Music Licensing
Keep your music licensing requirements up-to-date! Click here to download the AH&LA’s American Society of Composers, Authors & Publishers (ASCAP) and Hoteliers Licensing Agreement.
Take advantage of AH&LA negotiated member discounts with ASCAP, SESAC and BMI. Log into the members only section of AH&LA’s website, and click on “discount programs” on the left. Read the two informative articles below and visit the AH&LA Information Center for answers to your questions!
Music & Film Copyright: The Scoop on How They Work in the Hospitality Industry
In the United States, music can be copyrighted by the composer of the music (or his designee). Once copyrighted, music cannot be lawfully performed in a public performance or rebroadcast to the public without a license from the copyright holder. “Public performance” is broadly defined. For example, playing a radio over loudspeakers can be deemed a public performance of the songs played on the radio. Playing a radio in a guestroom is not a public performance. Use of pay-per-view television by a hotel might, however, constitute a rebroadcast, and hence, might be deemed to be covered by the copyright laws. The person sponsoring or causing the public performance (not the performers) are required to be licensed. Thus, if a hotel has a band play in its bar, the hotel, not the band, needs the appropriate license.
There are millions of songs; thus, in theory, one needs millions of licenses, if one wishes to make music generally available to one’s customers. This is obviously impractical. As a result, music licensing “societies” came into being.
In the United States, there are three such societies — ASCAP, BMI and SESAC. These companies enter into agreements with copyright owners and by those agreements (i) obtain the right to license the copyrighted music to other people, and (ii) agree to pay the copyright holder. Each of these companies owns the right to license thousands of songs. These collective rights are known as catalogs.
If you have an ASCAP license, you have the right to play any or all of the thousands of songs in ASCAP’s catalog. If you have a BMI and a SESAC license, you have the right to play the thousands of songs in their catalogs.
The catalogs do not overlap. The thousands of songs in ASCAP’s catalog are different from those in BMI’s catalog and both of their catalogs are different from SESAC’s. The three companies compete to obtain the rights to license songs from the composers, and there is no overlap of songs in the catalogs.
As a result of this, in order to be safe, you need a license from each of the three societies.
Each of the societies has antitrust implications. They are, by definition, a combination of “competitors” — the composers. They have enormous clout because of this. ASCAP and BMI were long ago sued by the federal government for alleged antitrust violations. Each entered into an agreement with the government in order to resolve those allegations. Those agreements — known as consent decrees — remain in effect today.
SESAC does not have such an agreement. It was never sued by the government. It has been around for decades but for a very long time had very little market impact. Its catalog consisted largely of country-western songs and European songs, neither of which got much play.
Over the last ten years, SESAC has become energized. It has expanded its catalog and now licenses songs that are regularly played in the mainstream. Along with this increase in its catalog, it has steadily increased its efforts to sell licenses. Where it has been ignored, it has sued businesses for playing SESAC-controlled music without a license. As a result, it is not safe, or wise, to ignore SESAC. The penalties for copyright infringement — playing a song without a license — can be enormous. They can bankrupt a small business.
For decades, AH&LA has negotiated with ASCAP and BMI to obtain an “industry form” license. AH&LA received governmental approval to do this because it was thought that AH&LA negotiating for the industry was a fair offset to the enormous power of ASCAP and BMI. The form license that AH&LA negotiates is not binding on any hotel. Each hotel can accept or reject it. However, as a practical matter, AH&LA has more clout than any one hotel or hotel company, and hence, as a practical matter, the individual hotels and companies accept the industry form licenses.
AH&LA has not negotiated an industry form license with SESAC. It attempted to do so, but found that SESAC’s negotiating posture was not conducive to negotiation. AH&LA is currently revisiting this issue.
The negotiations are done by AH&LA’s Music Copyright Committee which, when active, consists of volunteers from hotel companies and legal counsel. In order to avoid having to renegotiate each item of the form licenses every five to seven years, the basic deal with both ASCAP and BMI is that their rates will stay the same, but will be adjusted yearly by the cost of living.
Motion pictures are also subject to copyright laws when played in a public forum. For example, there is a case to be made that having a showing of a movie for children at a hotel as part of a vacation package, is a public showing for which a license is needed. A licensing organization named MPA handles this in the United States. AH&LA does not negotiate with MPA because the occurrences of movie showings are not that great at hotels and MPA’s fees are said to be reasonable.
DO YOU COPY? AT ISSUE: MUSIC + FILM COPYRIGHTS
In the United States, music can be copyrighted by the composer of the music (or his designee). Once copyrighted, music cannot be lawfully performed in a public performance or rebroadcast to the public without a license from the copyright holder. “Public performance” is broadly defined. For example, playing a radio over loudspeakers can be deemed a public performance of the songs played on the radio.
The person sponsoring or causing the public performance (not the performers) are required to be licensed. Thus, if a hotel has a band play in its bar, the hotel—not the band—needs the appropriate license.
There are millions of songs; thus, in theory, one needs millions of licenses if one wishes to make music generally available to one’s customers. This is obviously impractical. As a result, music licensing “societies” came into being.
In the United States, there are three such societies: ASCAP, BMI, and SESAC. These companies enter into agreements with copyright owners and, by those agreements, obtain the right to license the copyrighted music to other people and agree to pay the copyright holder. Each of these companies owns the right to license thousands of songs. These collective rights are known as catalogs. If you have an ASCAP license, you have the right to play any or all of the thousands of songs in ASCAP’s catalog. If you have a BMI and a SESAC license, you have the right to play the thousands of songs in their catalogs.
The catalogs do not overlap, however. The thousands of songs in ASCAP’s catalog are different from those in BMI’s catalog, and both of their catalogs are different from SESAC’s. The three companies compete to obtain the rights to license songs. As a result of this, in order to be fully protected, you need a license from each of the three societies.