Do You Need Both ASCAP and BMI?
The short answer is generally no. Do you need both ASCAP and BMI? It depends on the specific catalog of music being performed; most music users will only need licenses from one or the other (or, more rarely, both) to legally play music in their business.
Understanding Performance Rights Organizations (PROs)
Performance Rights Organizations, or PROs, play a vital role in the music industry. They act as intermediaries between copyright holders (songwriters and publishers) and music users (businesses that publicly perform music). The primary function of PROs is to collect performance royalties for public performances of copyrighted songs. This includes radio broadcasts, streaming services, live performances, and music played in businesses like restaurants, bars, and stores.
Here’s a breakdown of what PROs do:
- Represent Copyright Holders: They represent the performance rights of songwriters and publishers.
- License Music Use: They grant licenses to businesses and organizations that want to publicly perform music.
- Collect Royalties: They collect royalties from music users based on their licensing agreements.
- Distribute Royalties: They distribute the collected royalties to their songwriter and publisher members.
In the United States, the two largest and most well-known PROs are ASCAP (American Society of Composers, Authors and Publishers) and BMI (Broadcast Music, Inc.). SESAC (Society of European Stage Authors and Composers) is another significant PRO, and GMR (Global Music Rights) is a more recent entrant to the field.
ASCAP vs. BMI: Key Differences
While both ASCAP and BMI perform similar functions, there are some key distinctions:
- Membership Structure: Both are member-owned, but their historical roots and membership demographics differ slightly.
- Catalogs: Each PRO represents a unique catalog of songs. One PRO might represent a songwriter, while the other represents the publisher of the same song.
- Licensing Fees: Licensing fees can vary depending on factors such as the size of the business, the type of music use, and the PRO’s rate structures.
- Governing Structure: Minor differences in the governance structure of the organizations exist.
The table below summarizes the key differences:
| Feature | ASCAP | BMI |
|---|---|---|
| Ownership | Member-owned (Songwriters & Publishers) | Member-owned (Songwriters & Publishers) |
| Catalog Overlap | Minimal (but possible) | Minimal (but possible) |
| Establishment | 1914 | 1939 |
Determining Your Licensing Needs: Do You Need Both ASCAP and BMI?
The core question is: Do you need both ASCAP and BMI? The answer depends entirely on the specific songs you intend to play. If you only play music from ASCAP’s catalog, you only need an ASCAP license. If you only play music from BMI’s catalog, you only need a BMI license.
Here’s a step-by-step guide to determining your licensing needs:
- Identify Your Music Repertoire: Create a list of the songs you play most frequently in your business. Include the song titles and artists.
- Check PRO Affiliations: Use the PRO’s online repertory search tools to determine which PRO represents the performing rights for each song. (ASCAP’s ACE database and BMI’s repertoire search). Note: Copyright ownership can be complex, and songs can be co-written by members of different PROs.
- Assess Overlap: Analyze your list. If all the songs you play are in one PRO’s catalog, you only need a license from that PRO. If you play songs from both ASCAP and BMI, you likely need licenses from both. However, the extent of overlap is key.
- Consider All Sources: Account for all sources of music in your business, including streamed music, CDs, live performances, and radio broadcasts.
Navigating Potential Overlap and Alternatives
Even if there is some overlap between the catalogs you need, it might not always be necessary to obtain licenses from both ASCAP and BMI. Here are some considerations:
- “Blanket” Licenses: ASCAP and BMI offer blanket licenses, which allow you to play any song in their respective catalogs. However, if a large portion of your music usage comes from only one PRO, paying for a blanket license from the other PRO may not be cost-effective.
- Exemptions: Certain types of music uses may be exempt from licensing requirements. These exemptions are outlined in copyright law.
- Alternative Music Sources: Consider using royalty-free music services or music from smaller PROs or rights holders.
- Negotiated Agreements: In some cases, it may be possible to negotiate directly with rights holders for specific songs.
Common Mistakes and Pitfalls
- Assuming One License Covers Everything: A common mistake is to assume that one license covers all music performances. This is not the case.
- Ignoring the Law: Publicly performing copyrighted music without the proper licenses is a violation of copyright law and can result in legal penalties.
- Failing to Track Music Usage: Businesses should track the music they play to accurately determine their licensing needs.
- Neglecting Smaller PROs: Don’t overlook other PROs like SESAC and GMR, as they may represent some of the music you use.
The Cost of Non-Compliance
Performing copyrighted music without the necessary licenses can lead to serious consequences:
- Copyright Infringement Lawsuits: Copyright holders can sue businesses for copyright infringement.
- Statutory Damages: Courts can award statutory damages, which can be substantial.
- Injunctions: Courts can issue injunctions to prevent further unauthorized music performances.
- Reputational Damage: Copyright infringement can damage a business’s reputation.
Frequently Asked Questions (FAQs)
What exactly is a public performance of music?
A public performance of music is defined as any performance that occurs in a place open to the public or where a substantial number of people outside of a normal circle of family and social acquaintances are gathered. This includes playing music in a business, broadcasting music over the radio, streaming music online, and performing music live at a concert.
How are royalties calculated?
Royalties are calculated based on a variety of factors, including the type of music use, the size of the business, the duration of the music performance, and the PRO’s rate structure. Different PROs may have slightly different formulas, but the overarching goal is to compensate copyright holders fairly for the use of their music.
Can I avoid paying performance royalties by playing music quietly?
No. The volume at which the music is played does not impact the licensing requirement. Any public performance of copyrighted music, regardless of the volume, requires the appropriate licenses.
What if I only play music from independent artists?
Even if you only play music from independent artists, you still need to ensure that you have the appropriate licenses. Many independent artists affiliate with PROs to manage their performance rights. If the artists are not affiliated with a PRO and you have their direct permission, document that permission in writing.
Are there exemptions for religious organizations?
Yes, there are certain exemptions for religious organizations, particularly concerning the performance of music during religious services. However, these exemptions are specific and may not apply to all music uses within a religious organization.
How do I find out if an artist is a member of ASCAP or BMI?
You can use the online repertory search tools provided by ASCAP and BMI (ACE and BMI Repertoire Search, respectively). These tools allow you to search for songs and artists and determine which PRO represents the performing rights.
If I play music from a CD or streaming service, am I already covered?
The purchase of a CD or subscription to a streaming service does not cover the right to publicly perform the music. These purchases grant you the right to listen to the music privately, but not to play it in a public setting.
What happens if I get caught playing music without a license?
If you are caught playing music without a license, you could face a copyright infringement lawsuit. This could result in financial penalties, including statutory damages and legal fees.
Are there any alternatives to ASCAP and BMI licenses?
Yes, there are several alternatives, including:
- Royalty-free music services: These services offer music that is licensed for commercial use.
- Direct licensing: You can negotiate directly with copyright holders.
- Smaller PROs: SESAC and GMR represent a significant catalog of music.
Does playing the radio in my business require a license?
Yes, even playing the radio in your business requires a public performance license. ASCAP and BMI offer licenses specifically for radio broadcasts.
What are the penalties for copyright infringement?
The penalties for copyright infringement can be significant. Copyright holders can sue for actual damages (lost profits) or statutory damages, which can range from $750 to $30,000 per song infringed, or up to $150,000 per song if the infringement is willful.
Do I need separate licenses for playing music on hold on my telephone system?
Yes, playing music on hold on your telephone system constitutes a public performance and requires the appropriate licenses. You will typically need licenses from ASCAP and BMI if the music is part of their catalog.