The rights of songwriters, musicians, and publishers are enshrined in U.S. copyright laws. Per those laws, anyone who doesn’t own the copyright to a song must have permission before playing it in a public space (like a restaurant). Typically, getting permission means paying a fee.
Imagine you own an Italian restaurant and want to play That’s Amore by Dean Martin for your patrons. To do that, you must get a license and pay a fee. If you don’t, you could get sued by the copyright holder and be forced to pay a fine.
If you're looking for a way out of a licensing agreement so you can play the music you want to play without paying any kind of fee, we understand. The good news is that some exemptions do exist for certain businesses. We’ll explain how to avoid music licensing fees in this article.
What Are PROs?
Many small business owners don't realize that they have to pay to play music in many situations.
Performing rights organizations (PROs), like BMI, ASCAP, and SESAC, handle this payment issue. BMI explains that the work done is a bridge between songwriters and the businesses that want to use the work those songwriters have generated. In the eyes of BMI, the work helps to ensure that content creators get the money they need in order to work on new projects.
Few small business owners would argue about this basic point. Just as you want to be paid for the work you do, musicians want to be paid for the work they do. It's reasonable and it makes sense.
You may be surprised to learn that almost everything you do that involves music within your business will trigger a fee.
When Do PROs Collect Payments?
PROs expect to collect royalties for any public performance of a protected work. A public performance is defined as the performance of a song played outside of a normal circle of friends and family in any public place.
You could be engaging in a public performance if you:
- Play a CD of jazz tunes in your salon.
- Load up a jukebox with oldies records in your bar.
- Tune in to a Pandora radio station in your dental office.
- Play music from a television in your restaurant.
You may not think of these things as performances. After all, the people in these scenarios may not be actively listening to the music you're playing. It may just wash over them as they're doing something else. But in the eyes of the PROs and U.S. copyright law, these all qualify as performances.
Types of Copyrights
It's also vital to understand that there are two types of copyright for each song. Digital Music News reports that one copyright covers the underlying composition of the song while the other protects the sound recording. It's not unusual for the owners of these copyrights to be different people, and for these different people to have direct relationships with different PROs.
For this reason, and because it can be hard to untangle the copyright of every song, business owners are often encouraged to have relationships with all of the major PROs. That way, they can play the commercial music for business they'd like to play. But there are some business owners who want to move in a different direction.
Risks of Violating Copyright Laws
Songwriters, musicians, and publishers have rights that are enshrined in U.S. Copyright law. Per that law, the holders of the copyright are entitled to ask for help from the courts if their rights are violated. The potential fines are clearly outlined within the law.
If someone infringes on copyright law, they can file a court case and ask for damages of not less than $750 and not more than $30,000 per violation, as the court considers just. The copyright holder could also ask a violator to pay the legal court fees associated with the case.
In 2024, a restaurant in South Carolina was sued in accordance with this law. The facility hired a band to play live music, and that group played protected songs. The copyright holder sued the restaurant for damages between $750 and $30,000 (exactly as specified in the law).
Do You Need a Music License? A Chart
If you’re wondering how to avoid music licensing fees, this chart may be helpful. While your circumstances may vary, this information can help you understand the typical situations and circumstances in which a license isn’t necessary.
Keep reading to find out more about how these exemptions work and what you might need to do to qualify.
Music Licensing Exemptions for Businesses
When it comes to exemptions from the licensing requirements of BMI, ASCAP, and SESAC, it's crucial for business owners to understand that these exemptions are not one-size-fits-all.
Eating and Drinking Establishments
Small-scale food and beverage establishments, like cafes and bars, have a specific set of criteria for exemption:
- Size Matters: Your establishment must be 3,750 square feet or smaller.
- Radio limitations: Playing conventional radio is allowed under certain conditions which include:
- No more than six loudspeakers total.
- A limit of four loudspeakers in any one room.
- No mandatory cover charge for entry.
- Avoid playing music over phone calls (e.g., when customers are on hold)
Retail Stores and Other Non-Food Establishments
Retail stores and other similar establishments also benefit from exemptions, but the rules are slightly different:
- Establishments with less than 2,000 gross square feet are generally exempt.
- For spaces 2,000 square feet or larger, the exemption is still available provided they adhere to the same conditions as food and drinking establishments regarding loudspeakers and television sets.
Music in the Public Domain
Owners of other types of businesses have one slight exemption to explore, and it involves music in the public domain. According to Stanford University, it's safest to define public domain music as music that was published prior to 1923. There are some songs published between 1922 and 1964 that may be in the public domain, but that involves research with the U.S. Copyright Office. Some copyright holders have issued renewals for those works.
Copyright laws are strong, but they’re not intended to last forever. When all of the possible copyright protections have expired (which typically means 70 years after the musician has died), the songs can be used without asking permission or paying fees.
It's important to note that songs move into the public domain based on the date they are published. Remakes don't count. So you won't be able to select a song by title. You'll need to watch the publish date carefully. For example, "Mary Had a Little Lamb" might be in the public domain. But if Adele were to record a version of this song, it would not be part of the public domain. If you go this route, you will need to do your homework.
The Public Domain Information Project provides a large (and free) list of music within the public domain. Sound recordings are available on the site, and they’re easy to download.
Alternative Music Options
If you’re hoping for even more ways to avoid music licensing fees, two other important pathways exist.
The first is royalty-free music. Technically, this isn’t a way to avoid music licensing fees. Songs that are royalty-free typically require one payment to download. After that, no ongoing payments are required. You can keep playing the song in accordance with your contract.
The second involves original compositions. If you are an artist, you could write and record your own songs and play them in your business. Since you hold the copyright for the music you create, you can do whatever you want with it, including playing it for your paying customers.
Music for Business Services
The final alternative involves a different type of connection. Companies like ours have negotiated contracts with major PROs, meaning we can offer you a comprehensive library of songs with just one easy-to-understand fee. You won't need to do research on the songs you can or can't use. You can just get started. Contact us today and we'll tell you more.
Other Exemptions
Some exemptions don’t typically apply to traditional for-profit businesses. These include:
- Homestyle exemption: This exemption applies to establishments using music in a way similar to how an ordinary individual might use it at home. This means using consumer-grade equipment and not charging an entry fee to hear the music. The specifics can vary, so it's important to consult legal guidance to see if this exemption applies to your business.
- Educational institutions: Music used in a classroom setting for educational purposes can often be exempt. This includes schools, universities, and educational seminars where music is used as part of the teaching process.
- Government entities: Some government-run facilities, such as public parks or community centers, may be exempt or have different licensing requirements.
- Special events and charities: Occasionally, special events like charity fundraisers or community events might qualify for exemptions or reduced fees. It's important to check with the PROs directly in these cases.
- Religious services: Music played during religious services is typically exempt. However, this exemption does not always apply to music played during social gatherings or other events hosted by the religious organization.
- Fair use: In very limited circumstances, the use of music may fall under 'fair use'. However, this is a complex legal area and typically requires a legal opinion to determine applicability.
Again, it’s important to note that these exemptions don’t typically apply to standard businesses. Make sure to consult with a legal professional if you think any exemption might apply to your business.
References
Our Role. BMI.
A Comprehensive Comparison of Performance Rights Organizations (PROs) in the U.S. (February 2018). Digital Music News.
Music Licensing for Restaurants. (December 2016). New Mexico Restaurant Association.
Welcome to the Public Domain. Stanford University Libraries.
The Music-Copyright Enforcers. (August 2010). The New York Times.
Playing Music in Your Restaurant? What You Need to Know About Licensing to Avoid a Lawsuit. (August 2016). Golden Gate Restaurant Association.
Avoid a Lawsuit. (August 2016). Golden Gate Restaurant Association.
Copyright Law of the United States. (December 2022). U.S. Copyright Office.
Saltwater Cowboys, Owners Sued for Violating Music Copyright. (June 2024). Nexstar Media.