A Letter to Members RE: Copyright Liability

February 18, 2011

Call me crazy, but I’ve been thinking about risk a lot lately. What if this? What if that? Whether it’s related to product liability, market liability, or copyright liability, we’ve worked too hard to build farmers markets’ role as community anchors to risk everything to a lawsuit. This is partly why we launched this winter’s Insurance Webinar Series, which is helping explain the whys and hows of insurance relevant for farmers markets.

Last fall, we started hearing from our members about organizations like ASCAP applying pressure to some farmers markets to pay licensing fees for the playing of music on site, regardless of it being an unpaid service to the community. Some farmers markets permit live music from local artists and performers without charging ticket sales or compensating the musicians. Others may pay musicians for scheduled performances, especially for a fundraiser or special event. If such musicians play copyrighted music as part of a farmers market, that market, or the hosting organization, is legally obligated to pay a licensing fee, just as shopping malls, cafes, and other stores pays licensing fees in order to play recorded music over their loudspeakers, or host performing musicians.

While farmers markets are altogether different creatures than shopping centers, the legal realities of copyright law cannot be avoided simply because our missions are lofty.

So, here’s what we’ve been able to learn so far about the rules of the road.

Public performance of live music is subject to different licensing than the playing of recorded, or “mechanical” music (via CD player or iPod, for example). Generally speaking, public performances are very broadly interpreted under the law and are defined as performing “at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered.”

There are two main organizations holding music copyrights: The American Society of Songwriters, Composers, Authors, and Playwrights (ASCAP) and Broadcast Music, Inc. (BMI). Together, they cover at least 98% of copyrighted music currently out there. The majority of the fees collected through these licenses are paid to composers and publishers as royalties for the performance of their copyrighted works. Failure to obtain a license to perform or host the performance of copyrighted music publicly is copyright infringement under the copyright law, and subject to a civil suit in federal court.

You can learn more about these licensing organizations in this Palo Alto Area Bar Association Article. As this article states, buying a license from one performing rights organization, however, does not protect a business from liability for unauthorized performance of songs in another organization’s repertoire.

Now, here’s the good news. If you want to avoid ASCAP and BMI fees altogether, we recommend that you simply incorporate the following language in the form of a signed agreement with any music performers playing at your market:

“I am aware of U.S. Copyright Law and fully respect its authority with regard to the playing of live music. I hereby certify that any music played at ___ Farmers Market is of my own authorship or in the public domain.”

Simply telling musicians not to play copyrighted works is not adequate if indeed they do play copyrighted works. Both ASCAP and BMI have investigators who visit venues playing music (live or recorded) and identify music included in the works held by their employer. If identified, then ASCAP or BMI will contact the venue about the copyright violation and make them aware of the penalties for violating the Copyright Act. Of course, if none of the songs performed are within the respective BMI or ASCAP libraries of licensed works, then there is no issue. Simply playing music is not a copyright violation that can be enforced unless the work is protected, i.e. duly registered with the Copyright Office, and assigned to ASCAP or BMI.

Songs that are considered in the public domain in the United States include those published in 1922 or earlier or were published by the author without a copyright notice, which is denoted by a © symbol Until 1978, publication without the notice automatically placed the work in the public domain. Likely, there are a lot of music compositions out there that fell into the public domain and were never registered or renewed. This site, the Public Domain Information Project, may be a good resource for those looking for public domain music, though you should be aware that it does not include any works that are in the public domain for failure to follow the Copyright Act. Likewise, most traditional Irish, Scottish, Appalachian music will be in the public domain, even if more recently recorded versions of such music does in fact have copyright protection. Playing mechanical recordings of such copyrighted versions via CD over loudspeaker, for example, is subject to copyright infringement.

Your best defense in copyright issues, in the absence of a formal rate structure for farmers markets, is common sense. A guitarist whom you have explicitly asked to play “Stairway to Heaven” at the market would raise red flags for the licensing organization that holds that song’s copyright (ASCAP, in that case). A musician showing up and playing the fiddle for tips at your market’s entrance, unsolicited by the market, is most likely not your problem.

Rest assured that the Farmers Market Coalition will continue to explore ways in which our members can affordably adhere to their legal responsibilities. However, we do not have the staffing capacity or copyright expertise to serve as a middleman between you and these copyright organizations, and we recommend that you direct any questions about your specific situation to the music licensing organizations yourself, or to a qualified lawyer. Here are the contacts we’ve been talking with at ASCAP and BMI:

Michele McKinney, Licensing Manager at ASCAP: 888-852-1432 or mmckinney@ascap.com

Jack Flynn, Executive Director, Licensing – Key Accounts, BMI®: 615-401-2849 or jflynn@bmi.com

Please note that none of us in the Farmers Market Coalition are lawyers, and the legal wordsmithing in this email was possible because of Rex Stratton, an intellectual property lawyer in Vashon Island, Washington. Thanks, Rex for your pro bono support of farmers markets, and thanks to the Washington State Farmers Market Association for introducing me to Rex!

And, of course, thanks to all of you for your support as a member. It’s because of your continued financial support that we’re able to try and stay on top of these issues and help you navigate legal responsibilities at your markets. Please renew, donate, and spread the word about the Farmers Market Coalition in your community.

Gratefully yours,

Stacy Miller, Executive Director

Farmers Market Coalition