Restaurants & Songwriters: Playing The Same Song
If you don’t understand why you must pay to use music in your restaurant or bar, you’re not alone. The need for music licensing often comes as a surprise to new business owners, and sometimes is misunderstood by even veteran restaurateurs. Because we can buy a CD or digital download and play music as much as we want in our homes or cars, we sometimes like to think we can do the same in our businesses.
Songs — like computer software, books, poems, patented recipes, magazine articles, and other forms of intellectual property – belong to creators of the work until their copyright is transferred or expires. Although it is harder to touch with your finger, intellectual property is treated much like physical property under the law. If you own physical property, such as the building in which your restaurant is housed, you control the usage, rental and sale of that real estate. You also help determine the price of that property when it is sold.
The concept behind music licensing is as old as the U.S. Constitution, which gives Congress the power to grant patents and copyrights. Just as the McDonald’s restaurant chain protects its brand names and “golden arches” trademark, songwriters defend their property from unauthorized use. Under U.S. Copyright Law, no other business can perform or play a copyrighted song publicly without the songwriter’s permission. In essence, each songwriter is a vendor to restaurants, providing a specialized product – a unique musical work.
In many ways, a songwriter is a typical small business owner. As with restaurants and other businesses, a few songwriters are especially successful and highly celebrated in our news media – while the majority barely makes ends meet. Most songwriters are unknown to the people who use their music.
A songwriter, like other intellectual property owners, has the right to authorize the duplication of his work (such as CDs and mp3s), distribution (online, in record stores, retail establishments, etc.) and sale of his or her product. In reality, the performer (singer and/or musicians) rather than the composer of the musical work makes the bulk of the income from those uses. Most of the composer’s income is derived from the public performance (live or recorded) of the music in businesses (radio stations, restaurants, bars, etc.) which use his or her product to create ambiance through the performance of that music.
It would be very difficult for the writer of a popular song to negotiate a price and collect royalties from every restaurant or bar wanting to use his work. Because it is so difficult for songwriters to authorize the use of their property for each and every business desiring their music, and conversely for the business owner to contact each and every songwriter whose music is used, Performing Rights Organizations (PROs) were established to handle that seemingly unmanageable process. With a single annual payment, businesses receive a blanket music license from BMI, which provides lawful access to an enormous catalog of music (more than 10.5 million songs) from more than 700,000 copyright owners.
Because songwriters and restaurateurs have better things to do than negotiate thousands of contracts with each other, Performing Rights Organizations usually are the easiest, least expensive way of bringing these business people together for mutual benefit. BMI is a not-for-profit-making performing right organization. All of the money it collects, after expenses, is paid out to songwriters and copyright owners. Currently, the payout amounts to more than 85 cents of every dollar.
While some restaurant operators may avoid paying music fees for a while, it can be an expensive game. Restaurants and bars are open to the public and highly visible. The cost of using music without permission can be high. Under the U.S. Copyright Law, each musical composition which has been performed without authorization entitles copyright owners to damages of between $750 and $30,000, plus legal fees.
Q – “How do I know if I am playing BMI music?”
A – Approximately one out of every two songs played on radio is BMI-licensed music. In addition to the music of our U.S. copyright owners, the BMI repertoire also includes the music on songwriters and composers in more than 90 countries. BMI writers have won numerous GRAMMY’S, Country Music Association, and American Music Awards. They also represent the largest percentage of inductees into the Rock & Roll Hall of Fame, account for roughly one-half of all of the winners of the coveted Pulitzer Prize in the field of classical music, and have received the most Rhythm & Blues Foundation Pioneer Awards and Downbeat Jazz Poll Awards.
For a list of BMI’s award-winning song titles and songwriters please visit our online repertoire search.
Q – “If I already pay one performing rights organization for the music I use, do I need permission from anybody else?”
A – Songwriters choose one of three performing rights organizations to represent them. That organization can license only the music of its affiliated songwriters.
Q – “Aren’t TV, cable, and radio stations already licensed with BMI?
A – They are, however, those agreements do not authorize the performance of such TV, cable, and radio to the public by businesses and other organizations. Public performances of radio and TV are specifically addressed in Title 17, Section 110(5)(B) of the U.S. copyright law which states that any food service or drinking establishment that is 3750 square feet or larger, must secure public performance rights for TVs or radios if any of the following conditions apply:
For TV, if the business is using:
- more than four TVs; or
- more than one TV in any one room; or
- if any of the TVs used has a diagonal screen size greater than 55 inches; or
- if any audio portion of the audiovisual performance is communicated by means of more than six loudspeakers, or four loudspeakers in any one room or adjoining outdoor space; or
- if there is any cover charge.
For radio, if the business is using:
- more than six loudspeakers; or
- more than four loudspeakers in any one room or adjoining outdoor space; or
- if there is any cover charge; or
- music on hold.
Q – “Do we need to secure a license for our jukebox?”
A – Many jukebox providers already cover your BMI license fees through their service. As long as your jukebox is coin operated, your customers have access to the jukebox and you do not charge a cover/admission price to get in then your jukebox provider agreement may cover the public performance fees from the jukebox. Be sure to check with your jukebox provider and confirm.