Most music is copyrighted after it is created. When copyrighted music is performed, played publicly, or used in some form of media that is that is beyond “a normal circle of family or social acquaintances,” permission from the songwriter or composer is required. Permission is usually obtained by paying the artist a royalty through a licensing agreement. A music licensing agreement is essentially a contract that states how an organization may use the music, for how long, and in which mediums. Performing Rights Organizations (PROs) generally represent artists’ musical works for public performance royalties and facilitate these agreements.

A PRO is the bridge between artists and organizations that wish to play their music publicly. PROs collect royalties from licenses and pay the royalties back to the artists.

There are three major PROs: ASCAP, BMI, and SESAC. Each has its own repertoire of music that reflects the works of the artists they represent. A music license from one of these PROs legally authorizes an organization or individual to play or perform some or all of the music offered by the PRO. Songwriters or composers may only belong to only one PRO, so each PRO licenses a unique collection of music.

Music licensing covers both live and recorded music. Any license should accurately reflect the music being played at a winery.

Live music that requires a license from a PRO includes any cover music and any karaoke that is written by a member of a PRO and performed at an event open to the public.

Other live music may not require a music license. This includes but is not limited to:

Original Music: When the musician hired is not affiliated with a PRO that licenses their works ensure that they only play their original music – and do not take requests. If they do take requests, make sure they familiarize themselves with the PRO’s catalog you have a license(s) with.

Public Domain: When music played is written by a songwriter who has died more than 70 years ago and whose music is no longer covered by copyright.

Traditional Music: Traditional or folk music that has no songwriter.

Private Events: Weddings, birthday parties, anniversary parties, or other events that are invitation only, not open to the public, or held at any place where a “substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered…” (17 USC 101). Most winemaker dinners or wine club member events would not constitute a private event since they are outside of a normal circle of a family and its social acquaintances.

It is the venue’s responsibility to ensure that all music played on premises is not under copyright.

While there are exceptions, when recorded music is played in a public venue, the following mediums may require a license:

Personal Music CDs, Tapes, Vinyl Records, DJ’s, Free-Play Jukebox, iPod’s, MP3’s, or other digital music.

Enhanced Recorded Music: Karaoke, DVDs, VJs, Video Tapes

TV: In a space of 3750 square feet or larger, and 1) more than four TVs; or 2) more than one TV in any one room; or 3) if any TV has a diagonal screen size greater than 55 inches; or 4) if any audio portion of the audiovisual performance is communicated by more than six loudspeakers, or four loudspeakers in any one room or adjoining outdoor space; or if there is any cover charge.

For radio: 1) more than six loudspeakers; or 2) more than four loudspeakers in any one room or adjoining outdoor space; or 3) if there is any cover charge.

Some music may not require a license, such as:

Streaming Services for Business: Pay-in-advance services, such as XM4biz or Pandora Business.

Royalty-Free Music: If a business plays only royalty-free music.

Homestyle Exemption: In a space of less than 3,750 gross square feet where radio or television is  played and copyrights are covered by the broadcasters.

– or – In a space of over 3,750 gross square feet where no more than six loudspeakers are located, of which not more than four loudspeakers are located in any one room or adjoining outdoor space.

It is important to familiarize yourself with the PROs catalog before signing a licensing agreement.

The three main PROs repertoires can be found here:

• ASCAP
• BMI
• SESAC

Regardless of the PRO(s) you choose, ensure that the music you play is affiliated with the PRO you are licensed with.

Discussing with the PRO how they make their repertoire available via the license types they offer and understanding when you must comply with copyright law will help you decide which PRO fits your needs. PRO’s offer “blanket licenses” that allow you to perform all the copyrighted music in their repertoire. Alternatively, PROs offer a-la-carte options that lend more flexibility to businesses that don’t need access to an entire repertoire.

It is common for a PRO to contact businesses about becoming licensed. When contacted by a PRO, instruct your employees to direct all communication to a designated person in your organization that has been educated on music licensing. If you are playing copyrighted music, ask for a fee calculation sheet. If you are only playing music occasionally (four or less times a year) then you may qualify for an occasional license. If your winery is seasonal, meaning you are closed for a certain amount of time each year, you may qualify for a seasonal license.

For more information about music licensing, please see the following resources:

• Music in the Marketplace
• Music Licensing 101: The Basics for Hotel & Restaurant Operator