Pay to play

Jul. 13—Editor's note: This story has been updated to include information on the licensing fees paid by Cullman Parks, Recreation & Sports Tourism.

Music is an inescapable part of our everyday lives, enhancing the atmosphere as we go out to eat with our families and as we peruse the shelves of our favorite retail establishments. But with the frequency with which songs are consumed, it might be easy to forget that like most things worth enjoying in life — music isn't free.

Broadcast Music Inc. (BMI) — one of the three major performing rights organizations (PROs) in the US — filed a claim in federal court against Moe's BBQ in Cullman last month, seeking a court order preventing the franchise from playing BMI-licensed music, and for Moe's to pay statutory damages to BMI.

The lawsuit may leave some business owners left wondering how exactly this can affect them, and do they even have to pay for the music played in their establishments.

BMI along with the American Society of Composers, Authors and Publishers (ASCAP) and the Society of European Stage Authors and Composers (SESAC) exist to ensure that the owners of copyrighted pieces of music receive financial compensation for the songs they create. Creators are able to decide which PRO to register their music with and do so via their online account. Jodie Thomas, a representative of BMI said that often the owners of these copyrights are not the artists heard singing them on the radio, but rather the songwriters operating on a smaller scale behind the scenes. BMI stated that these performance fees are the principal source of income for music creators.

"While many songwriters are household names, there are many more who are not as well-known and rely on the licensing fees that BMI collects to make a living. These licensing fees are distributed as performance royalties to our affiliated songwriters, composers and music publishers when their music is played publicly," Thomas said.

Jesse Priest, a local independent country musician, exemplifies this. Priest said that while his income stream from ASCAP — the PRO which Priest has chosen to file his music — may not be all that substantial, it helps to legitimize himself as a working musician. In particular, when filing taxes.

"For instance [I] traveled to Kentucky to play a gig, and I was able to claim all of that gas and expenses for that trip. It's not like at a regular job where you get paid mileage or anything like that, so I have to save all my receipts and everything. But I'm able to claim stuff on my taxes that I need to perform music," Priest said.

BMI offers a program called 'BMI Live' that enables songwriters to input up to six months of their live performances from any size venue; this will then be processed for quarterly royalty payments to be distributed to the songwriters.

U.S. copyright law defines a public performance as "any music played outside a normal circle of friends and family that occurs in any public place." This extends to any music played over the radio or televisions within a public place. Songwriters, composers and music publishers hold the exclusive right to play their music publicly. This is known as a "performing right" and was created to ensure that creators are fairly compensated for their music.

For local businesses, that means that if they choose to play copyrighted music, they must purchase the rights for that music. However, that does not extend to live performers, but rather the business that is benefiting from the performance. While state governments are generally protected from copyright infringement laws, the federal government, along with local municipalities, can be sued even when operating on behalf of the state, and are required to purchase licenses for any music played at their facilities or events.

"If you play music in your establishment, there is a need for a music license — no different than any other license needed to operate a business. Under federal copyright law, when copyrighted music is performed in any establishment, whether on TV, radio, recorded, streamed, on a jukebox or performed by a live band, DJ or karaoke, the business owner must obtain permission from the copyright owner. In most cases, that permission comes in the form of a music license, saving business owners a tremendous amount of time and expense of contacting each songwriter, composer, or publisher to play their music publicly," Thomas said.

PROs effectively act as a middle man between establishments and music creators, offering "blanket licenses" to legally play any song in their catalog and distribute the license fees between their registered artists. BMI operates as a nonprofit, retaining enough revenue to cover operating expenses, at about 12%, and said that roughly 90 cents from every dollar collected is paid quarterly to artists. Thomas said that BMI uses an algorithm which factors in the size of an establishment, the type of music played (recorded or live performances) as well as the occupancy rate which is determined by a third party such as a local fire marshall.

For example, Karma's Coffee House estimates its annual licensing fee is about $350, while Goat Island Brewing said that they pay for both a BMI and an ASCAP license for a combined estimated total of $1,200.

Cullman City Parks, Recreation & Sports Tourism pays approximately $2,000 for a yearly subscription to Broadcast Music, Inc. (BMI), Society of European Stage Authors and Composers (SESAC), Global Music Group (GMG), and the American Society of Composers, Authors, and Publishers (ASCAP).

Purchasing a license from one PRO does not protect an establishment from playing music filed with another PRO, and songs by an artist falling under the umbrella of one PRO does not necessarily mean that all songs in their catalog fall under that single organization. On their websites, BMI and ASCAP have created the 'Songview' digital library to provide the public with a comprehensive view of ownership shares for the more than 20 million songs in their combined repertoires.

The failure to obtain a license can result in legal action such as the lawsuit against Moe's. A 2015 lawsuit filed against Amici III Ristorante — a New Jersey restaurant — resulted in the establishment repaying a sum of $6,000 per song for the four songs listed in the claim (the lawsuit against Moe's lists nine songs). But BMI says that legal action is used only as a last resort and would much rather educate business owners about the value that music brings to their establishment, the requirements of copyright law and the importance of securing a music license.

According to Thomas, BMI "only takes legal action as the very last resort. It is why we spend so much time educating business owners about the value music brings to their establishment, the requirements of copyright law, and the importance of maintaining a music license. Most business owners, however, obtain a music license because they recognize the value music brings and the ambiance it creates for their customers."

"In this particular instance, we reached out to the owners of this Moe's BBQ location approximately 70 times since August 2018. They continue to feature music multiple times a week, including recorded and live music. At a certain point, we need to take the next step because songwriters entrust their copyrights to BMI and rely on us to ensure they are compensated when their music is played publicly. We always hope to resolve any issues before it comes to a lawsuit," Thomas said.

Messages left for the owners at Moe's BBQ were not returned by deadline.

The Cullman Times submitted public records requests to gain annual licensing fees for Cullman County Parks and Recreation, but has not yet received that information.