Audio Recording

One of the most confusing aspects of music licensing is the “public performance” section. So many licensees (even coming from radio, TV, film and movie production) do not fully understand the meaning of this “public performance”. This blog posts contains all the information you need to know about public performance in music. Let start with the most basic definition, according to this page:

http://www.bitlaw.com/copyright/scope.html

The legal definition means that music; as a copyrighted work has “public performance right” because it is mandated by law.

This means that if a copyrighted song or music is commercially used other than the copyright owner, any user has to obtain the so-called “public performance” license.

Most common public use of song/music

a. Radio broadcasting (music you hear in FM radio stations as well as in the college, amateur and AM radio stations are public use of music) – in this case, only the radio broadcasters (the owners of these stations) are needed to secure public performance license.

b. TV broadcasting – when you hear music in TV shows series, advertisements and programs. It is another public use of song.

The owners of the TV stations would be paying public performance fees to the copyright owners.

c. Music in films – when you hear music in films shown in movie theaters; this is another commercial use of copyrighted music in public.

Public performance is just one of the music rights in film.

d. Music you hear in the malls, restaurants and companies – of course, since music has been used by these commercial establishments to soothes the environment, its people and its customers; then these establishments will be going to get a public performance license.

e. Music in the internet- yes, even You Tube by definition of public performance needs to secure a public performance license. You Tube makes money by ads from the video which might contain copyrighted music.

YouTube requires that you have permission to use the music or give attribution to the original author of the music.

Confusing aspects of public performance in TV/Film

There are lots of questions in this sector pertaining to public performance. Consider the following scenario:

a. There is a production company whose main job is to produce and direct films, movies or shows.
b. The actual broadcasting company whose main job is to broadcast the produced works.

In some broadcasting company, sometimes they have in-house production company. The rule:

1.) Only the broadcasting company is required to get a public performance license because they are the ones making money from the use of music in public performance.

2.) Production companies making the shows (producers, directors, engineers) does not secure public performance license. It is because their use of copyrighted music is not publicly performed.

Since producers and directors are the ones creating the show or movie. They are incorporating music in their projects. They only need to secure synchronization and master recording license (and also mechanical license if they are reproducing the movie project with the music in physical media such as CD) and not public performance license.

Common public performance right societies such as ASCAP, BMI and SESAC are requiring both broadcasting and production company to submit cue sheets.

Now here is another confusing aspect, if I am a broadcasting company, am I going to submit cue sheets? The answer is yes, but you will have to get it from your production company.

Another question, if “I am only a production company and my client is not neither broadcasting music, am I going to submit cue sheets?” The answer is yes; because your client will be using the music commercially for either TV, film or video production, thus it classifies for public performance.

Another confusing question: to whom I am going to get public performance license if I am going to license a song? The answer is, if the music publisher is affiliated with ASCAP, you are going to get license from ASCAP. If from another society, you have to get it from that society.

Again, the situation is still confusing. Some licensee will asked “So you mean I am going to get a license from ASCAP and from the music publisher?” The answer is yes, ASCAP/BMI/SESAC will grant you to public performance of songs in their catalog, while you still need music publisher permission if you are using other music rights aside from public performance. Examples of these rights are synchronization (sync), mechanical rights, or even printing rights. You will learn this in detail in music rights for film.

Examples of Public Performance- Frequently Asked Questions

I received this inquiry from a reader: I support the license for public performance of music. Any establishment that has live music performed for the enjoyment of their guests should pay for a license. The question is, what is considered a public performance?

A family or soccer team rents the party room in a pizza place and they start to sing copyrighted songs, is that a violation? One may argue that it is in the public and it is a performance but it is not for public consumption. Its in a private room. What do you think? A youth group goes camping to a state park that is open to the public and begin to sing around the campfire copyrighted songs. Is that a violation? It is in the public and they are singing, is that considered a public performance?

Is the intent of the law to prevent anyone from singing copyrighted songs? Does a mother singing to her child a copyrighted song while shopping in violation.

A Senior Center host a group meeting for their members to come and sing songs together. If they sing copyrighted songs are they in violation? There is not an audience here to perform to just a group of friends gathered together to sing an enjoy each others company.

So the question is “What is a Public Performance”?

Thanks for your help and providing a web site with great information.

Answer: I will attempt to answer each of the above questions as simple as possible. First, you really need to know what is the official definition of “public performance”? ASCAP defines it this way:

Source:
ascap.com

“A public performance is one that occurs either in a public place or any place where people gather (other than a small circle of a family or its social acquaintances.) A public performance is also one that is transmitted to the public; for example, radio or television broadcasts, music-on-hold, cable television, and by the internet.”

Another that needs to be defined is that what constitutes to be a “public place”? The definition of public place is that it is “generally an indoor or outdoor area, whether privately or publicly owned, to which the public have access by right or by invitation, expressed or implied, whether by payment of money or not, but not a place when used exclusively by one or more individuals for a private gathering or other personal purpose. ”

Source:
uslegal.com

1.) A family or soccer team rents the party room in a pizza place and they start to sing copyrighted songs, is that a violation?

The gathering does not fall to public place definition because the place is used exclusively by family or soccer team members only. There is no public performance violation.

2.) A youth group goes camping to a state park that is open to the public and begin to sing around the campfire copyrighted songs. Is that a violation? It is in the public and they are singing, is that considered a public performance?

Every one can roam around the state park and witness the event. Since it is in the public place and the youth group is not a private gathering (since its open to the public), public performance rules of music will be applicable. The youth group organization can be profiting from this event (membership fees, etc). A portion of income collected should also go to the composers of the music; if they will sing copyrighted songs during a campfire gathering in public. Unless if they would like to gather and perform in private place only, then there is no public performance involved.

3.) Is the intent of the law to prevent anyone from singing copyrighted songs? Does a mother singing to her child a copyrighted song while shopping in violation.

Not at all, mother is singing to her child only, the use is personal. There is no public performance involved.

4.) A Senior Center host a group meeting for their members to come and sing songs together. If they sing copyrighted songs are they in violation? There is not an audience here to perform to just a group of friends gathered together to sing an enjoy each others company.

It is an exclusive/private gathering so public performance rules will not apply. I hope I clarify everything about what is “public performance”. So if you understood it correctly, it is why:

a.) Commercial radio stations should pay performance royalties to authors of the music because they are profiting from the use of music in their radio stations.

b.) Same thing with TV stations, cable TV, websites, malls, restaurants and any other public place like concert venues.

I received another reaction from a reader, see below:

1.) One more Question about #2 the one about the youth group at a state park. I see now that it is not a private camp site and the general public would have access to the performance. The kids singing would become a public performance.

Answer:

Yes, you are right that they are performing in a public place but the fact that the kids are singing for their own pleasure does fall into the category that they should pay public performance fee for the authors creating the music.

Unless, of course those kids are starting a band, selling tickets and then performing in a state park for a concert event. Then the concert organizers should pay the authors of the music for a performance fee. The primary reason is that they are now commercially using the copyrighted music in the public.

2.) What if the campsite was at a private campground, like lets say a Girl Scout Camp. Can the campers then sing copyrighted songs? I think that would be okay because it is a private location. But then I wonder if they put on a program for their parents and other non-campers, that then would be a public performance, is that right?

Answer:

Lets go back to the definition of public place. Now they are in Girl Scout camp, but public can still access the program by invitation or by tickets. Thus the gathering is not considered private; unless if they restrict public access and send invitations to the parents only, but not the public or the non-campers. This makes the gathering private since specific persons can only attend and not anyone.

Singing songs in private gathering does not need to secure a public performance license.

3.) How about a educational music camp? As I understand it, a face-to-face instruction is okay, but at the end of the week the students put on a show to the public, that would not be okay, is that right?

Answer

Who are the audience? What is the type of gathering? Private or public? If they allow public viewers, its a public gathering and it needs to secure a public performance license. If audience are only selected persons (parents only, not the public), its a private gathering; public performance license is not required.

Disclaimer: Remember that I am not an entertainment lawyer, so take this information at your own risk.