Many owners of stores and restaurants feel that playing music in the background boosts their business by welcoming customers and making them feel comfortable. They may not be aware that many works of music are subject to copyright protection. In theory, they could be sued for copyright infringement if they play music in a store. This is because one of the exclusive rights provided by Section 106 of the Copyright Act is the right to control public performances of the copyrighted work. Playing a song in a store is a type of public performance. You might think that nobody would ever know the difference, but there are three performing rights organizations (BMI, ASCAP, and SESAC) that monitor infringements of this right and collect payments for public performances of copyrighted music.
One way to address this issue is to pay for an annual license. If your store is larger than 2,000 square feet, or if your restaurant is larger than 3,750 square feet, you can get licenses from the performing rights organizations. This will cost about $500 per year, not including any additional fees if you host live music performances. Fees for live performances may cost about $35 per performance. If you are running a café inside your store, you may need to pay separate fees if you are playing live or recorded music in the café.
Working Around License Fees
Store and restaurant owners often feel reluctant to pay hundreds of dollars in annual fees. You may be able to play classical music that was composed before the modern era, since that music has entered the public domain. (Read more here about when a copyrighted work loses protection.) Also, some music has been specifically recorded for use outside the copyright system, which means that licenses and royalties do not apply. You can explore the pdinfo.com website to find royalty-free music, or you can investigate commercial music services. Another option involves playing music on the radio, for which you may not need to pay a fee if you are using six or fewer speakers. You cannot have more than four speakers in any single space.
Sometimes people who work for a store or restaurant compose their own music. You can play original music for no cost if you have the permission of the copyright owner, who would be the composer in this situation. Or you can arrange for live performances without a fee if the band plays their own music and does not charge you additional fees for the performance right.
If you feel that you need to pay license fees, you may be able to reduce the amount of the fee by avoiding playing music by SESAC artists. This music accounts for only a tiny fraction of the music that is performed (about 1 percent), so you should be able to work around the SESAC license fee if needed.
Exemption for Music Stores
If your business consists of selling recorded music, you likely will be exempt from the annual license fees. This exemption covers any performances that are meant to promote the retail sale of copies or records of the copyrighted work, as long as the performances occur in the immediate area of the sale. If you are playing music that you are not selling, though, the exemption does not apply.
The exemption may not fully protect you if only part of your business consists of selling recorded music. You probably cannot play recorded music in parts of your store where it is not being sold. This is based on the requirement that the performance must occur in the “immediate area” of the sale. Playing music on a different floor or in a different wing of the store will not qualify for the exemption.