Ruly Press

Playing Music in Public

Q: Can a business ever play music in public without a license?

A: Sometimes.

Q: Um, could you be a little more specific?

A: Sure. But first keep in mind that for every recording a business might want to play, there are two copyrights: one for the “sound recording” (think of this as the performance, or the actual sound, that was fixed on the CD or in the mp3 file) – and another for the “musical work” (this is the composition – the song the songwriter composed – that’s embodied/performed on the sound recording.) For now, we’re just going to talk about the “musical work.”

Q (from the songwriter): So if I write a song (oh, sorry – I mean a “musical work”) and then I record that song, do I own two different copyrights?

A: Unless you transferred your rights to a publishing company or a record label, yes. You have one copyright for the musical work and another copyright for the sound recording. If other people are involved, of course it gets more complicated. But the general rule is: if you created it, you own the copyright.

Q: Why are we only talking about the musical work right now?

A: Because that’s the copyright that ends up costing businesses so much money when they want to play music in public.

Q: Why is that?

A: When you own a copyright you get a “bundle” of different rights. For example, the copyright for your musical work includes the exclusive right of reproduction (meaning nobody can make a copy of the work); adaptation (nobody can create a new work based on it); distribution; public performance; and public display. Unless there’s some exception in the law, nobody can do any of those things with/to your work unless they have a license from you.

Q: And?

A: And this. As it turns out, the copyright for sound recordings does not include an exclusive right of public performance.

Q: Please explain.

A: It’s just the way the law is written. Sound recording copyrights include the exclusive rights of reproduction, adaptation and distribution, but not public performance or public display.

Q: And playing music for the customers and employees of a business is a “public performance?”

A: Exactly.

Q: Go on.

A: Think back to that recording you made of your original musical work. If sound recording copyrights included the exclusive right of public performance (as musical works do), the business would need two separate licenses from you: one for the musical work and one for the sound recording. But that’s not the case, because (with one exception we’re not going to discuss) the copyright for a sound recording does not include a public performance right. So if the business wanted to play your recording in public, they’d need a license from you with respect to the musical work – but not for the sound recording.

Q: This is kind of off track, but if the business wanted to copy my CD (instead of playing it publicly), then would they need two separate licenses?

A: Absolutely. Both musical work and sound recording copyrights include the exclusive right of reproduction, so if anyone wanted to copy the CD they’d need a reproduction license for the musical work and a reproduction license for the sound recording. (Great question!)

Q: OK, thanks for the background. But we still don’t have an answer to our original question: can a business ever play music in public without a license?

A: Sometimes.

Q: Very funny.

A: Well let's review. The business can play a CD in public without a license from the sound recording copyright owner.

Q: Why, again?

A: Because a sound recording copyright does not include the right of public performance.

Q: Oh, yeah. But what about the musical work copyright? You just said it does include the right of public performance.

A: Right. In general, the business does need a license from the musical work’s copyright owner. The only reason we answered “yes” to your question is because there are a few limited exceptions in the law.

Q: Like what?

A: If the business (other than a bar or restaurant) has less than 2,000 gross square feet, it may be able to turn on an FCC-licensed radio or television station without a public performance license. (For bars and restaurants the limit is 3,750 gross square feet.) The rules are kind of complicated, though, so every business has to analyze its situation very carefully.

Q: Are there any other exceptions?

A: Yes. A radio/TV exception might be available if the business uses only a “single receiving apparatus of a kind commonly used in private homes.” But again, the rules get dicey.

Q: Is that it?

A: Pretty much, yes.

Q: So a business can never play CDs or mp3s in public?

A: That’s right. The limited exceptions only apply to “transmissions” like radio and TV. The business may never play a CD or mp3 in public, without public performance licenses for the musical works “embodied” on those media. Plain and simple: playing a CD/mp3 in public without a license is copyright infringement.

Q: We bet a lot of businesses don’t realize that.

A: Agreed.

Q (from the songwriter): Wait. One more thing. Suppose I record an old musical work that I didn’t write, but that’s fallen into the public domain? Can the business play that recording without any licenses at all?

A: Very likely, yes.

Q: Why, again?

A: Because as to the sound recording: no public performance license is ever required. As to the musical work: if there’s no more copyright (which is the case with “public domain” works), there’s no need for a license.

Q: What if I created my own, new arrangement of the public domain work?

A: Then, possibly, your arrangement is a new musical work subject to copyright protection. In that case, the business would need a public performance license from you.

Q: So, what do we do now?

A: Well as for you, songwriter: would you like the exposure of having small to medium-sized businesses play your music (legally) for their customers and employees? And as for you, business owner: would you be interested in an affordable source of independent background music for your public spaces?

Q (from both): That’s our business.

A: It certainly is. And our business at Ruly Music is going to be connecting independent artists with small to medium-sized businesses. If you’d like to know more, please contact us.