If you operate a business that uses live music, listen to the songs carefully. That "original music" playing in your club, restaurant, or store may not be as original as you think.
Proprietors who ask musicians to perform original music in their establishments may not realize they're taking a financial and legal risk when they fail to verify copyright ownership and obtain written permission to use the songs.
"We sometimes encounter business owners who think they have no responsibility under U.S. Copyright Law when they ask entertainers to perform what they call 'original music,'" said Tom Annastas, BMI Vice President, General Licensing. "They may not be aware of the risk they're taking. Ironically, many of these same business owners are very careful in other areas of their operations. They would never consider opening their doors without liability insurance to protect them when a customer slips on a wet spot."
Annastas said the term "original music" usually refers to songs that a business owner assumes to have been composed by the same musician who performs them.
The most common mistake, Annastas said, occurs in these establishments when an entertainer performs a song written by someone else at the request of the audience. Other copyright conflicts can arise when a songwriter leaves a band, and written permission is not given to the business for every performance of his or her compositions.
The interests of music publishers must be considered, also. When a song is published, the music publisher becomes a partner in the ownership of the song and usually expects to be paid through performing rights organizations for public performances. In some cases, an entertainer may claim ownership of a composition when he is actually performing an arrangement of a copyright owned by someone else.
The performance of a song without permission of the owner would expose a business to charges of copyright infringement. According to "Music in the Marketplace," a brochure published by the Better Business Bureau, "The proprietor of the business in which the copyrighted music is performed is liable for any infringement of copyrighted music in his or her place of business."
A lack of knowledge about copyright law isn't likely to win you much sympathy if someone takes you before a federal court.
The BBB advises, "Federal courts have rejected a wide range of defenses in copyright infringement cases brought against music users. Courts have held that it is no defense in an infringement suit to claim that performers were hired as independent contractors; or were not paid by the club owner and worked only for tips; or that the owner specifically instructed the musicians not to play copyrighted music; or not to play specific songs; or not to play music in the repertory of a particular performing rights organization; or even that the owner did not know the music actually performed was copyrighted."
Tracking copyright ownership and getting permission to perform every song performed in a business can be an overwhelming task. The United States, like most nations, has performing rights organizations to merge the interests of business owners with the creative community. With a single blanket license, BMI can grant a business owner legal access to approximately 4.5 million musical works from 300,000 songwriters, composers and copyright owners. Operating as a non-profit company, BMI licenses more than half the music performed in the United States, Annastas said. BMI also has reciprocal agreements with performing rights organizations in 60 countries.