One of the most confusing aspects of music licensing is the “public performance” part. So many licensees (even coming from radio, TV, film and movie production) do not fully understand the meaning of this term. This blog posts contains all the information you need to know about public performance in music. Let us start with the most basic definition, according to this page.
The legal definition means that music; as a copyrighted work has “public performance right” because it is mandated by law.
This means that if a copyrighted music is used other than the author, any user has to obtain the so-called “public performance” license.
Most common example of music public performance
a. Radio broadcasting (music you hear in FM radio stations as well as in the college, amateur and AM radio stations are public performance of music) – in this case, the owner of these radio stations need to secure public performance license.
b. TV broadcasting – when you hear music in TV shows series, advertisements and programs. This is another example of public performance.
The owners of these TV stations would be paying public performance fees to the copyright owners.
c. Music in films – when you hear music in films shown in movie theaters; this is another public performance of music.
Public performance is just one of the music rights in film.
Film camera
d. Music you hear in the malls, restaurants and companies – do you know that music in a restaurant, bars, malls has positive impact on customer experience and eventually can be a strong factor in sales? In this case, these business owners should be paying public performance licensing fee as well.
e. Music in the internet– yes, even YouTube by definition of public performance needs to secure a public performance license. You Tube makes money by ads from the video which can contain copyrighted music.
YouTube requires that you have permission to use the music or give attribution to the original author of the music. As you have noticed, a lot of videos using copyrighted music are disabled from YouTube because of this non-compliance.
Confusing aspects of public performance in TV/Film
There are lots of questions in this sector pertaining to public performance. Before a film or TV show can be released, it undergoes two major sectors in the industry namely:
a. A production company whose main job is to produce and direct films, movies or shows. Example of these professionals are TV/film directors, music directors, etc.
b. The actual broadcasting company whose main job is to broadcast or publicly perform the produced works. Example are the TV stations, movie theatres, etc.
In some broadcasting company, sometimes they have in-house production company. But below are some important rules when it comes to licensing music for public performance:
1.) Only the broadcasting company is required to get a public performance license because they are the ones making money from the public performance.
2.) Production companies making the shows (producers, directors, engineers) should never secure a public performance license. They are not using that music right in their projects. Instead they utilize other music rights such as sync, master recording or even mechanical rights of the music; but never the public performance right.
Common public performance right societies such as ASCAP, BMI, etc. require production companies to submit cue sheets.
Don’t confuse submitting cue sheets with paying royalties! You only submit cue sheets to inform these societies of copyrighted music you are using in your projects. But as a production company, you will never publicly perform the music, so you are not the one paying the license fees.
Cue sheet will be used by these societies to efficiently collect royalties from different broadcasting companies based from the input of production companies (as they are the ones supplying the work for broadcasting). Help the songwriters and music publishers of the songs you are using in your film/TV projects by submitting a cue sheet.
Different Scenario of Public Performance- FAQ
I received this inquiry from a reader:
I support the license for public performance of music. Any establishment that has live music performed for the enjoyment of their guests should pay for a license. The question is, what is considered a public performance?…
A family or soccer team rents the party room in a pizza place and they start to sing copyrighted songs, is that a violation? One may argue that it is in the public and it is a performance but it is not for public consumption. Its in a private room. What do you think? A youth group goes camping to a state park that is open to the public and begin to sing around the campfire copyrighted songs. Is that a violation? It is in the public and they are singing, is that considered a public performance?
Is the intent of the law to prevent anyone from singing copyrighted songs? Does a mother singing to her child a copyrighted song while shopping in violation.
A Senior Center hosts a group meeting for their members to come and sing songs together. If they sing copyrighted songs are they in violation? There is not an audience here to perform to just a group of friends gathered together to sing an enjoy each others’ company.
So the question is “What is a Public Performance”? Thanks for your help and providing a website with great information.
Answer: First it is important to know the official definition of “public performance”. ASCAP defines it this way:
“A public performance is one that occurs either in a public place or any place where people gather (other than a small circle of a family or its social acquaintances.) A public performance is also one that is transmitted to the public; for example, radio or television broadcasts, music-on-hold, cable television, and by the internet.”
Another that needs to be defined is what constitutes a “public place”? The definition of public place is that it is “generally an indoor or outdoor area, whether privately or publicly owned, to which the public have access by right or by invitation, expressed or implied, whether by payment of money or not, but not a place when used exclusively by one or more individuals for a private gathering or other personal purpose. ”
Source: uslegal.com
1.) A family or soccer team rents the party room in a pizza place and they start to sing copyrighted songs, is that a violation?
The gathering does not fall to public place definition because the place is used exclusively by family or soccer team members only. There is no public performance violation.
2.) A youth group goes camping to a state park that is open to the public and begin to sing around the campfire copyrighted songs. Is that a violation? It is in the public and they are singing, is that considered a public performance?
If the youth group objective is not for profit, then why should they pay public performance royalties anyway. This is in opposite to big concerts comprising different artists covering a lot of songs that they don’t write and earning million of dollars in ticket sales. It make sense the concert organizer should be paying back to the original songwriters isn’t it?
3.) Is the intent of the law to prevent anyone from singing copyrighted songs? Does a mother singing to her child a copyrighted song while shopping in violation.
Not at all, mother is singing to her child only, the use is personal.
4.) A Senior Center hosts a group meeting for their members to come and sing songs together. If they sing copyrighted songs are they in violation? There is not an audience here to perform to just a group of friends gathered together to sing an enjoy each others’ company.
It is an exclusive/private gathering so public performance rules will not apply. I hope I clarify everything about what is “public performance”. So if you understood it correctly, it is why:
a.) Commercial radio stations should pay performance royalties to authors of the music because they are profiting from the use of music in their radio stations.
b.) Same thing with TV stations, cable TV, websites, malls, restaurants and any other public place like concert venues.
I received another reaction from a reader, see below:
1.) What if the campsite was at a private campground, like lets say a Girl Scout Camp. Can the campers then sing copyrighted songs? I think that would be okay because it is a private location. But then I wonder if they put on a program for their parents and other non-campers, that then would be a public performance, is that right?
Answer:
Let’s go back to the definition of public place. Now they are in Girl Scout camp (a private location as you said), but public can still access the program by invitation or by tickets. Thus the gathering is not considered private; UNLESS if they restrict public access and send invitations to the parents only, but not the entire public. This makes the gathering private since specific persons can only attend and not anyone. Singing songs in private gathering does not need to secure a public performance license.
One thing you should realize are the motives of the public performance. Is that performance for profit or simply for pleasure/personal use?
The Girl Scout motive is obvious not for profit, so commercial context of public performance NOT applicable.
2.) How about an educational music camp? As I understand it, a face-to-face instruction is okay, but at the end of the week the students put on a show to the public, that would not be okay, is that right?
Answer:
Again, check the real motive of the use of music. If you say educational music camp, I assume it’s for non-profit use only; so the commercial context of public performance is not applicable. The organizers should never be liable to pay for public performance licensing fee.
Disclaimer: Don’t take the word in this article as legal advice, instead hire an entertainment lawyer for this reason.
Content last updated on July 25, 2012