Adventures in Licensing, Part II: It’s Not Just About Live Music

In an earlier article, we discussed the importance of getting a license from ASCAP, BMI, SESAC, or all three before presenting live music at your bar, restaurant, or other venue. Purchasing blanket licenses from one or all of those organizations allows you avoid harsh copyright infringement penalties. As we’ve seen, these penalties can find you no matter how far off the beaten path your restaurant is, how unknown the band is, or how unlikely you think it is that the  music being played at your bar will be surveyed.

But what about showing major sporting events, HBO, or Netflix at your bar or restaurant? Can you broadcast the World Series, the Super Bowl, or the Game of Thrones season premiere? Believe it or not, the United States Code provides for some exceptions to broadcasts that would otherwise constitute copyright infringement, allowing you to freely engage in showing some of those, provided certain conditions are met.

If you are receiving an over-the-air broadcast of a sporting event televised on a major network like Fox, for example, it is perfectly legal to show it at your bar or restaurant provided that (1) you don’t charge for admission; (2) your establishment is smaller than 3,750 square feet; (3) you have no more than four televisions showing the broadcast; and (4) none of those televisions is larger than 55 inches. Yes, the law actually specifies qualifying square footage and screen size!

Over-the-air broadcasts, however, are increasingly becoming things of the past. Most establishments now receive their network programming through cable, satellite, or online streaming subscriptions, in which case copyright infringement cannot be avoided without a proper license, regardless of how few televisions are showing the broadcast or how small the screens. Unfortunately, the typical contract with FiOS, Comcast, Netflix, Hulu, iTunes, and others don’t include the proper licenses required for commercial or non-personal viewing. For example, if you plan to draw a die-hard baseball crowd to your bar during Game 7 of the World Series, you can put the game on as long as the above criteria are met and you’re receiving an over-the-air broadcast signal. If you happen to be a cable or satellite subscriber and have not purchased the appropriate license, however, showing that very same ballgame could result in steep fines and a lawsuit brought against you by your provider.

But there’s good news: just like in circumstances where you might find yourself purchasing a blanket license from a performing rights organization to facilitate the performance of live music at your bar or restaurant, many broadcast media providers offer affordable licenses that will allow you to show the big game, the big fight, or the big season finale of your favorite show without the fear of racking up damages to the tune of $150,000 per violation. Verizon, Time Warner, DirecTV, and others all offer business-level packages containing enhanced licenses for precisely such a purpose. Like in the case of live music, the cost of a license is much, much less than the cost of defending just a single copyright infringement lawsuit, so if part of your business’s appeal derives from showing sports or TV, the safe bet is to buy the appropriate license.

Frank Gulino is an associate attorney with Washington, DC business law firm Berenzweig Leonard. He can be reached at FGulino@BerenzweigLaw.com.

Cautionary Tale: When Contemplating Live Music at Your Venue, Get a License

Last summer, a small band performed at a bar called 69 Taps in Medina, Ohio, near Cleveland. That evening, the band covered a number of popular songs that the mostly middle-aged audience had grown up listening to. The bar had not asked for a set list, nor had the band provided one. The band took requests, playing hits like “Brown Eyed Girl” and “Freebird” for a small audience. The problem? “Freebird” and nine other songs that the band covered that evening are protected by Broadcast Music, Inc. (“BMI”), a performing rights organization tasked with collecting royalties, and 69 Taps did not have a license to present music from BMI’s catalog.

 The bar was slammed with a lawsuit brought by BMI and the copyright holders of each of the ten covered songs, demanding that 69 Taps pay significant damages and attorneys’ fees. While it may seem harsh to sue a small-time bar for copyright infringement over an amateur cover band’s decision to take requests on a summer evening, this lawsuit is a testament to the fact that BMI (one of the “big three” American performing rights organizations along with ASCAP and SESAC) takes aggressive steps to protect the intellectual property of its artists. Because 69 Taps did not ask for a set list or post one on its website, BMI could only have found out about the performance of the infringing works through its survey process—by actually having a representative in the audience to keep tabs on the performance. Any venue that presents live music, no matter how small or obscure, should expect to be “surveyed” by the three performing rights organizations. 

The solution to avoiding these lawsuits is for venues to purchase a “blanket license.” For example, if 69 Taps had purchased BMI’s blanket license, it would have had unfettered permission to present any of the roughly 8.5 million songs in BMI’s catalog for a flat annual fee. BMI allocates shares of the licensing fee to the artists whose work is represented in the venue’s programming, as determined by the same survey methodologies that discovered 69 Taps’s unlicensed performances. The cost of the blanket license is much less than the cost of defending just one copyright infringement lawsuit, so if your business plans on offering live music, the safe bet is to purchase blanket licenses from all three major performing rights organizations. Otherwise, businesses may have to “face the music.”

Frank Gulino is an associate attorney with Washington, DC business law firm Berenzweig Leonard. He can be reached at FGulino@BerenzweigLaw.com.

Cautionary Tale: When Contemplating Live Music at Your Venue, Get a License

Last summer, a small band performed at a bar called 69 Taps in Medina, Ohio, near Cleveland. That evening, the band covered a number of popular songs that the mostly middle-aged audience had grown up listening to. The bar had not asked for a set list, nor had the band provided one. The band took requests, playing hits like “Brown Eyed Girl” and “Freebird” for a small audience. The problem? “Freebird” and nine other songs that the band covered that evening are protected by Broadcast Music, Inc. (“BMI”), a performing rights organization tasked with collecting royalties, and 69 Taps did not have a license to present music from BMI’s catalog.

 The bar was slammed with a lawsuit brought by BMI and the copyright holders of each of the ten covered songs, demanding that 69 Taps pay significant damages and attorneys’ fees. While it may seem harsh to sue a small-time bar for copyright infringement over an amateur cover band’s decision to take requests on a summer evening, this lawsuit is a testament to the fact that BMI (one of the “big three” American performing rights organizations along with ASCAP and SESAC) takes aggressive steps to protect the intellectual property of its artists. Because 69 Taps did not ask for a set list or post one on its website, BMI could only have found out about the performance of the infringing works through its survey process—by actually having a representative in the audience to keep tabs on the performance. Any venue that presents live music, no matter how small or obscure, should expect to be “surveyed” by the three performing rights organizations. 

The solution to avoiding these lawsuits is for venues to purchase a “blanket license.” For example, if 69 Taps had purchased BMI’s blanket license, it would have had unfettered permission to present any of the roughly 8.5 million songs in BMI’s catalog for a flat annual fee. BMI allocates shares of the licensing fee to the artists whose work is represented in the venue’s programming, as determined by the same survey methodologies that discovered 69 Taps’s unlicensed performances. The cost of the blanket license is much less than the cost of defending just one copyright infringement lawsuit, so if your business plans on offering live music, the safe bet is to purchase blanket licenses from all three major performing rights organizations. Otherwise, businesses may have to “face the music.”

Frank Gulino is an associate attorney with Washington, DC business law firm Berenzweig Leonard. He can be reached at FGulino@BerenzweigLaw.com.