Who has to pay if music plays?

Last week, the American Society of Composers, Authors and Publishers (ASCAP) sued a Seattle restaurant owner and 25 others across the country for allegedly failing to pay royalties to play music inside their venues.

The story produced a firestorm of debate and many questions from readers. We asked two experienced Seattle attorneys to help answer some of them.

Matt Geyman is an intellectual-property lawyer with Phillips Law Group in Seattle. Marshall Nelson is a partner in the Seattle office of Davis Wright Tremaine.

Q: Many people don't have a clear understanding of the implications of using music for public performance. In a nutshell, what does the law say?

Geyman: Copyright law grants songwriters and music publishers certain exclusive rights, one of which is the right to perform their copyrighted music in public or to permit others to do so. A public performance includes live music at any public venue, recorded music performed by disc jockeys, and CDs, records and tapes played for patrons. A public performance without permission of the music owner or the owner's representative violates copyright law unless one of a few exceptions applies.

In theory it's possible to negotiate a license with each music owner, but in practice the only reasonable method is to obtain a blanket license from one or more of the licensing organizations that have been formed to represent music owners. The two licensing organizations that together control the vast majority of songs in the U.S. are ASCAP and Broadcast Music Inc. (BMI).

Q: Could you give a few practical examples of what might be considered exempt? A cafe that plays its own CDs for patrons over a stereo? Music played in a factory or office for employees? Music played by a cover band at a large party?

Geyman: One exemption is for music transmitted by radio and played in restaurants, bars and other businesses, provided that certain size requirements are met, the music is not retransmitted and there is no admission charge. Permission also is not required for music played or sung at a place of worship, again provided that it is not retransmitted.

However, a cafe that plays CDs or tapes for patrons over a stereo system would not be exempt. Performances by a cover band at a party might or might not be exempt depending on the size and nature of the party — the law defines a public performance to include any performance at which a substantial number of persons outside the circle of a family and its social acquaintances is gathered.

Playing music for employees at an office or factory, either by radio or recorded music on a stereo system, should be exempt as long as it is a private workplace and not a public setting. Playing music on the radio for passengers in a taxi or tour bus should also be exempt.

Nelson: There is no exemption for public performance of music on CDs, but Section 110 would exempt radio and television transmissions, subject to tight restrictions on the size of the room, size of the TV screen, and number of speakers.

The definition of "public" performance under Section 101 of the Copyright Act is performance "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."

Whether a factory or office fits this definition will depend on all the facts. Under the Section 101 definition, if "a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered," it is likely to be a public performance.

Q: Who's ultimately responsible — live bands or DJs, or the owner of the venue where they perform?

Geyman: Under copyright law, the live bands or DJs that perform the music and the owners of the venues are both responsible. But in practice, music owners typically enforce their rights against venue owners, because [they] are easier to find and they are the ones who could have obtained blanket licenses from ASCAP and/or BMI to use music for public performances. It's possible for music owners to sue cover bands and DJs for playing copyrighted songs without permission, but unlikely except in extreme cases (e.g., "Beatlemania" would probably be sued if it performed a show of Beatles songs without permission).

Nelson: Strictly speaking, anyone other than the copyright owner would need a license to perform the music publicly. However, in practice, bands usually rely on the venue to have a blanket license that covers all performances at the venue.

Q: In interpreting this law, is any consideration given to the value of marketing or promotion of the music — the idea that playing it in public might result in more sales?

Nelson: Generally, no. Courts have recognized that the decision of how to market and promote the music is up to the copyright owner.

Geyman: It's certainly true that performing copyrighted music publicly without the owner's permission helps promote the music and should result in more sales, but that's not a defense to copyright infringement.

It should be a consideration, though, for ASCAP and BMI, which represent hundreds of thousands of songwriters and publishers and millions of songs. They depend on the public to buy and listen to their music and that should be an important consideration for them when deciding how to protect and enforce their rights.

Q: How do you think recent changes in media and technology (CDs, digital copying, the Internet, etc.) are affecting the concept of copyright? Some groups, for example, are pushing for the notion of "fair use" to be expanded.

Nelson: The Internet and other technology have made it much easier to infringe, and much harder to enforce, copyrights. At some point, people start assuming that if "everyone is doing it" it must be legitimate, but the law has not changed; unauthorized copying is still an infringement unless it is specifically exempted under copyright law — for example, the exemption covering copying of recordings for private noncommercial use.

The concept of fair use has to be more flexible to accommodate certain kinds of uses triggered by new media and technology, but the basic principles should not change.

Under Section 107 of the Copyright Act, fair use is intended to accommodate certain uses for such purposes as "criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research. ... " It is not a catch-all for anything the user might think is "fair."

Q: Is there a sense among copyright holders that if they don't crack down on uses such as this, the strength of their copyright protection may be weakened? Is that a legitimate concern, legally speaking?

Geyman: I think that is definitely a concern among copyright holders, and in some cases it is a legitimate concern because a copyright can be lost if it is abandoned. Abandonment is a hard test, however, and requires some overt act indicating a purpose to surrender the rights and to allow the public to copy. That means that simply failing to universally enforce your copyright would rarely be deemed an abandonment.

Nelson: I think it's a different concern. If they don't take action, it helps foster the perception that the unauthorized uses are legitimate, and the problem eventually becomes too big to address effectively.

On the other hand, a lawsuit (and the resulting news coverage) gets the word out about what the law is and what it requires. Sometimes it leads to changes in the law, as in the case of private copying of recordings, now protected, or the safe harbor for small businesses' use of radio and television, but those kinds of carefully crafted exemptions are better than allowing wholesale disregard of the law to go on unchallenged.

Q: What do you think the heated debate over paying royalties to play copyrighted music in public says about notions of intellectual property?

Geyman: Part of the reason for the heated debate is probably the intangible nature of intellectual property itself. For songwriters and publishers, music is their life and business and they expect to be paid fairly for the commercial use of their songs. But for others, it may be harder to think of songs as property that cannot be used without permission, especially when a DJ, for example, has already paid for the recordings containing the songs.

Another and probably more important part of the reason is all of the recent progress in media and technology (CDs, digital copying, file-sharing, etc.) which have made it much easier to obtain music for free and harder to think of music as something that cannot be performed in public without paying the owner.

In short, the opportunities for copyright infringement are far greater, which itself has called into question the scope of protection that should be afforded to music, videos and the like. The debate is heightened by the fact that legitimate arguments can be made by both sides that what they are doing will actually enhance the value of the work of art.

Nelson: This argument has been going on for at least 100 years.

Kristi Heim: 206-464-2718 or kheim@seattletimes.com