As I walk to Jazz Fest every year, I inevitably pass people who live near the fairgrounds having a party in their yard. It usually sparks a question in my mind of whether these near-Jazz Fest parties are violating copyright law. This year I decided to answer it in advance. And like most legal questions, the answer is: “It Depends!”
One of the trickiest channels to navigate when it comes to performing music (live or recorded) is the definition of “private” versus “public” performance. You do not need a license for a “private performance” of copyrighted music. Listening to a song on earbuds while you jog is a private performance. Blasting it on your car stereo counts as a private performance. But when does your private performance right cross the line into prohibited public performances?
Under US Copyright Law, to perform or display a work “publicly” means:
(1) to perform or display it 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; or
(2) to transmit or otherwise communicate a performance or display of the work to a place specified by clause (1) or to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times
I have emphasized the two big issues. Is the place of the performance ‘open to the public’ or is the place private but a ‘substantial’ number of people will hear it.
For example, a private party 15 people in your home is most likely a “private performance” as intended under U.S. Copyright Laws. However, a “private” party with 1,000 guests at a social club is probably a “public performance.” Whether admission fees are charged to get into the area where the performance will be heard is an important consideration as well. The court will analyze the location and the size and composition of the audience to determine if the performance is public. In general, for events held outside of a family home, the larger and more diverse the gathering, the more likely it is “public” under US Copyright Law.
For-Profit Businesses are nearly always in public.
When it comes to businesses, playing your private music collection over the sound system for customers is not a private performance. Some bar owners wrongly believe that they can avoid licensing fees if they hire a band to perform and cover songs live, rather than using recorded music. But copyright protects the underlying song as well as the sound recordings of the song. The song itself is intellectual property that belongs to songwriters and a music publishing company. The sound recording is intellectual property that belongs to the original artist. Under U.S. Copyright Laws, those people are entitled to be paid when the song is used.
Cover bands and DJs need licenses too.
Many professional cover bands have purchased licenses that allow them to perform that artist’s works publicly. If the band does not have a license that covers public performances of other artists’ works, however, the owner of the establishment that hosts their performance could be liable for the unauthorized public performance.
The same principle that applies to live bands applies to professional DJs. When a DJ is paid to play a music at a nightclub or even at a wedding, that performance must be licensed. As a practical matter, the license may be purchased by the DJ, the company or client that hired him, or the venue that hosts event.
If you or your event needs to license music, then you will need to contact one or both licensing groups. The American Society of Composers, Authors and Publishers (ASCAP) and Broadcast Music, Inc. (BMI) are two of the larger music license organizations representing artists.