASCAP will be interested in getting the artists share via royalties. This was likely the case with the open stage bar that was fined.

Here’s some answers from the ASCAP site about licenses:

TL;DR version: In general, businesses need to pay for an ASCAP license or they’re subject to being fined.

"What does ASCAP mean by “general licensee?”
“General licensee” is an umbrella term referring to the hundreds of thousands of bars, restaurants, hotels, ice and roller skating rinks, theme parks and other businesses we license that are not TV, radio or new media broadcasters. There are many different ASCAP licenses available for the many types of general licensees. You can read more specifics at ASCAP Music Licensing & Music Licenses

Why should a business have to pay to play music in public?
We often use the expression “They’re playing our song,” not always remembering that while we may have emotionally adopted the song, it still legally belongs to the songwriter who created it, and the music publisher who markets it. When you use other people’s property, you need to ask permission. An ASCAP license gives a music user simple, affordable access to the more than 11.5 works in the ASCAP repertory.

Do business owners need to pay a fee if they’re only playing recorded music like CDs, radio or TV?
In general, yes. Whether it’s live or recorded, music is used by business owners to attract customers, and its creators have a legal right to be compensated. There are a few exceptions, depending on the size of the establishment and whether it charges an admission fee. For example, a food service or drinking establishment is exempt from licensing for radio or TV music uses if it has no more than 3750 gross square feet of space. Licensees can discuss their specific situation by contacting a local ASCAP licensing manager."

https://www.ascap.com/help/ascap-licensing/why-ascap-licenses-bars-restaurants-music-venues

6

The same requirements hold true for TV broadcasts, especially sports. Sports bars advertising free games have been fined and shut down for not paying for the appropriate licenses. It was discussed on these forums back in 2007: https://boards.straightdope.com/sdmb/archive/index.php/t-410992.html

On another forum I’m on, every once in a while there’s a discussion about TV’s playing in a doctor or dentist office. These are generally overlooked, because they’re not the draw for the patients. What’s not okay is when people want to replace the ads on the TV shows with their own. Now they’re trying to remove the ad revenue from the channel and are likely to be fined if someone complains to the FCC or other governing agency.

7

Youtube (and it seems Facebook) has software that tracks and recognizes copyrighted audio and video. There’s a limit to how much of a song or video (no matter what part) can be played under Fair Use laws. Any more and the audio/video is tagged, removed and sometimes a notice sent to the poster.

The “weird” letter from Sony was probably because he’s now on their watchlist. Yes, BIg Brother entertainment IS watching/listening to you!

BTW, it’s not threats. It’s the law! Ignore the Cease and Desist notices and you may be fined big bucks for EACH instance/song/video you’ve played.

8

I’m pretty sure the ASCAP/BMI license is also needed for playing music on hold. I worked for a very small company once and, among other things, was responsible for the phone system. I bought a cheap CD of classical music selections to play on the phone system. I figured their systems wouldn’t be able to identify the specific orchestras and most of the music itself was old enough to be in the public domain. I left the company years ago and it doesn’t even exist any longer so it’s too late for anyone to do anything about it.

But does anyone know if the systems used to identify copyright violations can identify which performance of a piece is being played?

9

In the United States, except for music broadcast thru subscription satellite services and streamed over the internet, only the composers/writers have music performance rights. Performers (unless they are also the composers of the music) do not. This is different in most of the rest of the world. If the compositions that were being played were public domain and you are in the United States, you have nothing to worry about.

I don’t know what happens if someone calls from a foreign country and listens to the music on hold.

10

Thanks. I wonder though, about something like a Beethoven symphony. The original sheet music is certainly public domain, but I assume that before an orchestra can play it today, someone has to arrange it for the instruments in a modern orchestra. Wouldn’t that arrangement be under copyright?

11

The way I understand it, there’s two components to a performance. The copyright of the music composition (which may have different lyrics and music contributors) and the rendition of that musical composition. Beethoven’s compositions may be in the public domain, but the way the conductor and orchestra performs it is covered by copyright.

Which brings up something that just came to mind, since every live performance differs in some way, is each protected by a separate copyright? Does Jose Feliciano own the copyright to his stylized rendition of Light My Fire, or do all royalties if someone does in his style go only to The Doors?

12

Yes, if it were sufficiently transformative. I don’t know how much transformation is sufficient.

13

I am not your lawyer and this is not legal advice.

  1. This is legit

  2. If you are playing music in a place accessible to the public, and public can hear it, you are publicly performing music, which is one of the exclusive rights of the copyright owner.

  3. It doesn’t matter what your business is, whether it’s for profit or not, whether it’s incidental or not, if you’re publicly performing music, then you’re in the music business and you need a license. There are exceptions for very small establishments that use very simple equipment, but if your place is wired with speakers, it’s very unlikely you’ll qualify for it.

  4. Public performance is public performance whether it’s live or from a recording or from someone else’s broadcast, like having a TV or radio on in your establishment. Having a TV on is a public performance of both the TV shows and the music in them, so you do need licenses for both.

  5. In the United States there four performance rights organizations that sell licenses to businesses and collect royalties for composers/songwriters and their music publishing companies. Over 90 percent of popular music is licensed by two not-for-profit PROs—the American Society of Composers, Authors, and Publishers (ASCAP) and Broadcast Music Inc. (BMI). Most of the rest is licensed by two much smaller for-profit PROs—SESAC (mostly country music religious music, and classical music), and Global Music Rights (GMR). GMR is only a few years old and has made an impact by signing up some of the most popular compositions. ASCAP and BMI have been operating under consent decrees since the 1940s in cooperation with the Department of Justice to ensure they don’t violate antitrust law, but the current head of the Antitrust Division wants to do away with the concept of consent decrees.

  6. For any business, it’s almost impossible to understand what compositions are controlled by which PRO or PROs at any particular time, so you basically have to purchase all four licenses if you play music at your establishment.

  7. With respect to music in YoiTube videos, “Transformative use” is rarely relevant in these situations. In the case of music that incidentally occurs in the background of YouTube videos it’s not that the use is transformative but just that it may be de minimis. If you put the music there on purpose and it can be heard clearly and forms a part of the aesthetic of your video, it’s very unlikely to be a fair use.

  8. Yes, a new arrangement of a composition that is in the public domain is a new work that is separately protected by copyright law, and you must have a license to perform that arrangement.

  9. Owners of copyright interests in sound recordings have more limited rights that owners of composition rights. First, sound recordings were not protected by U.S. copyright law until 1972. Second, many performances of recordings—such as on terrestrial radio and television—don’t trigger sound recording performance rights. New media—such as satellite and internet streaming does trigger a license requirement. There are proposals to expand sound recording performance rights to match compositions performance rights. A statute enacted a couple of months ago made pre-1972 recordings subject to royalty requirements on Spotify and other streaming services.

  10. If you are performing a song live with your own voice and instruments you are performing a composition and perhaps an arrangement, but not a sound recording.

14
  1. If you subscribe to a music service for businesses, such as Muzak or Pandora for Businessed, they will likely cover the licensing for you, but it’s your obligation to be sure of that.
15
  1. ASCAP and the other PROs are dead serious when they send these letters. Every month they file lawsuits against businesses—particularly bars and restaurants—that play music without licenses. The Copyright Act gives them several powerful weapons—(1) statutory damages, which means they don’t have to prove how much harm any particular act of infringement caused them, (3) attorneys’ fees, which means they sue you, and you lose, and you have to pay for their lawyers, (3) the possibility of TRIPLE damages if they prove you infringed willfully. So the vast majority of defendants end up settling for a price higher than what it would have cost them just to pay the original licensing fees.
16

Yeah, I got one of those once. We had an organization which held meetings at science fiction conventions. I pointed out that we didn’t play music: it was just a meeting of the board and its members. Also, it was held at a hotel, so any music would be covered by the hotel’s license.

They didn’t ask again.

17

Yes, those are both good points—(1) If you don’t actually play music for the public, then you don’t have to worry about it. For example, if you’re just putting on the stereo at home when you have some friends over. Or, indeed, if your event includes no music. (2) If your event or other activity is at someone’s establishment, it is generally the establishment’s responsibility to acquire the appropriate licenses. That also means that if they don’t have the licenses, they have to stop you from playing any music at your event.

18

And, of course, it is possible to have an event that doesn’t implicate copyright law. For example, if you hire a band to play their own arrangements of their own compositions, or compositions that are in the public domain. I have been to at least one such event.

19

It even includes song lyrics. Our church has to have a license to put the words to hymns on screens to sing. When we go caroling, we can only print words to carols whose copyright has expired on our caroling handouts or pay a license fee.

20

Printing copies of lyrics implicates a different right under copyright law. It’s not a public performance of a musical composition. It’s a duplication and/or distribution of a copy of a work.