The manager at one of the ROCs we represent recently sent me a "Performance License for RV Parks/Campgrounds" from a company called SESAC. The manager wanted to know whether SESAC had the right to insist that the community obtain a license in order to play live or recorded songs in SESAC’s music catalog at community events.
I know that several other communities (both with and without RV sections) have been contacted about the need to have a "performance license" to play music in the clubhouse or rec hall. In addition, my friends at SWFROC suggested that other ROCs wanted to know more about these licenses.
Federal copyright laws are based on the concept of property rights--and, in the case of songs and music, these laws view the songwriter’s work (the creation of the song) and the publisher’s work (the distribution of the song) as a "property". In other words, the songwriter and publisher "own" the song and no one else can use the song without the permission of the songwriter and publisher.
There are three recognized "performing rights organizations" ("p.r.o.’s") that have been established to ensure that songwriters and music publishers are properly compensated when their songs are performed in public: The American Society of Composers, Authors and Publishers ("ASCAP"), Broadcast Music, Inc. ("BMI") and the Society of European Stage Authors and Performers ("SESAC"). Basically, each of these organizations has compiled a huge catalog of music and protects the property rights of the creators and publishers of that music by collecting licensing fees from businesses that use any of that music and distributing those licensing fees as royalties to songwriters, composers, and music publishers in their catalog.
The "Frequently Asked Questions" section on ASCAP’s website defines a "public performance" as a performance "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 a performance "that is transmitted to the public" such as radio or television broadcasts, music-on-hold (yes, that means the music you have to endure while waiting for a real person to speak with you on the telephone), cable television, and by the internet.
With a few very limited exceptions, any "public performance" requires the permission of the owner of the music or his or her representative–and that usually means ASCAP, BMI, or SESAC.
As far as the big three "p.r.o.’s" are concerned, any "public performance" of any music in their catalog that does not fall within these limited exceptions requires a license from that "p.r.o." and the failure to obtain that license is a violation of Federal copyright laws.
ASCAP, BMI, and SESAC will actively pursue businesses that violate these copyright laws. For example, earlier this summer, ASCAP announced that it had filed 21 separate copyright infringement actions against nightclubs, bars and restaurants in 13 states. Apparently, in each of these cases, the offending business either failed to obtain a license from ASCAP or had failed to pay the fees owed to maintain its license and publicly performed musical works of songwriters, composers, or music publishers in ASCAP’s catalog.
The penalties for copyright infringement can be substantial--and in extreme cases may cost an offending business at least $100,000 in fines.
In addition, having a license to play songs from the catalog of one "p.r.o." does not give a business the right to play songs from the catalogs of the other two "p.r.o.’s"–separate licenses will have to be obtained from those two "p.r.o.’s" to play songs from their catalogs.
Finally, a few other points to consider:
- Purchasing sheet music or a record or CD does not authorize that purchaser to publicly perform that music–for example, by performing that music live or playing the record or CD at a community event in the ROC clubhouse.
- ASCAP’s "Frequently Asked Questions" section notes that some people "mistakenly assume that musicians and entertainers must obtain licenses to perform copyrighted music or that businesses where music is performed can shift their responsibility to musicians or entertainers." According to the ASCAP site, the copyright laws say that "all who participate in, or are responsible for, performance of music" are legally responsible–in ASCAP’s view, "since it is the business owner who obtains the ultimate benefit from the performance, it is the business owner who obtains the license. Music license fees are one of the many costs of doing business."
- Associations that have "movie nights" for their residents and guests should be aware that copyright protection also extends to movie producers and distributors
Obviously, ROC managers and board members have some important factors that must be considered when events involving music are held in the common areas of the community.
I’ve just skimmed the surface of this topic but would hope that every ROC consults with its attorney when faced with these issues.