Ohio Beer Counsel
Information and Commentary on the Issues Facing Ohio's Craft Beer Community, Breweries and Distilleries - Brewed by the Craft Beer Lawyers of Bruns, Connell, Vollmar & Armstrong's Brewery & Distillery Practice Group
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Time, Love, Tenderness and Copyrights.

The heavy lifting is done.  You're ready for customers to come and enjoy the fruits of your craft brewery labor.  Except one thing is missing.   The music.  You need the jams pumping before your taproom is complete.  I think we can all agree that a hoppy double I.P.A. goes next level when paired with the dulcet tones of, say, Michael Bolton.  Easy enough.  You just happen to have a murderer’s row of Bolton’s powerhouse ballads on your phone.  In fact, you celebrate his entire catalogue.  You also have a PA system to which you can hook that phone up to and get things swingin’.  So you do just that and before you know it, your customers have joined together in a predictably spirited singalong of “Time, Love and Tenderness.”  You’re good to go, right? 

WRONG.

This would constitute an unauthorized performance of copyrighted music, which, in turn, constitutes infringement of copyrighted music in violation of United States law.  If you are caught doing this, your brand new craft brewery can be held liable for damages from a minimum of $750 up to a maximum of $150,000 per song!  Oooof!

With respect to applicable law, a “performance” includes anytime copyrighted music is performed, played, broadcasted or otherwise communicated to the public.  So, your seemingly harmless broadcast of beautiful Bolton ballads constitutes a “performance” for purposes of the applicable law.  In order for these “performances” to be authorized, and therefore compliant with the law, you need advance permission from the copyright owner or their representative.

This is where music licensing comes in.  Generally, permission is obtained through a licensing arrangement with the copyright holder's respective performing rights organization (“PRO”).  A PRO is an association, corporation, or other entity that licenses the public performance of non-dramatic musical works on behalf of copyright owners of such works.  For our purposes here, the three most significant PROs are BMI, ASCAP and SESAC.  These are three separate and distinct PROs, each representing different copyright holders and only able to offer licenses to the copyrighted works of its own respective copyright holders.  A license with one PRO does not grant permission to play songs in another PRO's repertory.  Accordingly, it is not uncommon for businesses to obtain licenses from all three of these PROs.  If you play music licensed by a PRO you do not have a license from, you can be liable for copyright infringement.

Licensing fees can be significant.*  However, considering the potential penalties of playing unlicensed music, the fees are a necessary cost if you want to play music in your brewery. Annual rates depend on the type of business, hours of operation, the manner which the music is performed (live, recorded and audio only or audio/visual) and the size of the establishment or potential audience for the music.  

One alternative to obtaining individual licenses from all three PROs is Pandora for Business. Pandora for Business allows you to play music from your Pandora account in your brewery. You still need licenses to play the copyrighted materials on Pandora, but with Pandora for Business the licensing issues are taken care of.  Essentially, the licensing agreements are still in place, but instead of those agreements being between you and the PROs, they are between Pandora and the PROs.  In any event, you and your brewery are covered with respect to the above discussed licensing issues.  It may be the cheaper route as well.**

Don't let your undying love for Bolton become your brewery's undoing.  Make sure you have the appropriate measures in place to play the music you desire without infringing upon copyrighted materials. 

Call OBC with questions.

 

*To get some idea of the cost, I spoke with a representative of one of the above mentioned PROs and was told the minimum annual cost in 2016 is $363 without any discounts.  This is an estimate for a smaller business with background music.  The cost goes up as the size of the business increases and add additional types of performances (live, DJ, Karaoke, etc.).  Again, this is a cost estimate of one of the PROs.  You would need to have agreements in place with all three to be comprehensively covered.

**The website states Pandora for Business is $26.95/mo. + $99.00 for the Mood Media player.