|Music in the Marketplace!|
Who pays the piper?|
Whether a radio is played as background music or on the telephone's Music On Hold, operators and owners of businesses large and small often are skeptical when representatives for performing rights licensing organizations tell them that if they want to play they have to pay!
When faced with demands that they buy one or more licenses to perform music in connection with their business or face the threat of a lawsuit, many people in business come to realize that they haven't considered the fact that most of the music they play is protected by copyright laws. Moreover, the music copyright holders have the constitutionally created and federally protected right to demand royalties for public performances of their music, whether by live musicians, recordings or broadcast. Their legal rights under the Copyright Law are substantially the same as those given authors or creators of literary works, dramas, choreographic works, films, pictures, graphics and sculptures.
In order to effectively and efficiently enforce their rights under the copyright laws, American Composers, lyricists and publishers usually join one of three "Performing Rights Societies," organizations that grant licensees the right to publicly perform the works of all their members or affiliates, for whom the societies collect and distribute fees for the licenses granted. More than 80% of the fees collected by ASCAP and BMI are paid to composers and publishers as royalties for the copyrighted works.
Why do I have to pay royalties?
The short answer to this questions is: "Because the law says you do." The U. S. Constitution gave Congress the power to grant patents and copyright laws. The Copyright Law of the U. S. today gives copyright owners the exclusive right to publicly perform or authorize performance of their works. Generally speaking, public performances are very broadly construed under the law and are defined as performance "at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered."
Given the broad scope of the protection given copyright holders and those assigned their rights, anyone whose business in one way or another performs music for its customers or members should be aware that they may be called upon by one or both of the major performing rights organizations, say BMI, does not protect a business from liability for unauthorized performance of songs in ASCAP'S or SESAC'S repertories.
Who is responsible for the license?
The proprietor of the business in which the copyrighted music is performed is liable for any infringement of copyrighted music in his or her place of business.
Federal courts have rejected a wide range of defenses in copyrighted infringement cases brought against music users. Including that the owner of a business did not know that playing a radio over his business speakers or on his telephone's ON HOLD actually was copyrighted.
What happens if I don't get a license?
The copyright infringer is subject to a civil suit in federal court. Sanctions against an infringer can include an injunction and the copyright owner's actual damages, as well as the infringer's profits, or "statutory damages" of up to $20,000 for each copyrighted song performed without a license (up to $100,000 if the infringement is willful). The infringer can also be required to pay copyright owners' legal fees. The Law further provides for criminal sanctions against those who willfully infringe on a copyright for commercial advantage or private gain. Criminal violations are punishable by up to a $25,000 fine and/or up to a year in prison.
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