How can I prove I legally can play back copied music at a business?

April 19, 2006 6:40 PM

Where can I find clear and direct laws regarding the playback of backed-up music at a place of business in the United States?

I have searched findlaw.com and google for information regarding my rights to play music I brought from home at my computer shop, but all I can find is FCC mandated radio or businesses that serve food. I want to play my backed-up music in my place of business, but I need to have something concrete I can have to protect myself, just in case. Any help or direction would be greatly appreciated.

Situation: MP3s from CDs at home, taken to a computer at a place of business and played back in front of customers.

posted by Dean Keaton to law & government (25 comments total)

The legal solution is to buy a license from ASCAP. They have a FAQ on it. If it's a public performance (and playing an MP3 is a "performance"), you need to pay:

A performance is considered "public" when the work is performed in a "place open to the public or at a place where a substantial number of persons outside of a normal circle of a family and its social acquaintances are gathered."

posted by smackfu at 6:59 PM on April 19, 2006

The laws are not clear and direct. You're doing a public performance of music, and unfortunately the fact that you purchased the CDs is not really material. You need to contact ASCAP and/or BMI, and pay them a license fee, in order to "perform" music for your customers. Even if you bought the CD. This is stupid, lame, terrible, and the law.

ASCAP and BMI send out enforcers to listen to music in various venues and then check and see if those venues have paid for licenses (really).
posted by jellicle at 7:01 PM on April 19, 2006

This question beings to mind the article in last week's New Yorker magazine: 'The Soundtrack of Your Life' on the evolution of the company Muzak from purveyor of "elevator music to "retail theater."

BTW -- from the article:

"Nor can a business legally use a consumer broadcast of any kind as background music, unless it pays a licensing fee. (The same rules apply to digital music. The ninety-nine cents you pay to download a song from iTunes doesn’t give you the right to play that song to customers over the sound system in a restaurant.)"

posted by ericb at 7:36 PM on April 19, 2006

My health club pays a licensing fee so that instructors can legally play music to accompany fitness classes. Sucks, but that's how it is.
posted by konolia at 8:03 PM on April 19, 2006

You need to get licenses from both ASCAP and BMI.

Here's the BMI licensing you'd need. It has all the info you could ever want.

And here's the licensing from ASCAP.

I'd highly reccomend getting them from both, as they are known to pop into random businesses/restaraunts and if they notice a song of theirs playing in a place who doesn't have licensing, they'll sue you. Plain and simple. I've worked for a few bars who have had this happen to them.
posted by nitsuj at 8:38 PM on April 19, 2006

There's another part to this question hidden in the words "backed-up" - even with legitimate licenses to allow public performance, using backed-up copies of CDs - even if you legitimately own a retail version of those discs - doesn't full under "fair use" in terms of copyright and is illegal. Record companies do not recognise a requirement to "media-hop" their products and will consider a laptop full of MP3s to be piracy whether you own the original discs or not.
posted by benzo8 at 1:54 AM on April 20, 2006

I don't mean to jump into this question and derail, but what about radio? I assume that radio stations pay for an ASCAP license, so if you are just playing the radio in your store, do you still need an ASCAP license? Or do radio stations pay different fees for different licenses?
posted by antifuse at 3:29 AM on April 20, 2006

From the BMI site:

Q: What are the Guidelines for Licensing Only Radio and/or TV?

A: The Fairness in Music Licensing Act of 1999 created new copyright exemptions for businesses that perform music over radio, television, cable and satellite. Under this law, businesses that meet the following conditions are exempt from the requirement that such performance be licensed from the copyright owners of the performed works:

a) All restaurants, bars and grills that contain fewer than 3,750 gross square feet (excluding space used for customer parking and for no other purpose) are exempt;

b) Those restaurants, bars and grills that contain 3,750 or more gross square feet (excluding space used for customer parking and for no other purpose) are exempt if (i) their audio use is via 6 or fewer speakers with no more than 4 in any one room or adjoining outdoor space , or (ii) their audio/visual use is via not more than 4 TVs, of which no more than 1 TV is in any room and no TV has a diagonal screen size greater than 55 inches, and the above speaker/room requirements are met.

c) All non-food service and beverage establishments that contain fewer than 2,000 gross square feet (excluding space used for customer parking and for no other purpose) are exempt, as are those non-food service and beverage establishments that contain 2,000 or more gross square feet (excluding space used for customer parking and for no other purpose) if they meet the above speaker and television screen requirements.

In order to qualify for this exemption, in addition to the above conditions, no direct charge may be made to see or hear the transmission, the transmission may not be further transmitted beyond the establishment and the incoming transmission must itself be licensed by the copyright owner.

In addition to these exemptions, Congress created a system for owners and operators of fewer than 7 non-publicly traded businesses to contest the reasonableness of the license fee offered to them by the United States performing rights organizations. Such proprietors can file this proceeding in the established performing rights organization rate court in New York or in a federal district court in one of 11 other specific locations around the country.

While the proceeding is pending, the owner has the right to perform music by paying an interim fee into the court. The decision of the local judge is to be reviewed by the presiding rate court judge and applies only to that owner. An owner is limited to one proceeding per license agreement.
posted by NotMyselfRightNow at 4:34 AM on April 20, 2006

Besides BMI and ASCAP, you may also need a SESAC license. It depends on the publisher/rights holder of the musical works you are publicly performing. The above guidelines for licensing radio and/or TV are currently correct and are excerpted from the U.S. Copyright Act.
posted by anathema at 5:24 AM on April 20, 2006

The above does not address the legality of the copies (sound recordings and musical works) that you are bringing from home.
posted by anathema at 5:26 AM on April 20, 2006

You are not performing at any place open to the public (it's a private business) and there won't be a significant number of non-friends and non-family there. In fact, I'm willing to bet that you "befriend" most of the people that come in. I can't imaging that your business is rocking (no offense), so I don't think you'd have enough people in your place of business to constitute a performance.

I think you're fine, submitter.

I also think it's sad that we have to ask ourselves questions like the submitter. What the hell happened to this country?

I'm willing to bet that those stores in the mall that play CDs from their employees' collections aren't worrying about paying a license for a public performance.

Unless I'm missing something: Why would the submitter think to worry about this? Were you contacted by the RIAA for something else? Why would anyone think that the music you're playing is from your personal collection, and not from, say, satellite radio? Or a JACK-like radio station?
posted by Merdryn at 6:28 AM on April 20, 2006

The "business is rocking" comment probably came out the wrong way, I'm sorry. :) I mean that you probably don't have hundreds of people in your place of business. Just playing the odds, that's all. You might own an entire mall for all I know, in which case, your business is rocking. :)
posted by Merdryn at 6:29 AM on April 20, 2006

Merdryn, do you actually know anything about the subject, or are you just shooting off your mouth and giving terrible advice that could get the poster sued? Did you read the preceding comments? Do you understand the words "place open to the public"? Regardless of your insulting comments about the poster's business, it is open to the public, and they really do send inspectors to check these things. Take your "What the hell happened to this country?" rant somewhere else. (And I'm guessing you don't earn your living from rights to creative work.)
posted by languagehat at 7:09 AM on April 20, 2006

I'm willing to bet that those stores in the mall that play CDs from their employees' collections aren't worrying about paying a license for a public performance.

Any chain store in the mall has a license. It's a blanket license, at the corporate level, so they don't have to worry about the details of which CD's get played.
posted by smackfu at 7:55 AM on April 20, 2006

I never said I was a lawyer, languagehat, so please don't use your comment space to flame me for speaking to the question the submitter had. I do have a lawyer on retainer, though, who has made it clear to me during numerous previous conversations that the definition of a "public space" is pretty vague, and many judges would rule that a private business is not "open to the public", as that would take away the business owner's rights to remove (or ask the police to remove) those who aren't wanted on the property. For example, while many states grant women the right to breastfeed in public, a grocery store owner need to extend that same right to you -- it's private property. Yeah, it's unfair and all (speaking from experience), but it's the nature of, really, any law, ruling or contract that uses the word "public" to define an area or a group.

And, besides, I took back the comment that might've been seen as insulting because, well, I noticed that it might've been interpreted that way, and it wasn't my intention.

Finally, my post wasn't a rant about the state of the world, that one comment on the subject was an aside. How is one or two sentences (a small percentage of the original post) a "rant"?

Sheesh, talk about comment police.
posted by Merdryn at 10:30 AM on April 20, 2006

Poster never said it was a private business.

IMO, better safe than sorry. ASCAP and BMI have personell that visit businesses just to see if they are playing unlicensed music. They'll monitor that location for a specific amount of time and take notes on every song played that is licensed with their company. If the business does not have a licensing agreement, they will sue you. I've seen it happen.
posted by nitsuj at 10:36 AM on April 20, 2006

Poster never said it was a private business.

Exactly; you made that up yourself. It's a computer store, a place anyone can walk into and buy computer stuff, just like any other store, and just like those other stores, it's a public place and you have to pay a license fee, like everybody before you said. If you're going to barge in, act as if nobody else had answered, misread the question, and give mistaken and dangerous advice, you'd better resign yourself to being flamed.
posted by languagehat at 11:24 AM on April 20, 2006

languagehat, I think you think my last post was posted by Merdryn.
posted by nitsuj at 1:18 PM on April 20, 2006

...and if not, if you browse up you'll see I posted a (quite helpful, if I do say so myself) comment early on in the discussion, before this mess happened.
posted by nitsuj at 1:23 PM on April 20, 2006

No, no, I just expressed myself sloppily. I was quoting you as a perfect summary of what I wanted to say to Merdryn, to whom I was addressing the "you." Sorry 'bout that; you (nitsuj) have been nothing but helpful, and I (languagehat) have been floundering like a flounder.
posted by languagehat at 5:10 PM on April 20, 2006

I stand by what my attorney has told me in the past; a "public place" is a vague and undefinable thing. Poster may or may not be considered "performing" his personal collection of music for the purposes of licensing by the content owner. Or, he can pay a few hundred bucks a year to "license" his music. Whatever.

That's what I get for being "real world", I guess.
posted by Merdryn at 5:11 PM on April 20, 2006

I also think it's sad that we have to ask ourselves questions like the submitter. What the hell happened to this country?

What the hell happened to this country when people think it's not important to check that they're correctly reimbursing artists for their work?

This should not be an issue of "can I get away with it?"but "am I doing everything I can to make sure I'm not screwing anyone?"

(Disclosure - professional composer and songwriter)
posted by benzo8 at 6:43 PM on April 20, 2006

Sorry to have stirred a hornet's nest here. I'm one of those who feels that intent is an important consideration, and I don't think that anyone playing a CD from their collection in their business is intending to screw anyone. While the RIAA thinks it's a black and white issue, reality isn't black and white.

What if I'm driving down some neighborhood street (not my own), and I like a particular song, and turn it up loud? Am I violating my license to the work by playing it loud enough for the public to hear? Noise ordinance aside, of course. If the poster was listening to his CD collection for his own personal enjoyment, and customers happened to hear it, is that a license violation? What if I take a business call while I'm at home, and my MP3 collection can be heard in the background? Did I just break the law by allowing a witness? Do I need to send $1.28 to Bowling for Soup because I played "Almost" loud enough for a stranger to hear it?

It's not an issue of "can I get away with it", it's an issue of "am I ACTUALLY screwing someone out of their due, AND did I intend to do so." It may take a bit of time for the law, in this type of matter, to catch up to reality, but it will. It nearly always does.

Good luck, poster, with your problem. I'm out.

(Disclosure - Someone who actually pays for CDs and DVDs, before you start to think otherwise.)
posted by Merdryn at 11:05 AM on April 21, 2006

This is stupid, lame, terrible.

Why is that? (Public) business owners pay someone to make a logo that is attractive to customers; they pay interior designers to make flooring, spaces and colour schemes that are attractive to customers; they pay advertising agency to dream up witty campaigns that are attractive to customers. Why shouldn't they pay the person who created the soundtrack that plays throughout the business day and attracts customers?

[Disclaimer: I'm a composer, and I'm glad the performing rights companies are behind me on this one. In many clothes shops the music is as much a part of the atmosphere as the lighting and the clothes themselves. Damn right I want paying!]
posted by TiredStarling at 2:47 AM on April 24, 2006

And it is black and white. If you're running a business and part of running that business involves playing music to attract customers or to provide a congenial atmosphere for your customers, then you need to pay. You are using music to promote your business and earn money.

Merdryn's comments about playing a song loud enough for others to hear don't apply as in that situation the reason you're playing the song is not related to your earning any money.
posted by TiredStarling at 3:02 AM on April 24, 2006