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Nicholas Rubright

Similarly to authors of books, songs are protected under copyright law to protect the songwriters. Because of this, it is generally illegal to play music in a public place without obtaining a license for the musical works. Many business owners are unaware of this, and don’t know that they need to pay a license to play music, or don’t know how to play music legally in their business.

Below are some commonly asked questions about using music in a business setting that can hopefully act as a guide for legally using music in your business, put together with help from Los Angeles music lawyer Jesse E. Morris, Esq.

Note: This article includes affiliate links where the author may receive a commission.

Who are BMI, ASCAP, and SESAC?

BMI, ASCAP, and SESAC are known as the Performance Rights Organizations (“PROs”) that represent songwriters and music publishers in the United States. They act as the intermediary between songwriters and music users such as restaurants, retail stores, and music streaming services like Dozmia to protect intellectual property and make licensing music more convenient. They offer blanket licenses to businesses that need the rights to publicly use music. Businesses pay a fee to BMI, ASCAP, and/or SESAC to obtain public performance rights, and can use music owned by any of the songwriters and publishers they represent.

If you play music licensed by one of these organizations, and don’t have a license from them, you can potentially be held liable for copyright infringement, which can result in thousands of dollars of liability as well as costly legal fees.

There’s also a 4th PRO that you may need to pay licensing fees to called Global Music Rights. This PRO is relatively new, and is the smallest of the four, but they do control the rights to some of the songs you may play in your business, and may be worth taking a look at. You can search the songs they represent on their website.

If I pay BMI, do I also need to pay ASCAP and SESAC?

Not always. It’s important to realize that the PROs represent songwriters, not necessarily the songs themselves, so you only need to pay the PROs that represent the writers of the songs you’re using in your business. Unfortunately, most songs have multiple songwriters. For example, “Don’t Wake Me Up” by Chris Brown has 11 songwriters, some of which are represented by BMI, some by ASCAP, and some by foreign PROs, as you can see below.

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If you’re using more popular music in your business, it’s likely that you will need to pay all three of the PROs.

In the above image, you may notice two additional organizations in the “Current Affiliation” column, SIAE and PRS. These are foreign performance rights organizations. There is no need to pay foreign PROs for the rights to use music in your restaurant here in the United States because BMI, ASCAP, and SESAC have reciprocal agreements with these organizations and transfer any applicable royalties to them.

The safe and easy way is to just pay all three of the PROs, but if you want to see what songwriters are represented by each of them, you can check their databases here (for BMI), here (for ASCAP), and here (for SESAC). If your entire playlist consists of songs only written by BMI songwriters, you only have to pay licensing fees to BMI.

You also have the option to work directly with songwriters and publishers, in which case you can license the music directly from them and avoid paying the PROs altogether. Before considering this, however, I’d recommend you speak with a music attorney. Jesse E. Morris, Esq., of Morris Music Law is the music lawyer who helped us get our music licensing straightened out, and I’d highly recommend him. Another option is to avoid all of the legal complications by signing up for a service that offers music streaming for business.

Are there any circumstances where I don’t have to pay a licensing fee to the PROs?

If you’re using music recordings that you own from a smartphone, CD, or streaming over the Internet, unless the provider covers licensing fees for you, then you generally have to pay to use music in your business. However, section 110 (5)(B) of the Copyright Act contains exceptions for businesses playing music over the radio or using a TV if you don’t charge customers to hear the music.

Generally, if your business is not a “food service or drinking establishment” and has less than 2,000 gross square feet of space or is a “food service or drinking establishment” and has less than 3,750 square feet in space, you don’t need to pay to use music.

If your business is larger than the above limits, to use a TV (with stations licensed by the FCC) or radio, and your business includes ONE of the following, you need to pay to use music:

For TV:

  • More than 4 TV’s.
  • More than 1 TV in any one room.
  • Any of the TV’s is larger than 55” when measured diagonally.
  • If the audio is connected to:
    • More than 6 total loudspeakers.
    • More than 4 loudspeakers in any one room or connected outdoor space.
    • If there is any direct charge.
    • The transmission or retransmission is further transmitted beyond your establishment.

For Radio:

  • More than 6 total loudspeakers.
  • More than 4 loudspeakers are in any one room or connected outdoor space.
  • If there is any direct charge.
  • The transmission or retransmission is further transmitted beyond your establishment.

Another exception is in section 110 (5)(A) of the Copyright Act, which allows transmission of music via “a single receiving apparatus of a kind commonly used in private homes.” This exemption only applies if no direct charge is made to see or hear the transmission and the transmission, once received, is not further transmitted to the public.

Do I have to pay to play music for employees?

Aside from the exemptions mentioned above, you generally only need a license to use music if it’s publicly performed. However, if your customers can hear the music, the PROs could argue that the public is receiving the transmission, and that licensing obligations apply. The safe option in this case is to pay for the licenses.

Do I have to pay a license for live performances in my business?

Unless the performers only play their own songs, yes, to have live music in your business, you need the appropriate licenses from the PROs. In the case of live music, it may be in your best interest to get licenses from all the PROs, as many musicians perform songs written by other songwriters.

You may also need a permit depending on where your business is located. In Los Angeles, for example, café’s need a permit for any live entertainment performances.

Do I have to pay artists to perform in my business?

While you aren’t legally required to pay musicians for live performances, it’s a good idea to. More established musicians look down upon venues that don’t pay for performances, so not paying lesser-known musicians for live performances can make it harder to book bigger artists later on. Additionally, your customers may think less of you if they find out you aren’t paying musicians for their performances. Paying performing musicians a small fixed amount or a percentage of sales that night can help you maintain a positive reputation among the music community.

My background music provider pays licensing fees already. Do I need a separate license for live music?

Yes. If you’re using a background music provider that includes licensing for the music, you still need to pay BMI, ASCAP, and SESAC for live performances, unless your background music provider can also provide licensing for this.

What if I play copyright free music?

If you use copyright free music, you don’t have to pay licensing fees, but be sure to check the Copyright Office, BMI, ASCAP, and SESAC’s databases to be sure the music really is copyright free or in public domain.

Can I use Pandora or Spotify in my business?

Music streaming services that are intended for consumer use, such as Pandora or Spotify, typically prohibit commercial use of their product, as per their terms of use. This is generally to protect them from any liabilities from the PROs. If you want to use a streaming service for your business, check the terms of use to see if they allow for this.

Even if you do use a consumer music streaming service, you’ll still have to pay licensing fees to use music in your business. Additionally, if you want to get rid of the ads that interrupt the music, you’ll need to pay for a premium subscription on most services. It might be more cost effective to subscribe to a music streaming service for business use.

Do I have to pay for licenses even if I bought the music or if I’m paying for a music streaming service?

Yes. Purchasing music downloads or a music streaming subscription gives you the rights to listen privately. Once you play the music in your business, it generally becomes a public performance and needs to be licensed. Keep in mind, the exemptions above apply only to radio and TV, not Internet streaming or playing music downloads.

Are licenses negotiable?

Yes, but it can be hard to get a different price on the licenses unless you have something to offer in return. If you want to pay less in licensing fees, it might be best to take the time to make a playlist of songs whose writers are all represented by only one of the PROs.

How do I actually get the licenses to play music in my business?

You can find the appropriate forms on the PROs websites.

Do I have to pay for a license to use really old music in my business?

Yes, unless the music is no longer protected by copyright law and is in public domain, you need a license. If you think a song may be in public domain, you can search the PROs databases here (for BMI), here (for ASCAP), and here (for SESAC). Additionally, you can search the Copyright Office directly to identify the owners/writers of specific songs.

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