Intellectual Property Law Knowledge Center

When is a “Private” Music Performance Actually Public?

April 23rd, 2015

When it comes to performing music, whether recorded and played or performed by a live band, one of the trickiest aspects to navigate for music copyrights is the definition of “private” versus “public” performance.

What constitutes a “private performance” is complex, and has been the basis of many court cases. It often is a matter of subjective judgment. In our opinion, a little common sense goes a long way.

You do not need a license for a “private performance” of copyrighted music.

When you download a song from iTunes®, the license that accompanies your personal copy of the song limits your “performance” rights in important ways. Specifically, it allows an infinite number of “private performances.” Listening to a song on earbuds while you jog is a private performance. Blasting it on your car stereo counts as a private performance (even if you have all the windows open, though bystanders may disagree). Beyond that, however, the legal issues can get a little complicated.

When enough people can hear the music being played, it becomes a public performance, and public performances require payment of additional licensing fees. But at what point is a performance no longer private?

How private is private?

A private party for, say, 10 people in your home clearly is a “private performance” as intended under U.S. Copyright Laws. A “private” party with 2,500 attendees at a country club, however, is distinctly less so, and in many situations, that kind of event could be subject to music licensing requirements. Whether admission fees are charged is an important consideration. If, for example, guests have to pay any kind of fee to attend the event, any recorded music that is playing is unlikely to be seen as a private performance in the eyes of the law.

When it comes to public establishments, playing your private music collection over the sound system for customers in your bar or restaurant clearly is not a private performance.

Some establishment owners wrongly believe that they can avoid licensing fees if they hire a band to perform popular songs live, rather than using recorded music. As we have noted before, however, copyright protects the underlying song as well as the sound recordings of the song. The song itself is intellectual property that belongs to songwriters and a music publishing company. The prior sound recording is intellectual property that belongs to the original artist.  Under U.S. Copyright Laws, those people are entitled to be paid when the song is used.

Cover bands and DJs need licenses, even for “private” parties.

Many professional cover bands – particularly so-called “tribute” bands that mimic the sound of a particular artist – have purchased licenses that allow them to perform that artist’s works publicly. If the band does not have a license that covers public performances of other artists’ works, however, the owner of the establishment that hosts their performance could be liable for the unauthorized public performance.

The same principle that applies to live bands applies to professional disc jockeys. When a DJ is paid to play a music collection at a nightclub or a wedding, that performance must be licensed. The applicable license may be purchased by the individual disc jockey, the company or client that employs him, or the venue that hosts the performance.

The American Society of Composers, Authors and Publishers (ASCAP) and Broadcast Music, Inc. (BMI) are two of the larger music license organizations representing artists.

 

8 Responses to “When is a “Private” Music Performance Actually Public?”

  1. john says:

    what about a private event with at least 100 and or a maximum of 300 people?

  2. Panitch Schwarze says:

    Under US Copyright Law, to perform or display a work “publicly” means:
    (1) to perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered; or
    (2) to transmit or otherwise communicate a performance or display of the work to a place specified by clause (1) or to the public, by means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times (emphasis added).

    How many persons constitutes a “substantial” number? This is decided on a case by case basis. It is possible for a performance to only a couple of people (such as a private limited showings at a movie theater) to be a “public” performance even when not “open to the public”. The court will analyze the location and the size and composition of the audience. A group of 10 or 20 persons at a private event outside the home may not be substantial enough to render a performance “public”. For a number larger than this, there is more likelihood it will be deemed “public”. In general, for events held outside of a family home, the larger and more diverse the gathering, the more likely it is “public” under US Copyright Law. Therefore, a performance rights license would be required.

  3. Jim says:

    I am doing a pilot presentation that will only be shown on my Google dropbox to companies that show interest. Is a license needed for that?

    • Panitch Schwarze says:

      A Google dropbox or similar forum to which you control access could constitute a public forum when you open it to outside entities. If you utilize someone else’s copyrighted works within that forum, a performance rights license would be required.

      If you have further questions, please reach out to Bridget Labutta at BLabutta@panitchlaw.com or 215-965-1388.

  4. Mark says:

    How about for a free event held within a company where only employees gather, maybe up to 200? I was actually searching for the same info being discussed here, but not for musical performance but for event decorations art, such as Monopoly game characters or characters from popular movies..

    • Panitch Schwarze says:

      Hi and thanks for your comment. Characters from popular games and movies are exactly the type of original and unique works that copyright laws are intended to protect. Also, those types of works are typically owned by big companies that make great efforts to protect their rights. We would caution against any use of characters from popular games and movies without a license or other permission from the copyright owner.

  5. Sharon Loveless says:

    Does a singer, songwriter performing in a bar or coffee house need a license to record the performance?

    • Panitch Schwarze says:

      If the singer/songwriter is performing her own original song in a coffee house, it shouldn’t be an issue.
      If the singer/songwriter is performing a cover of a song written by someone else, best practices would be to secure a mechanical license in order to record the performance and the option to distribute copies of it.
      Bridget H Labutta, Esq. | Panitch Schwarze Belisario & Nadel LLP | 215-965-1388

Leave a Reply

Email Disclaimer

Sending an email to our office does not create an attorney-client relationship, and none will be formed unless there is an expressed agreement between the firm and the client. Thus, we strongly advise against sending confidential or privileged information to us until you can establish such a relationship. Furthermore, we advise against sending privileged or confidential information through email at all, since we can in no way ensure the security of your email. In fact, neither this website nor the email system involved is encrypted, so you should not assume that your email is confidential. We cannot guarantee that someone else will not see it.

Do you agree to this Email Disclaimer?

I Agree I Do Not Agree