Public performance

Question 1

what is public performance

Answer 1

“To perform or display a work ‘publicly’ means –

To perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered; or

To transmit or otherwise communicate a performance or display of the work to a place specified by clause 1 or to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times.”

Question 2

examples of public performances

Answer 2

Radio and TV broadcasts
Live performances in concert halls and clubs
“On hold” music for hone systems
Background music in shopping malls
Music on the Internet
Music played on airplane entertainment systems
Music played at gyms or restaurants
Music played at sporting events in stadiums and arenas
Music played in elevators

Question 3

what are PROs

Answer 3

What are PRO’s? They are organizations that represent songwriters and publishers in their right to be compensated for the public performance of their work.

Question 4

PROs in the US

Answer 4

In the U.S.:
ASCAP (non-profit)
BMI (non-profit)
SESAC (for profit)

Question 5

PROs in Europe

Answer 5

Foreign:
France – SACEM
UK – PRS
CANADA - SOCAN

Question 6

why do people use PROs

Answer 6

? In exchange for fees paid by the end user, the end user may publicly perform all music compositions in a PRO’s “repertoire”. This is called a blanket license.

End users who use little music (like talk radio) may choose to get a per-program license instead of a blanket license.

Some companies (like ESPN) prefer not to get either a blanket or per-program license, and instead get a direct license right from the music publisher.

Question 7

as a songwriter and a publisher how do you use PROs?

Answer 7

As a songwriter, you only get to affiliate with 1 PRO at a time. When your contract with one ends, then you can switch to another if you choose.

Publishers may have a number of songwriters, each of whom may be affiliated with a different PRO, so the publishing companies sign with multiple PRO’s.

Question 8

PROs have exlcusive rights, t or f?

Answer 8

The PRO’s only have nonexclusive rights to the publisher’s repertoire. This means that the publisher can license its music compositions for public performance even though the applicable PRO has those compositions in its repertoire.

The only caveat is that if the publisher license a work, it must notify the applicable PRO so that the PRO doesn’t sue the end user for public performance without a license when the license was in fact obtained directly from the publisher.

Question 9

what is the basis for public performance fees?

Answer 9

License arrangements vary, but the following are some common arrangements:

Radio Stations: A small percentage of gross revenues (usually around 2.5%).

Restaurants, nightclubs, bars: Annual fees based upon seating capacity, number of nights of live or recorded music, whether admission is charged, etc.

Concerts: Based on ticket revenue and venue seating capacity. Only biggest concerts usually counted.

Colleges/Universities: Based on number of full-time students.

Retail: Based on square footage and number of speakers.

Question 10

how do PROs collect payment?

Answer 10

The PRO’s collect the revenue and put it into a fund. From that fund, they take out their expenses (and SESAC collects a fee of undisclosed amount) and then pay the rest to the writers/publishers.

Payment is usually made quarterly. Unlike the case of other income streams for publishing (i.e. mechanical royalties, synchronization royalties), the PRO pays the writer’s half directly to the songwriter instead of paying the entire amount to the publisher and letting the publisher pay the writer his/her share.

If the publishing deal between songwriter and publisher is that the writer splits the publisher’s share, then the songwriter needs to get that share from the publisher

Question 11

how do pros know wahts being publically performed? radio

Answer 11

Radio:

Survey, logs, sample listening, radio charts. Stations are monitored.

A scientifically selected group of stations is picked, what they are playing is assessed, and the songs are identified. For each time your song is played, you get an appropriate share of the license pool.

i.e. if your song comprises .00125% of airplay during a given quarter, then you will get .00125% of the royalty pool.

Question 12

how do PROs know whats being performed? tv

Answer 12

TV: Relies on cue sheets. Cue sheets are created by the producer and lists the name of the production and the title of each song, with writer, publisher, type of use, and duration of use. When the program is shown on TV, the PRO can look at the cue sheet to know who to pay.

Question 13

how do PROs know whats being performed? touring

Answer 13

Touring/Concerts: Usually based on set lists, focused on top 200 tours.

Question 14

how do PROs know whats being performed? digital services

Answer 14

Digital Services: Usually based on surveying logs.

Question 15

how do PROs know whats being performed? restaurants

Answer 15

PRO’s can’t survey every restaurant, store, gym, airplane, etc. These are called “nonsurveyed venues”. Money gets allocated at the same percentage as for radio, so if your percentage of radio is .00125%, then .00125% of the royalty pool will be given for nonsurveyed venues.

Question 16

Does a business need licenses from all PRO’s?

Answer 16

Does a business need licenses from all PRO’s?

Yes, unless it wants to pre-select the music it plays from the repertoire of select PRO’s.

Question 17

Are musicians, DJ’s and entertainers responsible for obtaining licenses?

Answer 17

Are musicians, DJ’s and entertainers responsible for obtaining licenses?

While copyright law technically makes everybody (including musicians, DJ’s and entertainers) responsible for obtaining licenses (or else be liable for infringement), PROs almost always put the responsibility on the business and not on the performer. So the technical answer is “yes”, but the practical answer is “no”

Question 18

public perforamnce exceptions

Answer 18

aiken exemption, fairness in music licensing

Question 19

EU union opposition

Answer 19

Shortly after the Fairness in Music Licensing Act went into effect, the EU began dispute proceedings in front of the World Trade Organization (WTO), saying that the U.S. act was incompatible with the Berne Convention.

The EU said that U.S. and EU music copyright owners were losing about $43 million per year due to the U.S. exemptions. It relied on a 1998 Dun & Bradstreet report that said approximately 70% of all U.S. dining establishments and 45% of all U.S. retail establishments are entitled to the exemption, depriving copyright owners of significant revenue.

While the U.S. and the EU settled, the Fairness in Music Licensing Act remained in effect. For a few years, the U.S. put money into a EU fund for rights-holders. Now, the U.S. continues to have discussions with the EU over a mutually acceptable resolution of this dispute.

Question 20

aiken exemption

Answer 20

In 1975, the U.S. Supreme Court heard Twentieth Century Music Corp. v. Aiken, which held that a public performance did not occur where a small fast-food restaurant used a single home-type radio with 4 ceiling speakers. The court essentially held that the restaurateur was a listener and not a performer.

It was hard to apply Aiken to the myriad of similar cases, so legislative involvement was needed. The 1976 Copyright Act made the playing of radio or TV a public performance…no debate. But §110(5), known as the Aiken exemption, exempts from copyright liability public performance over standard radio or TV sets in small commercial establishments where the works are played for customer enjoyment. Why? Because such performances are de minimus invasions of the copyright owner’s interests.

But the Aiken exemption is a limited one.

It only applies to transmissions, excluding performances of recorded music or videotapes, in small commercial settings. No CD’s…no movies on DVD.
The establishment cannot charge a fee or admission charge to listen to the performance.
The proprietor cannot install a commercial sound system or convert a standard sound system into the equivalent of a commercial system.

The Aiken exemption was interpreted in too many ways in the following years, so after complaints by restaurant and bar owners, the National Restaurant Association and the National Licensed Beverage Association lobbied in the early 1990’s for a better exemption.