Early this year, the Farmers Market Coalition (FMC) sent an email to members about music copyright laws as they apply to farmers markets. I have included that email in the body below for your reference. Lately, we’ve heard even more anecdotal reports from FMC members being contacted by ASCAP regarding potential copyright infringement. Are you one of these markets?
Whether or not you have heard from ASCAP, to determine the scope of this issue and the potential need for a task force on the topic, we need your help. Please respond to our short, four question poll, to help us understand how many markets are being contacted:
If you are interested in participating in a task force of other markets to consider possible options and learn how other markets have dealt with music copyright, there is an option on the form to let us know.
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.
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 Better Business Bureau 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.
When we first approached ASCAP and BMI, we quickly learned that there was no formal licensing structure that really fit farmers markets. Both ASCAP and BMI, however, liken farmers markets with standard retail stores, and will readily provide those rate schedules to you. For your convenience, we have included links to them below.
BMI’s retail store licensing rates and details are linked here in the FMC Resource Library
ASCAP’s retail store licensing rates and details are available here in the FMC Resource Library
Since then, however, we have found that the charity concert venue license, while not entirely applicable to farmers markets, may be an appropriate avenue for some situations in farmers markets, which are more closely aligned with community fairs than a malls or bars. This licensing structure can be applicable as long as any proceeds generated by such an event are contributed to a charity other than the licensee.
- BMI’s rates for free or benefit events are linked here in the FMC Resource Library
- ASCAP’s rates for free or benefit events are linked here in the FMC Resource Library
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 firstname.lastname@example.org
Jack Flynn, Executive Director, Licensing - Key Accounts, BMI®: 615-401-2849 or email@example.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!
by Elizabeth Comiskey, Farmers' Market Coalition