Total posts : 45366
Clearly one of the everlasting hot topics on this board is royalties. I’ve been doing this as a commercial broadcaster for 43 years. Part 15 for two. I own a record label, a music publishing company, am a member of ASCAP and now the RIAA. I belong to ASCAP to eventually, someday, maybe get 2 cents for my publishing, and the RIAA because I can, and because it lets me into the inner circle of all this BS. I have had a copyright lawyer on retainer for the past 14 years. I’m one of the few who sees this from all sides.
A large percentage of what is posted here is incorrect and based on rumors, legends, and wishful thinking.
First off, the FCC has nothing to do whatsoever with music rights or copyright. If you get caught broadcasting copyrighted music the FCC won’t give a rats ass. So don’t go getting all excited because you can’t find an FCC law stopping you doesn’t matter. Not any more than the FCC won’t persue you if you’re speeding. Check the copyright laws, dealt with by the copyright office, which are federal laws.
Second ALL music is copyrighted. You say you dug up a classical selection written in the 1800’s performed on a record by the New York Philharmonic and you’re playing it? Fine. You’re right. The SONG ITSELF is in the public domain. The PERFORMANCE of that song is NOT. So if you’re streaming Soundexchange is still going to need the royalties for the performer. The recording is most certainly NOT in the public domain. If the Beatles sang “Take Me Out To The Ball Game” the song IS in the public domain, but the PERFORMANCE is not. Guess what? Royalties are due to the Beatles or whatever group is representing their performances. Music (as in the song itself) is in the public domain if it predates 1922. The SONG. You are free to perform the song yourself with no royalties due. You are free to record that song and put it out on a CD and sell it, with no rights to pay to do so. But NOT any other, previously recorded performance of it. There are legally NO SOUND RECORDINGS that are public domain in the USA. Anyone who tells you different is wrong. Songs yes, recordings, no. Copyright law specifically explains that the way the laws all transpired back in the day, sound recordings did NOT pass to public domain, just the SONG itself. So, if YOU want to perform Beethovens 5th Symphony you’re welcome to do so with no royalties (assuming you’re using your own arrangement as someone elses later arrangement would have a new, current copyright). If YOU want to sing “Take Me Out to The Ballgame” on your radio show you can (as long as you’re singing the original verses — additional verses were added after 1922 and are NOT in the public domain). I can readily find many many different takes on what’s public domain and what’s not, and what you can do with it. My information comes from actual an actual lawyer who I talk to in real life, and is based on 43 years of experience. Bottom line is there is no recorded sound in the USA which is public domain. Period. It’s not open to discussion any more than if that red stoplight really applies to you as you approach it in your car. These rules are of course different in other countries. Creative Commons is of course a completely different matter. This is a new modern concept whereby artists and song writers (who still automatically have copyright protection when they write a song) place their work under Creative Commons. And yes, you may broadcast this. Of course if they do a cover song of an already copyrighted song — say they record “Rock Around The Clock” their PERFORMANCE may be in the Creative Commons but the SONG itself will not be, and you’d still owe BMI or ASCAP royalties for the use of that song. So if you want to go the creative commons route you need to know nothing you’re using is a cover of a copyrighted song. See http://www.pdinfo.com/copyright-law/public-domain-sound-recordings.php for brief information.
The concept that a Part 15 station doesn’t need to pay royalties is also bunk. The defense that people use Part 15 devices to play music to their car stereo, or in their house has nothing to do with it. The deciding factor is INTENT. If it’s your purpose to play the music on the air with the specific intention of the public being able to hear it, you owe royalties. In my case it’s pretty obvious that I want and encourage the public to listen. I expect to pay royalties. There is no “I’m not making money so I don’t have to pay” rule. Using recorded music as “bumper music” is also not allowed. Several sports organizations have been in trouble recently for using “bumper music” without licensing in their game broadcasts. Talk Host Art Bell just finished a rather lengthy battle trying to find a way to use his bumper music legally without paying huge fees (many listeners create bigger fees). ARt is due back on the air next month and has worked out the bumper music licensing after MUCH back and forth battling with the PROS (Performing Rights Organizations). The music will be on his live stream but REMOVED from his downloadable shows because the rights to include it in downloaded form is too expensive — more info here: http://artbell.com/art-bells-new-show-faq/ Bumper music must be paid for. “Fair Use” would include things like using 30 seconds of a song for the specific purpose of then reviewing or critiquing the song.
I don’t know of any case where someone playing loud music from their car as they drove by had any trouble, but I know of private parties playing music for large groups of people who have been approached. I know of figure skating clubs, dance clues, and community organizations who were playing a boom box for kids to skate or dance to in a public place that had to have a license. I know of bars and coffee shops who had to cancel live music because their venue didn’t have a license for music performance. Yes, the bar with the band has a license. The coffee shop with open mic night must have a license. Any situation where music is being “performed” (and yes, playing a record is considered a performance) with the intention of the public hearing it must be licensed. Stores can not play the RADIO with the intent of the shoppers being able to hear it — without a license! Playing a radio in the kitchen of a diner for the enjoyment of the cook is fine, but if it’s loud enough that the diners at the counter can enjoy it to — it needs to be licensed. That’s why so many stores have piped in music, MUZAK or satellite music services. The fees paid for those services include the licensing rights to play the music to the public in the store. When you download a ringtone for your phone of a popular song, rights ahve been paid. Yes, we’ve had ASCAP people visit our area and issue warnings and sell licenses to local clubs, bars, coffee shops and stores.
Ya’ll can believe what you want and do what you want. Odds are even if you’re blatantly violating the laws you won’t get caught. Me? I’d rather be as blatantly legal as I can be. I run my station as more of a business than a hobby and I’m out to get as many listeners as possible and generate income.
Do you call up the transmitter manufacturer and tell them to send you a free one because you’re not making any money? Does your internet provider give you free service because you’re a streaming station that doesn’t sell ads? Why do you expect the music to be free?
Yes, I’m sure if I sent you a check you’d cash it. But when you try to tell me you didn’t sell me your service you’ll look pretty silly in court when I arrive with the cashed check.
Don’t get me wrong. I fully and strongly believe that the copyright laws world wide are unfair, a belief that I won’t take the time to debate with anyone. Just that when I’m King of the World it will be one of the first things I’ll change. But in the meantime the current laws are what they are and you can’t go around changing them just because you wish they were different. I do not believe a songwriter or singer should get padd a royalty basically forever, and then for decades after they are dead, anymore than I believe the mechanic who fixed the brakes on your car should get a penny every time your brakes work. And that the other people at the same intersection should also pay because they also benefitted because your brakes worked and didn’t hit their car. No, I think copyright law in the USA is especially out of control, but until the law changes we have to play by the rules.
Bottom line is really really simply If you are playing ANY RECORDED MUSIC in the USA with the intent of members of the public being able to hear it, be it over the air, on a stream, or through loudspeakers in your store parking lot… you legally need to be paying for the right to do so. That’s the way the law is right now.
Tim in Bovey