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1) What copyright material can I play in my bar without licensing? 2) Must I pay the commercial rates for PPV and sat tv?

Chicago, IL |

My food service/drinking establishment has less than 3750 sq ft of space.

I want to stream FM radio stations from the internet.

Public Law No. 105-298

Attorney Answers 4

Posted

1) None. You need a "blanket" performance license from ASCAP and/or BMI to be able to play their entire catalog. Please see the ASCAP link below.

2) Yes.

Avvo doesn't pay us for these responses, and I'm not your lawyer just because I answer this question or respond to any follow-up comments. If you want to hire me, please contact me. Otherwise, please don't expect a further response. We need an actual written agreement to form an attorney-client relationship. I'm only licensed in CA and you shouldn't rely on this answer, since each state has different laws, each situation is fact specific, and it's impossible to evaluate a legal problem without a comprehensive consultation and review of all the facts and documents at issue.

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Asker

Posted

Thank you for such a quick response! When I refer to the Licensing FAQs I find a part titled "What are the exemptions for the reception of radio and television performances in eating and drinking establishments and retail establishments?" ASCAP: "A food service or drinking establishment is eligible for the exemption if it (1) has less than 3750 gross square feet of space (in measuring the space, the amount of space used for customer parking only is always excludable);" My food service/drinking establishment meets that criteria for exemption.

Posted

The relevant law at 17 U.S.C. 110(5)(B) states that:“Notwithstanding the provisions of section 106, the following are not infringements of copyright … communication by an establishment of a transmission or retransmission embodying a performance or display of a nondramatic musical work intended to be received by the general public, originated by a radio or television broadcast station licensed as such by the Federal Communications Commission, or, if an audiovisual transmission, by a cable system or satellite carrier, if … in the case of a food service or drinking establishment, either:
• the establishment in which the communication occurs has less than 3,750 gross square feet of space (excluding space used for customer parking and for no other purpose) or
• the establishment in which the communication occurs has 3,750 gross square feet of space or more (excluding space used for customer parking and for no other purpose) and ... ."

Forget the second situation because your bar is not more than 3,750 gross square feet. So, under the circumstances described by the statute, turning on a radio in your bar that plays terrestrially broadcast music is most certainly lawful without you having to pay any license fees to the musical composition copyright owners [via ASCAP or BMI].

But what about turning on a radio station that plays music streamed over the internet? I see no such distinction in the statute and know of no court case or Copyright Office guidance that finds that the 17 U.S.C. 110(5)(B) exception does NOT apply if the music played by the radio is streamed rather than broadcast.

So my gut reaction is, no, you do not have to pay a license fee to stream an internet radio station over one radio in your bar. But I don't know this for sure -- the statute may have been found by a court NOT to apply to streamed radio. So have your own attorney look into the matter. Good luck.

The above is general information ONLY and is not legal advice, does not form an attorney-client relationship, and should NOT be relied upon to take or refrain from taking any action. I am not your attorney. You should seek the advice of competent counsel before taking any action related to your inquiry.

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Posted

If the only music you play is via radio (with less than two speakers) and television, then you might be able to avoid paying for blanket licenses from ASCAP, BMI, SESAC and Sound Exchange (the latter covers internet streaming). But if you play records, CD's, MP3's, if you have a DJ, if you play music videos, or if you have any life performances or karaoke whatsoever, you need blanket licenses from ASCAP, BMI, SESAC and Sound Exchange. Very few bars can safely avoid obtaining these blanket licenses because at some point they will play music from a source other than broadcast radio or television. Further, you will have to pay commercial rtes for PPV and Satellite TV. The blanket licenses that you need are inexpensive for a bar/restaurant of your size, and as a matter of both business and legal judgment, it is wise to obtain those blanket licenses.

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Bruce E. Burdick

Bruce E. Burdick

Posted

Questioner, of the conflicting answers, this middle ground answer is, in my view the right one and the most practical. These blanket licenses are a normal cost of business for a tavern/night club. Like insurance and they provide peace of mind. You want to concentrate on running the bar in the best way and these licenses provide the flexibility to do that.

Posted

A blanket license is what you should get, regardless of what you technically need. You obviously found the 3750 sq. ft. exception, described comprehensively by Attorney Ballard, but don't you want the flexibility to do live performances and expand so you can run your night club in the best way possible to make the most money possible without getting caught or delayed or blocked by this later on. Consider it a cost of doing business, a form of insurance. Chicago bars get these as a routine matter. It is certainly routine here in downstate IL, even in small town bars. Of course, down here You Gotta Have a Fiddle in the Bar. Attorney Ross explains this very well.

So far, this is free to you. Until you pay a fee, I am not your lawyer and you are not my client, so you take any free advice at your sole risk. I am licensed in IL, MO, TX and am a Reg. Pat. Atty. so advice in any other jurisdiction is general advice and should be confirmed with an attorney licensed in that jurisdiction.

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