The Federal Copyright Act grants copyright owners exclusive rights in their works. This includes the right to public performance. Public performance of a work does not only mean live performances, but includes playing music via CDs, playlists as well as over the radio and in addition to showing television to the public. Business owners, including food establishments, are subject to this rule, requiring the owner to pay a licensing fee in order to play music or TV for their customers.
Many business owners obtain a blanket license to play music in their establishments through performance rights organizations, or PROs. The three major PROs consist of ASCAP, BMI and SESAC. A blanket license will allow you to play any of the songs covered under the license the particular PRO grants to the business. For example, this may require that a business owner will need to obtain multiple license through different PRO’s to cover a broader base of songs and music, if the business owner seeks to play music outside of the license of a single PRO. That being said, one benefit of utilizing a PRO is the large library of music that a business owner may utilize to customize one or multiple playlists, or for broader protection if live music is part of their business. However, a blanket license is not inexpensive and there may be many songs that are unnecessarily included in the license that would never be played in the business establishment.
Alternatively, some business owners utilize services such as Mood Media (formerly Muzak). Services like Mood will create custom playlists for your business and the subscription service covers the licensing fees. Under this approach, business owners may find this to be a cost effective way to ensure they are not infringing on an artist’s copyright. However, there are drawbacks under this licensing scenario, namely that license may not cover the right to live performances or TV broadcasting, in addition to being limited to a specific set list which may become repetitive over time.
There are some exceptions to the rule, where restaurant owners would not need a license to be allowed to play the radio or TV. First of all, the rules apply when the work is intended to be received by the general public, therefore radio or TV played only for employees may be entitled to license-free use in most cases. A restaurant may also be exempt if they do not charge to hear the music; live music, CDs and other methods of playing music do not fall under this exemption. The exemption also applies to restaurants who wish to play radio or TV for the public that are less than 3,750 square feet with no more than four TVs in the entire establishment, and to larger businesses as long as there are no more than four TVs, no more than one TV in any one room, no TV bigger than 55”, the audio is played through no more than six total speakers or four in any one room and as long as there is no cover charge. Non-food establishments meet a similar exemption, however, the square footage determination is more or less than 2,000 feet.
Playing music or showing TV in any business may be costly, however, attempting to get away without a license could end up costly exponentially more. If you want to increase your business through the appeal of music and television, it is worth it to make sure you are legally covered. A copyright attorney, PRO representative or licensing service are great resources to make sure you are not infringing on the copyrights of another and protect you from costly litigation and fines down the road.