by Ellen Wren
Playing music at your tasting room or brew pub is an important part of creating a welcoming ambiance for your guests. Unfortunately, it’s not as simple as queuing up the perfect CD, digital audio file or hiring musicians to provide a live performance. Establishments across the country are encountering expensive fines and possible legal fees for infringing on copyrights.

Music is written, produced, then copyrighted and licensed. Each time it is performed publicly, the songwriter is entitled to royalty fees. Purchasing music covers private listening use only. This is defined by U.S. copyright law as “a normal circle of friends and family”. Once the music is played outside this circle, it is considered a “public performance”.
Once you are offering a “public performance”, inside or on the grounds of your establishment, of any copyrighted music, you must protect your business from potential fines and litigation for potentially very costly copyright infringement damages. To do so, you need permission from the copyright owners, in the form of a music license. This license, which must be purchased, provides your business with the legal authorization to publicly play music. Unfortunately, it’s not as simple as paying for one license. There are three major Performing Rights Organizations (PRO). PROs collect licensing fees then pay royalties to the artists who created the music. The three primary PROs are BMI, ASCAP and SESAC.
You can choose to employ the following precautions and avoid the licensing issue all together. The key is to be mindful of your choices regarding what music you are playing and how you are broadcasting it in your establishment.
• Use pay-in-advance services, such as the business services offered by Pandora or Sirius.
• For live music, require the performers to play only original or non-copyrighted music.
Discuss the copyright laws with your performers in advance. Often, performers are unaware that by playing a “cover song” they are putting your business at risk.
• Play only royalty-free music
There is an exemption that applies to plenty of tasting rooms and brewpubs. If the “Homestyle Exemption” applies to your business, you are not responsible for paying music licensing fees to any PRO.
These are the guidelines of the exemption:
• If your business has less than 3,750 gross square feet — including all areas, even those not accessed by the public, including back offices, storage space, but not parking — and plays radio or television, the copyrights are already covered by broadcasters.
• If your business has 3,750 or more gross square footage but only uses six or fewer loudspeakers, with up to four located in any one room or adjoining outdoor space.
• If televisions are used, four or fewer TVs can be used, but only 54 inch or smaller and the limit is one TV per room.
• It’s important to note that this exemption does not include live performances.
For any size establishment, any music can be played in the staff work area, at a low volume, not to be heard by customers. Tara Good, Director of Operations at Wine America stresses that music licensing and the legal entanglements that can come along with it are a major problem for the industry.
She encourages winery owners to educate themselves on the situation and speak with their lawyers about the intricacies of this issue. The fees are not straightforward. Good says, “What most people are not aware of is how much they are required to pay. PROs will quote wineries high fees and threaten litigation, when the amount that a winery legally has to pay is in fact, much lower.” Some wineries are experiencing frequent calls and emails from PROs with threats of litigation. This leads to hesitancy to speak publicly about their experiences. No one wants to turn a spotlight onto their venue.
Wine America is actively advocating for transparency and fairness in music licensing policies. They recently joined the MIC Coalition, a group dedicated to protecting businesses that provide music from an undue financial burden, while at the same time ensuring fair and consistent compensation to artists.
According to the MIC coalition, there is hope for change. Laws are being reviewed and royalty rates are being examined. The Copyright Royalty Board (CRB) is the branch of the Library of Congress that determines these rates. By the end of 2015, it is expected that they will reveal a verdict that sets the fees for the next five years. This outcome will have a large impact on music in wineries and brewpubs. The hope is of course, for fair and consistent music licensing laws and reasonable, sustainable royalty fees.
It is advised that wineries and brewpubs keep themselves aware of changes in music licensing and take steps to protect themselves from liability. Know your rights and responsibilities. Careful and conscious use of music is essential in the current climate.