Can I play CDs I own at work?
January 3, 2012
Dear Music Lawyer,
I work at a coffee shop, and some of the employees bring in CDs to play for the customers. Is that okay?
—Jan
Dear Jan,
Despite the near ubiquity of this practice, this is not legally okay. Playing music at a venue that is open to the public such as a coffee shop constitutes what is legally a "public performance" under U.S. copyright law. The right to publicly perform a copyrighted work (and this includes playing a recording in public) is one of the exclusive rights enjoyed by the copyright owner. As a result, someone who wishes to publicly perform such works must generally seek permission from the copyright owner(s) of the works.
It would be largely impractical for your co-workers to try to find all the copyright owners and request their permission for all the songs on every CD at the coffee shop (unless, for example, they are playing CDs with only songs written and recorded by unsigned bands that they know). One of the difficulties is that, as I've gone over in previous posts, there are two copyrights in recorded music: (1) the musical composition (or song) copyright and (2) the sound recording copyright (i.e., a particular performance of a song). For short, let's call these the "Song Copyright" and the "Recording Copyright," respectively. The owners of each of these two copyrights control certain public performance rights.
In the situation you describe -- playing CDs "live" rather than webcasting -- you only need to deal with the Song Copyright. This is because U.S. copyright law currently offers only a limited public performance right to the owner(s) of the Recording Copyright. Specifically, the Digital Performance Right in Sound Recordings Act of 1995(DPRA) only protects public performances of sound recordings when they are transmitted by digital means (e.g., satellite or Internet radio). Therefore, playing CDs "live" on a stereo (or MP3s "live" from a computer) at the coffee shop would not involve the public performance right in the Recording Copyright.
So let's focus on how to obtain the right to publicly play a CD. There are three organizations in the United States that can each authorize the public performance of large catalogs of songs: ASCAP, BMI, and SESAC. In the industry, they are known as the "PROs" (performing rights organizations).
The PROs offer so-called blanket licenses to venues such as coffee shops for the public performance of all of the songs in their respective catalogs in exchange for the venue’s payment of a licensing fee (usually a flat fee paid annually). (Note: The PRO would then pay out such licensing fees to its affiliated writers and publishers as so-called public performance royalties.) Since each PRO controls a separate and distinct catalog of songs, the safest course of action to protect you in the public performance of all the songs that may be on the CDs (or MP3s) that you wish to play at your coffee shop is to obtain a blanket license from all three PROs.
TIP: Some business owners choose to only play BMI songs or ASCAP songs to avoid paying three licensing fees. While this is certainly possible since all the PROs have searchable databases online, it can be cumbersome to look up each song to see if it falls within your license. I suspect that the more common approach is to only license BMI and ASCAP since together they control the vast majority of songs available for collective licensing (i.e., each controls 47-50%).
Because licensing fees can get expensive, the coffee shop may want to consider a policy that prohibits employees from generating playlists (e.g., playing CDs they own), which would likely require licensing. Instead, they could look into public transmissions such as radio and television that may be exempt from licensing. (Note: I will be covering that exemption in more detail in my next post.)
Also, the above analysis would not apply if an employee is merely bringing CDs from home to listen to in a break room as that is more likely to be a "private performance," legally speaking.
—Amy E. Mitchell
