Playing Music in Your Store: How to Avoid Paying for It!

You must often pay fees for playing recorded music, although there are a number of helpful exceptions.

By , Attorney · University of San Francisco School of Law

Imagine that you own a small store or cafe. You want some tunes playing in the background while the customers shop, setting a friendly and welcoming tone. But if you play a song by Lady Gaga in your store and you haven't got Ms. Gaga's permission, you are probably violating copyright law. Why?

Copyright law gives copyright holders certain exclusive rights. The owner of a song's copyright controls the right to make public performances of that song. Playing a record in your store is considered a public performance.

Is It Really Worth Paying for an Annual License?

You might wonder how a copyright owner would ever know that you're playing their song without permission. Most popular songwriters has assigned the job of collecting payments for public performance to a performing rights society—usually BMI, ASCAP, or SESAC. These organizations have representatives who scour retail establishments, find businesses that are playing recorded or live music, and then demand that these businesses enter into a license.

The owner of a store that is more than 2,000 square feet (or any food service or drinking establishment with more than 3,750 square feet) will pay approximately $500 a year to the three primary performing rights organizations. If your store has live performances, assume you will have to pay an additional annual fee plus a per-performance fee of at least $35 per performance. If your store has a café, you may be required to pay a different rate for music played in the café area.

How Can You Avoid Paying These Fees?

Many small businesses make seek to avoid paying these sorts of licensing fees. Here are five suggestions that will allow you to play music without the costs:

  • Play the radio. If your store area is smaller than 2,000 square feet, you can play the radio or television as a source of music and avoid all fees. If your store is more than 2,000 square feet and you are playing the radio or television with six or fewer speakers (and with no more than four speakers in any one room), you are also exempt from paying fees.
  • Play classical music. You have to pay only performance fees for compositions written after 1922, since prior music has fallen into the public domain. So you can play any music by Brahms, Beethoven, Mozart, Schumann, or any other composer who wrote music before 1922. For information on what music is in the public domain, check out the website.
  • Play copyright-free music. In addition to public domain recordings, there is a large collection of recorded music that is designed specifically to bypass the public performance fees. This music is also often used by filmmakers who can't afford hefty license fees. You will be amazed at the variety of recordings. Again, check out the royalty-free music links at the website. Note there are also commercial music services that supply license free music to retail establishments.
  • Play original music. If you've got talented musicians on staff, perhaps you can commission musical compositions for your store. As long as you have the permission of the composer, you don't have to pay a performing rights society. Similarly, you can save on live music fees by hiring bands that perform original compositions and who agree to waive performing rights fees.
  • Sell recorded music. If you are an establishment selling recorded music as well as other products, you don't have to pay a fee for playing prerecorded music, provided that "the sole purpose of the performance is to promote the retail sale of copies or phonorecords of the work" and the music is played "within the immediate area where the sale is occurring." For record stores, this exemption works well, but it's a little trickier for other stores selling recorded music. If you have a store with two floors, for example, and recordings are sold only on the top floor, then the exemption probably won't extend to the ground floor. Similarly, if you only sell a small number of CDs but you're playing from a wide collection of music (much of which is not for sale), the exemption will not work.
  • Cut out a performing rights society. There are three performing rights organizations, but one, SESAC, accounts for only 1% of all performing-rights revenue. If you can avoid playing SESAC artists (and you can find a list of them at SESAC's website) then you can avoid paying the SESAC fees.

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