Vondran Legal® Music Law - Public Performance of Copyrighted Music. Call us if you received a demand letter from ASCAP, BMI or SESAC. Call (877) 276-5084.
Introduction
This blog is written by California entertainment and music lawyer Steve Vondran, Esq. This is general legal information only and not legal advice.
Many new business owners in the restaurant, bar, nightclub, and karaoke business fail to understand that if live music is played in their establishment (called a public performance), the establishment must have the proper music licensing to avoid being sued for copyright infringement. The courts have made clear that the burden rests on the business owner, and so it is important to always know what is being played or broadcast in your establishment and to ensure that the song is licensed. If not, you can be "found out" and forced to settle your case or face an expensive and public copyright infringement lawsuit. This blog discusses SESAC, one of the three main performance rights organizations ("PRO").
Common Misconception
One typical misunderstanding we encounter is that bar and restaurant owners believe you are paying the right costs because they personally pay for a membership to a streaming service like Spotify or Pandora. In other words, you may believe that since you pay for Pandora, you are covered for your establishment to play these songs, including cover songs. This is simply not true.
To play your music lawfully in your place of business, you have to pay a PRO or a music service that has the rights to publicly perform the music. Copyrighted music cannot be played in your bar or restaurant unless you have the legal rights, for many, a subscription to Pandora Commercial Cloud, ASCAP, BMI, or SESAC is where many turn to ensure copyright compliance.
Who is SESAC?
This SESAC repertory search (the “Repertory Search”) enables Users to research the musical works represented by SESAC. Search results will contain song titles, SESAC's total represented share, SESAC-represented songwriter(s), and SESAC-represented publisher(s) for musical compositions represented by SESAC, including copyrighted arrangements of works in the public domain. The search results may not include information on non-SESAC represented songwriters and/or publishers. SESAC uses reasonable efforts to keep the information contained in its repertory database current and will grant Users of this Repertory Search a forty-five (45) day grace period beginning upon the date that a musical work is first posted to SESAC's repertory database to obtain from SESAC a license covering the use of that musical work, during which forty-five (45) day period SESAC will make no claims of copyright infringement against the User; provided, however, that the User has acted in good faith and was unaware that the musical work is contained within SESAC's repertory.
According to TVMLC
SESAC is a for-profit performance-rights organization in the United States. Founded in 1930 as the Society of European Stage Authors and Composers, it is the second-oldest performance-rights organization in the United States. SESAC has 30,000 songwriters and more than 1 million compositions in its catalog.
One option to avoid being sued by a PRO is to pay for a subscription to Pandora Cloud Cover.
Does SESAC file copyright infringement lawsuits?
Yes, they do. Here are a few cases I found with a quick search of the Federal Docket.
SESAC in the News
High settlements are possible
From Idobi.com
SESAC has been awarded more than $1.2 million in damages, including the maximum damages on 6 songs, in a copyright infringement litigation. The verdict was returned against WPNT, Inc., the operator of radio stations WLTJ-FM and WRRK-FM in Pittsburgh, and its president, Saul Frischling. In their complaint, SESAC and 15 affiliated music publishers alleged that on numerous occasions WPNT's stations performed the music of SESAC-affiliated songwriters without authorization. SESAC sought statutory damages under U.S. Copyright Law Title 17 U.S.C. 504 and charged willful infringement. The music involved in the case included 31 songs by SESAC affiliates Chico Debarge, Bob Dylan, Mannheim Steamroller, Peter McCann, William Becton, Albert Brumley, and Neil Diamond.
Tips to stay out of legal trouble for new bar, restaurant and nightclub owners
Here are a few general tips to avoid legal issues related to live music performance in your establishment. This is not an exclusive list.
- Obtain the proper blanket licenses from the PROs who hold the rights to the songs that will be sung or performed in your club. Make sure to read and understand the license terms. SESAC has over one and a half million songs in their repertoire, including artists like Neil Diamond, Adele, and Bob Dylan. According to their website:
A SESAC blanket license authorizes you to publicly perform (DJ, karaoke, playing recorded music) any and all of the songs in the vast SESAC repertory as often as you like, without having to worry about obtaining permission for each individual song performed. The blanket license has long been recognized as the most efficient and convenient way of clearing copyrights in the United States. It would be time consuming and expensive for you to locate, contact and negotiate with all copyright holders prior to the performance of each song you plan to play.
Another method is to contact the copyright holders directly, but that can take time and money.
Fees will vary based on the venue size (capacity), music usage, and whether you charge a cover fee, among other factors. Playing "background" music from a personal streaming service such as Apple Music, Spotify, or Pandora does not typically satisfy the commercial licensing requirements.
2. When a band, DJ, or karaoke performer comes to your establishment to play live music, try to make sure you know the songs they are playing. Have them send you a playlist so you can ensure you have the proper rights. The playlist may need to be reported to SESAC, BMI, or ASCAP, as may be applicable. Check the licensing terms of the blanket license. Companies that offer karaoke or cover song bands are usually best served by getting licenses to all three of these PROs, which will cover most songs that may be performed. TouchTunes is a good service if you want a jukebox-type playing of music.
3. Public domain music (essentially music published before 1923) can be used without a license. Original songs written by a singer/songwriter can also be used since they own the copyrights, whether registered with the United States Copyright Office or not.
4. Fairness in Music Licensing Act-If your establishment is under 3,750 square feet, there may be some exemptions for playing non-live music, such as on the radio or a TV or cable/satellite, as long as there is no cover charge and no more than (4) televisions/six speakers. This exemption under the Fairness in Music Licensing Act does not apply to live music performances. Per Wikipedia:
The Fairness in Music Licensing Act increased the number of bars and restaurants that were exempted from needing a public performance license to play music or television during business hours. The bill was companion legislation passed along with the Copyright Term Extension Act in 1998.
United States copyright law gives copyright owners the exclusive right to publicly perform their works. Performance rights organizations (PROs), such as ASCAP, BMI, SESAC and Acemla, administer public performance rights for songwriters and composers, providing blanket licenses to venues allowing them to play music for their customers. Section 110(5) of the Copyright Act of 1976 exempted the need for a public performance license for music played on "a single receiving apparatus of a kind commonly used in private homes" and without a "direct charge" made to listen to the performance.
In the years following, courts have interpreted the provision in widely divergent ways, leading to uncertainty for bar and restaurant owners who played music on their premises. Many restaurant and bar owners also complained about "disruptive" and "coercive" tactics employed by field agents of the PROs investigating unlicensed establishments.
As a result, the National Restaurant Association, the National Licensed Beverage Association, and similar interest groups began lobbying for a more favorable exemption in the early 1990s. Their legislative attempts were strongly opposed by the PROs, who argued that music played in bars and restaurants draws customers in and songwriters deserve to be compensated for the use of their works in this manner. Despite the opposition, the bill was ultimately successful, after having been attached as an amendment to the Copyright Term Extension Act, and was signed into law on October 27, 1998.
Attorney Steve® Tip: Check with a music or entertainment lawyer before relying on this exemption.
5. If you receive a demand letter, make sure to respond to it. It would be wise to consult with an IP lawyer before responding, but the point is to take these matters seriously, as copyright infringement damages and penalties can be staggering. Watch my video on copyright infringement damages.
By creating a culture of awareness, procuring the proper licenses, and adhering to any reporting requirements, you are well on your way to music copyright compliance, an important factor that all bar, restaurant, and nightclub owners should take seriously; you never know who is watching you.
Contact Vondran Legal®
Since 2004, Vondran Legal® has been a leader in copyright law in the United States. We have resolved over 1,000 copyright infringement cases, both in and out of court. If your legal issue involves music or copyright law, give us a call for a confidential discussion. We can be reached at (877) 276-5084 or fill out our contact form on the right side of this page, and we will contact you.
