A Primer on Music Performance Licenses (Musical Compositions)

Among the exclusive rights granted to the owners of most copyrights is the right of public performance. As discussed in the Primer on Music Performance Licenses (Sound Recording), the public performance right for a sound recording is only available for music transmitted digitally or by satellite.

But wait, a song is comprised of multiple elements which may each be entitled to separate and distinguishable copyrights. The sound recording that captures a performance of a song is entitled to relatively limited copyright protection since there is not a full performance right. However, the underlying musical composition including the lyrics are entitled to full copyright protection, including the full performance right.

So, the sound recording is only entitled to a limited performance right while the underlying musical composition is entitled to a complete performance right.

When Congress granted the limited performance right in the sound recording, it created a compulsory license to make it “easy” to use the music. There is NO compulsory license for the performance of the underlying musical composition.

Because there is NO compulsory license available for the performance of the underlying musical composition in a sound recording, people and companies that use music in a way that qualifies as a public performance have to obtain a license from the owner(s) of the copyright in the musical composition.

The activities that qualify as a public performance of music range from the obvious (television and radio) to the more obscure (Singing Christmas Trees and airplanes).

It would be impossible for every potential user of musical compositions in public performances to get licenses (i.e. permission) from every copyright owner.

Yet there is NO compulsory license for the performance of the underlying musical composition. So what is the producer of a Singing Christmas Tree to do?

The vast majority of owners of copyrights in musical compositions in the United States are aligned with one of three performance rights organizations (a “PRO”): The American Society of Composers and Publishers, Broadcast Music, Inc. and SESAC. Each PRO is authorized and entitled on a non-exclusive basis to negotiate blanket performance licenses with end users to perform any of the songs in its catalog.

Like other parties who perform music publicly, the producer of a Singing Christmas Tree should obtain a license from EACH of the PROs to ensure that each of the songs the choir sings is properly licensed. By the way, I have had to obtain licenses for Singing Christmas Trees and parking lots too!
As there is no compulsory license for the public performance of the underlying musical composition, users who have to obtain licenses negotiate the rate with each PRO.

For More: A Primer on Music Performance Licenses (Sound Recordings)

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About Nancy Prager

Nancy Prager is an attorney based in Washington, D.C. She represents a wide range of clients on matters from intellectual property to estate planning. Before starting her own practice, she practiced with firms in Memphis and Atlanta, as well as providing business development services to technology companies. She launched her practice to offer strategic legal services to clients at an affordable rate. Additionally, Nancy is a sought after speaker and writer on issues related to the convergence of intellectual property, technology and media. Nancy was asked to write a series of commentaries for News.com on the emerging legal issues related to the transmission of content on the internet. She has spoken to organizations and conferences around the country on issues related to the convergence of technology, content and intellectual property, as well as strategic legal issues for companies, individuals and artists. Journalists often rely on Nancy as a resource for emerging legal issues. Nancy has a strong commitment to social justice. She has founded, or co-founded, a number of organizations and programs that provide tangible services to their constituencies. For example, while a student in law school she developed the Domestic Violence Advocacy Center that provides legal services to victims of domestic violence. Additionally, she has been involved with a number of organizations that provide services to children and their families, including serving on the boards of the Harwood Center and Porter Leath Children’s Services. She is a graduate of Wake Forest University School of Law and the University of Wisconsin, Madison. She is a member of the District of Columbia Bar, the State Bar of Georgia and the State Bar of Tennessee. She has been a member of a variety of legal organizations including the Copyright Society of the USA and the American Bar Association.

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2 Responses to A Primer on Music Performance Licenses (Musical Compositions)

Pingback: A Primer on Music Performance Licenses (Sound Recording) « Reasonable Balance
Dan-O says:

March 25, 2009 at 11:20 pm

Wow, reading the complexity of performance rights makes me understand why chain restaurants started making up their own happy birthday songs instead of dealing with the licensing hassles! Thanks for the explanation.

Dan-O
http://www.danosongs.com