Can the beat go on?
Music Licensing & Copyright
Attorney Erin Ogden of Ogden Glazer + Schaefer
Wisconsin Winery Association Annual Meeting
May 21, 2019
What can be protected?
Copyright protection extends to
• original works of authorship,
• fixed in any tangible medium of expression, now known or
• from which they can be perceived, reproduced, or otherwise
communicated, either directly or with the aid of a machine or
What can be protected?
Works of authorship include the following categories:
• literary works;
• musical works, including any accompanying words;
• dramatic works, including any accompanying music;
• pictorial, graphic, and sculptural works;
• motion pictures and other audiovisual works;
• sound recordings.
Exclusive Rights of Owners
The owner of copyright under this title has the
exclusive rights to do and to authorize how the
material can be
Can transfer ownership or just give permission to
• Each piece of authorship can be owned separately
• Each piece of authorship can license each piece
Permission to use
• Can limit scope by person, geography, use, etc.
Different routes available for licenses
• Direct from author
• Purchase a license
• Other licenses
It is not an infringement of copyright if it is “Fair Use”
The factors to be considered include:
• the purpose and character of the use, including whether such use is of a
commercial nature or is for nonprofit educational purposes;
• the nature of the copyrighted work;
• amount and substantiality of the portion used in relation to the
copyrighted work as a whole; and
• the effect of the use upon the potential market for or value of the
A performance that occurs in
• a public place or
• any place where people gather (other than a small circle of a family or its
A performance that is transmitted to the public;
• For example, radio or television broadcasts, music-on-hold, cable television,
and the internet
What about radio?
Permission for radio and television transmissions in your business is not needed
if the performance is
• by means of public communication ofTV or radio transmissions,
• by eating, drinking, retail under 3750 square feet or other establishments under 2000
square feet which use a limited number of speakers orTVs,
• and if the reception is not further transmitted (for example, from one room to another) from
the place in which it is received, and there is no admission charge.
What is a “limited number”?
For radio, if the business is using:
• more than six loudspeakers; or
• more than four loudspeakers in any one room or adjoining outdoor space; or
• if there is any cover charge; or
• music on hold.
ForTV, if the business is using:
• more than fourTVs; or
• more than oneTV in any one room; or
• if any of theTVs used has a diagonal screen size greater than 55 inches; or
• if any audio portion of the audiovisual performance is communicated by means of more
than six loudspeakers, or four loudspeakers in any one room or adjoining outdoor space; or
• if there is any cover charge.
Music Licensing Services
BMI, ASCAP, and SESAC
Licenses the public performances of its members' musical works.
Licenses vary depending on business
• Over 100 different ASCAP rate schedules
• Airlines,Amusement Parks, Bars, Restaurants & Nightclubs, Fitness Clubs, Hotels,Websites,
Retail Stores and music users in a wide variety of other industries.