ASK THE LAWYER
MARK TSCHETTER | TSCHETTER HAMRICK SULZER, P.C.
Does your community need a license to play
music or TVs? The short answer is probably yes.
However, evaluation of licensing requirements
can be complicated. Copyright licensing issues
are further complicated by the fact that licensing
rules are different for music and TV. Licensing
requirements depend on the facts and circumstance of each case, what is being played, where
it is being played, and how it is being played.
A community can be involved with copyrighted material requiring a license in variety of
ways. Music from a host of sources may be being
played at the community. Locations where music
is played may include the leasing office, models,
lounges, pools, fitness centers, business centers,
game rooms, theatre rooms, and clubhouses. The
community may be playing TVs in the fitness
center and elsewhere. The community may be
using social media and posting music videos or
music to the Internet.
If you are playing music anywhere in public
at your community, or have any TVs in public at
your com- munity, you may be required to pay
copyright licensing fees to avoid infringing the
artists’ copyright. Copyright infringement is the
unauthorized use of another’s creative work. If
you play music without a license, when one is
required, it is copyright infringement. Lack of
knowledge of license requirements or intent is
irrelevant. You can’t defend copyright infringement
based on ignorance or lack of intent.
You should not ignore this issue and hope that
it goes away because the penalties for copyright
infringement are severe. Statutory damages range
from $700 up to $30,000 per song performed
without a license. Willful infringement, could
subject you to damages of up to $150,000 for each
song performed without a license.
If music or television broadcasts are copyright
protected, licenses are almost always required if
publicly performed. Public performance is not
limited to a live performance by the artist. If a
song is played in public, then it is publicly performed. Under copyright law, publicly performed
is much narrower than you would think. A public
performance occurs where people gather. It doesn’t
have to be a large gathering. If a gathering is more
than a small circle of family or social acquaintances, then it is a public gathering. Similarly, any
space that is open to more than a small circle of
family or social acquaintances is a public space.
For example, even though your fitness center
is not open to the general public, your fitness room
is a public space under copyright law, and any
music played there would be considered to be
publicly per- formed. Public performances also
include any transmis- sions to the public, for
example, radio or TV broadcasts, as well as content
delivered over the Internet. Copyright owners
have the exclusive right to publicly perform copyrighted music, and the legal right to compensation
when anyone else publicly performs copyrighted
material.
www.aamdhq.org
PROs grant and administer licenses on behalf
of copyright owners. Artists and copyright holders join PROs so that the PRO can enforce their
copyrights. The three major PROs, that enforce
copyrights in the United States, are ASCAP (the
American Society of Composers), BMI (Broadcast Music, Inc.), and SESAC (Society of European State Authors & Composers)
Under the law, PROs must offer licenses to
anyone, and the PROs must charge all license
seekers the same rates for the same or similar uses.
Information regarding PRO licensing rates is
available from individual PROs. One way PROs
are executing their mission to enforce copyrights
is by contacting businesses and demanding that
they pay required licensing fees. PROs have been
targeting the multifamily industry. Depending
on what you’re playing, you may need multiple
licenses, e.g. a music license with all three PROs.
A music licensewith one PRO allows you to
perform only copyrighted music represented by
that PRO. Each songwriter or composer may
belong to only one performing right organization
at any given time, so each PRO licenses a unique
repertoire of music. Thus, a BMI license doesn’t
cover songs in SESAC’s catalog.
What about if you only play music from satellite, TV, cable, or radio stations at our community? Aren’t they already paying the PROs
licensing fees, so you don’t need another license?
Various content providers may already be licensed
with PROs. However, broadcast licenses don’t
authorize the performance of such TV, cable, and
radio to the public by businesses and other organizations. Generally, businesses must secure public performance rights for TVs or radios under
certain circumstances. With respect to TVs, licenses must be secured if the business is playing
more than four TVs; has more than one TV in
any one room; if any of the TVs has a diagonal
screen size greater than 55 inches; if any audio
portion of the audiovisual performance is communicated by means of more than six loudspeakers, or four loudspeakers in any one room, or there
are any speakers in an adjoining outdoor space.
With respect to radio, licenses must be secured
if the business is playing more than six loudspeakers; more than four loudspeakers in any one room
or adjoining outdoor space; or playing music on
hold.
To evaluate licensing requirements, you must
answer where, what, and how music or other
copyrighted material is being played at your community. If music is not being publicly performed
(played in public) at your community, then you
don’t need a license. Keep in mind that the concept
of public performance is broad. If the content of
your music is not subject to copyright protection,
then you don’t need a license. While there is a
fairly extensive catalog of music that is not copyright protected, the reality is that any music your
residents would want to hear is likely to be subject
to copyright protection.
In other words, your residents probably don’t
want to hear 1928 elevator music. However, your
music list or TV content may be limited to a
particular PRO’s catalog. Thus, if you’re only playing BMI music, you don’t need to pay SESAC
licensing fees as well. As discuss