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.Â 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.