Local Government Music Licensing Agreement - Amnesty Available until June 30

Wendy Batchelor*, Senior Attorney
Foster Pepper and Shefelman PLLC
November 30, 2001

Most public performances of music by local governments require consent to avoid liability for damages and costs for infringing the writer/performer's copyright. Public performances can be as informal as playing a CD as background music at a public swimming pool. Using music at government functions and events without a copyright license is likely to amount to an infringement of copyright. Although low-profile events may not come to the attention of the American Society of Composers, Authors and Publishers (ASCAP), the possibility exists that local governments could be liable for damages and other penalties.

A new licensing agreement enables government entities to perform music in public without liability for copyright infringement. ASCAP, in conjunction with the International Municipal Lawyers Association, has recently produced a standard form license. It covers almost all non-dramatic performing rights for live entertainment performances and mechanical music transmissions that take place on government-owned property and at events hosted by the government. This includes performances such as the playing of compact discs, videotapes, DVD's, music-on-hold telephone systems, and radio or television transmissions. It does not cover "dramatic" works such as full-scale opera or theatrical performances or Broadway musical shows. Signing up for the license before June 30, 2002, provides amnesty for past infringement.

Previously, entities had to negotiate individual licenses with ASCAP for each event or use. Now, municipalities can use the model license to save management time and costs. For an annual fee based on population, local governments can obtain a "blanket" consent to use music for public performances at, among other things, concerts, festivals, airports, schools, swimming pools, aerobics classes, and music-on-hold telephone systems. These annual fees range from $250 for cities under 50,000 population to $3800 for populations over 500,000. An additional $500 fee is charged for each 100,000 population above 500,000 to a maximum fee of $50,000. In 2003, these fees will increase by a CPI index increase. Once municipalities have obtained this license, no monitoring or tracking of individual events is necessary. The exception is for special events generating gross revenue of more than $25,000. These are covered by the license, but require separate reporting and individual fees based on a percentage of profits.

Unfortunately, signing the model license will not give governments comprehensive coverage. ASCAP is only one of three performing rights organizations, each of which administers a separate catalogue of musical works. Although ASCAP is the largest performing rights organization in the world, BMI and SESAC also have substantial rosters of composers, authors, and publishers. If a municipality wishes to use songs of artists from BMI or SESAC (for example, John Lennon or Neil Diamond), it needs to obtain consent separately from BMI or SESAC and sign a licensing agreement with them.

Municipalities should be aware that the model license does not include copying music or making or distributing sound recordings or sheet music. Although protected by copyright, these rights are separate from performance rights, and municipalities will need to get separate consents, frequently from the publisher rather than ASCAP.

As an incentive, if municipalities sign up for the model license before June 30, 2002, ASCAP will waive any claims to copyright infringement for unauthorized non-dramatic public performances of ASCAP material occurring prior to that date. This does not cover any outstanding ASCAP account balances already owed.

Full details of the model license and the applicable rates can be found on ASACP's Web site. Municipalities can also find a directory of music covered by the license on this site. ASACP can be contacted by phone at 800-505-4052. Information is also available on the International Municipal Lawyers Association Web site.

• ASCAP License Agreement for Local Government Entities (15 Kb)
• Rate Schedule (4 Kb)
• Report Form (7 Kb)

*Wendy Batchelor is a senior attorney at Foster, Pepper and Shefelman PLLC in Seattle. She focuses in intellectual property and technology licensing issues. Contact her by email at batcw@foster.com.