City governments are subject to federal copyright law and must take the necessary steps to ensure they are properly licensed. Federal copyright law protects the rights of those who author or create scientific, literary, dramatic, musical, graphic or artistic “works”. The purpose of the law is to encourage the creation of such works by protecting the right of authors and creators to benefit from their works. Claims of copyright infringement are litigated in the federal court system, and the use of copyrighted works in violation of the law can result in heavy monetary penalties and incarceration.
In order to comply with copyright law, the city will need to obtain annual performance licenses from entities that license the public performance of music. There are numerous examples of when a city would need a license, including playing music at the municipal pool or during storytime at the public library. A city is also required to obtain performance licenses to cover the playing of library-owned CDs at library activities. City officials should also note that it is a violation of copyright law to copy those CDs onto a library computer to use for library purposes.
It is likewise a violation of U.S. copyright law to copy iTunes songs onto a library computer. In addition, it is a violation of the iTunes Terms and Conditions to do so. The iTunes license to users allows the playing of iTunes music for personal use only, so the playing of iTunes music from a librarian’s iPod at storytime is prohibited.
A musician or band hired by the city to perform at a civic function must be licensed by the appropriate licensing entities in order to perform music at such an event. In addition, the city must hold an annual license from the appropriate licensing entities in order to have music performed or played at such an event. Finally, if the city receives “gross revenues” in excess of $25,000 from such an event, the licensing entities will also charge the city an event fee in addition to the annual fee.
There are three major music licensing entities. The American Society of Composers, Authors and Publishers (ASCAP) is a membership association of composers, songwriters and publishers of every kind of music in the U.S. and worldwide. ASCAP is the only U.S. performing rights organization created and controlled by composers, songwriters, and music publishers, with a Board of Directors elected by and from the membership. ASCAP licenses non-dramatic public performances of its members’ works.
Broadcast Music, Inc. (BMI) is an American non-profit performing rights organization that represents songwriters, composers and music publishers in all genres of music. BMI licenses radio airplay, broadcast and cable television carriage, Internet and live and recorded performances of its musical repertoire.
SESAC (formerly the Society of European Stage Authors and Composers) is a performing rights organization and collects license fees on behalf of affiliated songwriters and publishers in the U.S. and in foreign countries.
Musicians and composers can choose which of the licensing entities they affiliate with for copyright protection and enforcement purposes. Since none of the licensing entities represent all musicians and composers, many cities obtain licenses from all three entities to assure maximum protection from copyright infringement.
The ASCAP and BMI license fee schedules applicable to cities feature both an annual fee and a special event fee applicable to events generating gross revenues in excess of $25,000. The annual fees for ASCAP and BMI licensing use a sliding scale based on the population of the city. Under their 2016 fee schedules, the fees charged by both entities range from a minimum fee of $336 for cities of 50,000 population or less, to $5,095 for cities of 500,000 (plus $500 for each additional 100,000 of population).
The special event fee charged by both entities is 1 percent of the gross revenues from the event. ASCAP requires the filing of a report by the licensee city within 30 days of the execution or renewal of the annual license, and the filing of a report within 90 days of the conclusion of a special event. BMI requires the filing of a report upon initial execution of the annual license, and the filing of a report within 90 days of the conclusion of a special event.
The International Municipal Lawyers Association (IMLA) has negotiated a form of license agreement for use by cities with both ASCAP and BMI. Those license forms include a standard rate schedule which is subject to periodic adjustment by those licensing entities. The standard license forms, reporting forms and the rate schedules are available on IMLA’s Web site.
The SESAC performance license form, fee schedule and initial license fee report can also be obtained online.