Public Performance Rights for Music: Pay it to Play it?

March 8, 2013

It seems like everywhere we go there is music: On our car radios, in our workplace, in restaurants, health clubs and night clubs. Even in our dentist’s office.

And anytime we hear music in a public place – there’s a good chance that the songwriter is owed some money.

For example, the rock and roll you hear blaring in your spin class constitutes a public performance – and the songwriter is due royalties from your club.

The very complicated rules that govern Public Performance Rights was the topic of a special event presented by TJSL entertainment law Professor K.J. Greene on March 6, featuring two experts on music licensing. It was originally planned as a session of Professor Greene’s Music Law Class, but because there was so much interest it expanded to an event to which all TJSL students were invited.

One of the speakers, TJSL alumnus Brandon Sand ’10, is an attorney whose practice includes music licensing and consulting for SESAC, one of the three music licensing organizations in the U.S. The other two are ASCAP and BMI and all of them are known in the music business as PROs – Performing Rights Organizations.

“One of the highlights for me at TJSL was taking music law from Professor Greene,” said Sand. “I was once where you are now.”

The other speaker was Hamish Brown, who is a Music Licensing Consultant with SESAC, and negotiates music performance licenses for businesses.

“It’s important to know what PROs do,” said Sand. “PROs represent songwriters and public performance (of music) is the exclusive right of the copyright holder.”

That’s the easy part.  The hard part is knowing what constitutes public performance and what doesn’t, and what the rules are governing the fees that PROs collect on behalf of the songwriters.

“Taylor Swift is rich not because she is a performer,” said Sand. “She’s rich because she’s a songwriter.”

“There’s a lot of money out there that’s not being collected,” according to Brown. “Businesses playing music are performances.”

Often, a business will be hit up by three different PROs because the music it is playing is licensed by all three of the organizations.

It gets confusing.

“It’s a nightmare because a lot of people in business don’t know about copyright law,” said Sand. “But music makes money for businesses and once it is performed, there is strict liability.”

The experts went over the rules and the exceptions in great detail and gave those who attended handouts and brochures to better explain it.

Interestingly, one example used in the class was this:  If a nightclub is playing music and there are no customers inside at the time – it’s still a public performance under the rules. And the songwriter is owed money.

The experts were asked, theoretically,  if a tree falls in the forest and there’s no one is to there hear it, do the PROs still get to collect a performance fee from the forest?

The answer was a resounding “yes.”