If you are a business owner of an establishment that has actively working televisions and radios, and possibly plays live music as well, it is important to know about public performance rights and federal copyright law to be in ordinance with standard business laws. Our offices recently received a question about the details of these laws, and we thought it would be best to share the information with all business owners.
Understanding Public Performance Rights as a Business Owner
Federal Copyright Law, Section 110 (5)(B) exempts restaurants that play music transmitted via radio, TV, cable and satellite sources as long as the restaurants do not charge to hear the music in the establishment. However, music transmitted by live bands and CD’s are not covered by the exemption. Furthermore, to be in warrant with the exemption, the restaurant’s premises are required to be less than 3,750 gross square feet. Or, if the premises are greater than 3,750 square feet than the operation cannot have more than four televisions onsite.
On a side note for clarification, gross square footage includes all interior and exterior space used
to serve restaurant patrons/customers. This is in addition to kitchen, bathroom and storage space as well. A parking lot is excluded from gross square footage unless it is being used for something other than parking.
Any food service or drinking establishment that is 3,750 square feet or larger must secure public performance rights for televisions or radios if any of the following conditions apply:
More than four TVs
More than one TV in any one room
If any of the TVs used have a diagonal screen size greater than 55 inches
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
If there is a cover charge
How the Law Applies to Live Music Performances
Another issue to consider when evaluating public performance rights is live music. According to the case law, it appears that as a restaurant establishment owner you are subject to paying the licensing fees for the live music if the musician is performing licensed material as opposed to original. All participants in copyright infringement are jointly and severally liable as tortfeasors.*
If a defendant has a direct financial interest in the infringing activity and has the right and ability to supervise the activity which causes the infringement, then he/she should be held vicariously liable. The case law also indicates you cannot pass your liability off to the musicians. You both will be held liable for infringement if that takes place, even if you didn’t know it was occurring.**
In addition, the other concern is that there is more than one licensing group. Besides ASCAP there is BMI and SESAC. It appears they may all have different artists licensed, which will require extra research into whom you should be licensed through.
If you would like more information about public performance rights and federal copyright law that are applicable to your specific organization, please contact our office today at info@alharveylaw.com or (530) 217-3520.
Case law sources cited:
*Fermata, 712 F. Supp. at 1262; Screen Gems-Columbia Music, Inc. v. Metlis & Lebow Corp., 453 F.2d 552, 554 (2d Cir. 1972). [**10]
**Charles Deitcher Prods., Inc. v. Milano Restaurant, 1991 U.S. Dist. LEXIS 20191, 21 U.S.P.Q.2d 1877 (E.D. Tex. 1992) (holding corporate officer liable who had a financial interest in the infringing activity and the right and ability to supervise the infringing activity even if the officer had no knowledge that infringing performances were occurring) Swallow Turn Music v. Wilson, 831 F. Supp. 575, 579, 1993 U.S. Dist. LEXIS 12306, *9-10, 28 U.S.P.Q.2D (BNA) 1924, 1927, Copy. L. Rep. (CCH) P27,149, 1993 WL 333620 (E.D. Tex. 1993).
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