Every musical composition has an author who holds the copyright to it. Copyright is the ownership of a work of art. It belongs separately to the author of the words and separately to the author of the music.
But it’s not enough just to write the music and the lyrics. The song has to be performed by someone and recorded by someone. Accordingly, there are always related rights next to copyrights. But royalty-free music also exists.
Music in a Bar or Cafe
A neighbouring right is the right of someone who did not directly compose the music or lyrics, but who helped make the authors’ idea a reality. The rights are owned separately by the performer of the song and separately by the producer of the phonogram.
Example. Take Maroon5’s song “Memories”. It is rather difficult to make a recording of this format: you need a studio, equipment, sound engineer, engineers. Therefore, the record label has the right to the song. As a result, four rights are obtained: the right of authorship to the music, to the text, the allied right of the performer, and the allied right of the record label. They are also sometimes called “200% rights”.
Sometimes the four rights belong to different people, as in our example. There are times when one person wrote the words and music, sang it himself, and recorded it in his home studio. Then 200% of the rights belong to him alone.
The author has the right to perform the song in public. A public performance is any performance outside the usual circle of family or friends. Family or a group of friends use the songs for private (non-commercial) purposes, so there is no charge for such use.
And any place that plays music in the background uses it for commercial purposes. You have to pay the copyright holder for commercial use.
Example. Alex is the owner of a cafe. Together with his wife, he likes to listen to Sting. If Alex plays his songs in his apartment, it’s a non-commercial use. If he listens in the car while driving to work, that’s a non-commercial use. If Alex comes to work and plays Sting in his cafe, that’s a commercial use of the song.
And that makes sense. A subscription to a music service costs about 5-10$ every month. Organizations use music to make money. For them, the price of music should be higher. Subscription for business in commercial services depends on the area of the establishment, traffic, etc., but as a rule, it costs at least a thousand rubles a month.
Important. Spotify, Apple Music, Yandex Music, etc. are not intended for commercial use. Music from a flash drive, disc, radio, TV clips are also not suitable for public use.
By the way, performing someone else’s songs live in a commercial venue is also a violation. There must be either a contract with the author or a contract with the RAO. The law does not say exactly who has to pay: the musician or the restaurant where he sings. But the Supreme Court clarified that the person responsible for the music – the organizer, i.e. restaurant, cafe, bar – must pay.
Most cover bands work without contracts with rights holders. And if some local singer performs a Zivert song or someone’s else on a Friday night in a cosy restaurant with live music, the risk is not her, but the restaurant. But lawsuits over live music are extremely rare. The reason is simple: the rights holders simply do not get to these restaurants.
- Facebook Just Launched A Music App
- Spotify Expands Its Podcast Plans
- Exploring Possibilities in Music Business
How to legally play music in an establishment
To avoid getting fined by the RAO/WIPO, use legal ways. They are paid and they are free. Paid ones are more effective and without headaches.
Method 1. Agree with the special services. These intelligence agencies act as government intermediaries between songwriters and commercial organizations. The author can choose any intermediary organization. But the author can withdraw his rights from the control of these public services and work with any other intermediary. Many authors do just that.
If you sign a contract with any of these services, you can legally include tracks from most artists. You should contact your regional representative to sign the contract. The representative will calculate the amount of monthly payments and prepare a contract. The amount of royalties (royalties) depends on the type of institution and the number of seats.
You also have to report monthly on all the tracks that the businessman included in the institution. This report allows the intermediary to determine the amount of remuneration to the songwriters.
Method 2. Sign the contract with the intermediary company. You can use the services of private intermediaries. They enter into contracts with either author, record companies, or a collection society.
If you sign a contract with a private reseller, you do not need to report monthly on the tracks you use. And you pay less too.
Often government agencies are unhappy when they find out that a bar or restaurant has entered into an agreement with a private distributor. The case even in some cases comes to court. But in 99% of cases, claims against customers are removed.
It is important! If you choose a private distributor, please read the agreement carefully. It should indicate that the intermediary undertakes to represent the interests of the user in court and compensate for losses in the event of claims and legal claims.
Method 1: Include songs with an open license. There is music that the authors initially put in the free access, i.e. they give up the right to remuneration. This is the so-called creative commons or CC license.
You can find such music for a cafe or restaurant, for example, on Netlabels or on FMA. But the catch is that not every track can be played in a bar or cafe. The CC BY, CC BY-SA, or CC BY-ND license type is fine. If you are going to use music under a CC license, read the license terms for each track carefully. Compositions marked Non-commercial is forbidden to include in the establishments.
Method 2. Conclude an agreement directly with the rights holder. Many rock fans are familiar with the story of 2008 when RAO agents came to the Underground bar in Orenburg. They found no reason to complain, they heard the Splin band’s song “Time, Back Again” and asked if the bar had a contract with the copyright society.
The bar did not have an agreement. The bar was fined. Then the director of the bar wrote a letter to the leader of Splin and asked for permission to play the song. Vassiliev gave his permission. The bar avoided the fine but started making payments to the RAO.
You can’t negotiate directly with celebrities, but you can with local performers. The main thing is to discuss the conditions, the price, the list of allowed songs, and fix it in the contract.
Sometimes the copyright holder is not the musician, but the record label. Usually, the label has the rights to the songs of several artists. Then one contract with the record company is enough.
Method 3. Play old music. There is no such thing as music without copyright or related rights. But copyrights and allied rights have an expiration date. When it expires, the work goes into the public domain. For copyrights, it’s 70 years from the author’s death; for allied rights, it’s 50 years from the creation of the recording.
And this is where the nuances begin. Let’s say 70 years have passed since Tchaikovsky’s death. The copyright does not apply. But there are related rights of the performer and the producer of the phonogram. The recording of Tchaikovsky’s work performed by the Royal London Orchestra was made in 2010.
Related rights to it will cease to apply only in 2060. Until then, the institution must pay the holders of related rights: the orchestra and the label. Failure to pay is a violation. WIPO can levy a fine: 20,000 for each performance of a track.
So the only 100% way not to pay for old music is to take a record issued 50 years ago and have the author of the music die 70 years ago, too.
Method 4: Use the Mubert Music Generator. Mubert is a service that generates unique music tracks in real-time. You need to set the direction, duration and the program will generate a track. Service for the amateur, so we will not talk about it much.
A brief summary of the main points
- Each song is covered by four rights: the author’s right to the music, the author’s right to the lyrics, the performer’s neighboring right, and the record label’s neighboring right.
- The author has the right to be rewarded for the commercial use of his song. Commercial is any use outside the usual circle of friends or family.
- Services like Spotify, Apple Music, Yandex Music, and VK are not intended for commercial use. Radio, music from a flash drive or disc is also prohibited in cafes, restaurants, bars, and other establishments.
- There are two legitimate paid ways to include music in a bar or cafe: a contract with a public intermediary or a contract with a private music intermediary. The cost depends on the size of the place and the number of seats.
- There are free options, too. You can include songs with an open Creative Commons license or songs with expired copyright and related rights, or you can contract directly with the copyright holder.