Law Column: Pay to Play

Originally published July 1, 2006

If you use music without the proper licenses in place, you put your event and yourself at substantial risk as to litigation and potentially steep penalties.

Copyright protection consists of a bundle of rights, including the right to reproduce, distribute, and display the work, the right to prepare works derived from the original, and the right to publicly perform the work. Each of these rights can be licensed separately. Performing rights societies (American Society of Composers, Authors, and Publishers or ASCAP, Broadcast Music Inc. or BMI, and SESAC Inc.) license public performance rights on a nonexclusive basis for performers. They license the music for public performance, collect fees, and pursue those who don't have a license or pay the appropriate fees. These societies have each implemented a "blanket" license, which means that, in exchange for the appropriate fee, the licensee is entitled to perform any music within the catalog of music licensed to such performing rights societies.

In response to performing rights societies' demands against meeting planners during the late eighties, key players within the meetings industry (such as Meeting Professionals International and the American Society of Association Executives) negotiated blanket licenses for those facilitating meetings and events. The results are licenses that are custom-tailored to meetings and events. In many cases, in exchange for a flat fee per attendee, a group has the right to perform music publicly, both live and via recordings. Except for restrictions as to performances in connection with dramatic works and transmitting music beyond the site of the event, the group is otherwise free to use any music from the performing rights societies' repertoire in whatever manner it sees fit and as often as it likes.

Once the scope of the group's use of music is determined and appropriate licenses are obtained, accurate and comprehensive records should be maintained as to the nature of the group's use of music, so that license fees can easily be verified. With the music industry becoming increasingly litigation-minded, and with statutory penalties ranging from $750 to $150,000 per composition infringed, it makes sense to ensure that all of your bases are covered when it comes to music licensing. Anything less puts both you and your event unnecessarily at risk.

Groups intending to use music at their events should consider what role, if any, music is to play at the event and obtain the required licenses well in advance of the occasion. If music is to be performed publicly at the event, either by playing a recording or by hosting a live performance, a license from one or more of the performing rights societies will likely be required unless the music is old enough to have fallen into the public domain or has been either composed for the event or licensed from a music library. Public performance licenses, however, do not include the rights to synchronize music with images as part of an audiovisual presentation. Such synchronization requires an additional license that must be secured directly from the publisher. In addition, none of these licenses cover either the incorporation of music into a dramatic work or the broadcasting of music beyond the facility in which the event is held. These activities will also require a separate license from the publisher.

For more information on performance licensing, see www.bmi.com and www.ascap.com


Barbara F. Dunn, Esq. is an attorney and partner with Howe & Hutton in the firm's St. Louis, MO, office. She can be contacted at (636) 256-3351 or [email protected] She co-wrote this article with Nathan J. Breen.