Generally, if any business wishes to perform a musical composition publicly, it must obtain a license from the copyright owner. A Performance Rights Organization helps songwriters and music publishers receive compensation for the usage of their music, which includes live performance in venues. There are three main entities – SESAC, BMI, and ASCAP.
Usually the issue of music licensing comes up when a long term care facility is contacted by a PRO’s representative. These representatives send letters or make calls notifying the businesses of their potential infringement, advising of the potential damages if the business is found to be violating U.S. copyright law, and demanding the business sign and pay for an applicable licensing agreement. Just because one PRO has asked you for a music licensing agreement does not necessarily mean the others will as well.
The most common types of music uses by long term care facilities that are generally licensable include live band/artist or DJ performances; CDs, digital music/video files, and/or streaming services via iPhone, iPod, or other comparable devices; background music (such as elevator music or music on hold over telephones);7 broadcast radio music over loudspeakers; therapy sessions or aerobic/dance/fitness classes; and large screen or multiple televisions with the sound on (where the music used in commercials or television shows is licensable). There is no question that each of the above music uses constitutes a “performance” under U.S. copyright law.8 It must satisfy the requirement of occurring at either 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.”
While the “open to the public” test can be debated, it is much more difficult to establish what is considered a “substantial number of persons” and what is “outside of a normal circle of a family and its social acquaintances” for an area to qualify as truly private for purposes of copyright law. It is well-founded that if music is performed in a resident’s room, it would be done so privately and escape the licensing requirements under the Copyright Act. However, most facilities offer social service events organized as part of resident activities. Many, if not most, involve the playing of recorded music (or often live music performances). Most are held in “common areas” within the facility such as dining areas, conference rooms, or activity halls. Most such events likely involve what would be deemed a “substantial” number of people, and could include individuals “outside of a normal circle of family and its social acquaintances” of a particular resident. In those cases, when music is performed or played, there is a good argument that it would occur in such a way as to be a “public performance” under the Copyright Act.
Social activities of long term care facilities are often the areas scrutinized by music licensing agents and ones that trigger licensing requirements. If a business publicly performs licensed musical works, there are some limited exceptions to the requirement to obtain a license. The “business” exemption is limited to broadcast radio or television performances, and it does not cover public performances of live music or playing music from any other source (including transmission through digital service providers such as Spotify, Apple Music, Pandora, and the like). Allowing publicly performed live music would still subject a long term care facility to music licensing requirements.