Legal Corner: Music Copyright Laws

Christina Estes-Werther, League General Counsel

Music is an integral part of our daily life. From telephone hold music to an Academy Award winning score from your favorite movie, our society encounters numerous styles and forms of music each day. But have you ever considered that most of the music that is publicly broadcast in restaurants, hotels and airports in your community must be licensed? And if your city or town is hosting an event that will feature music, a license is required prior to the first note played by a cover band or song from the radio.

In the December Legal Corner, the article provided an overview of copyright law and explained that copyright is a protection of an author's original work that is expressed in a tangible medium and a work includes a musical work or sound recording. 17 U.S.C. § 102. A musical work is often considered to be the lyrics, the musical composition, or the embodiment of the composition in a recording, and sound recordings is broadly defined as "the fixation of a series of musical, spoken, or other sounds…regardless of the nature of the material objects, such as disks, tapes, or other phonorecords, in which they are embodied." 17 U.S.C. § 101.

An original author of musical work or sound recording has an exclusive right to duplicate or perform the work, prepare derivative works, distribute copies of the work, or display the work and an author of a musical work has additional rights to publicly perform and display the work. 17 U.S.C. §§ 103, 106. Musical works and sound recordings are separate copyrights and can be owned by the same person or different people or entities.

Any person can purchase a CD or download a song and privately listen to the music in their home without fear of copyright infringement as long as there is no charge for the music and the music isn't transmitted to the public. 17 U.S.C. § 110(5)(A). But once the music is performed beyond the typical gathering of family and friends, federal law classifies the music as being performed "publicly" and a license is required. 17 U.S.C. § 101 Copyrighted work is performed if it is recited, rendered, played, danced, or acted, either directly or by a device or process including audiovisual work. 17 U.S.C. § 101 Additionally, the form of music does not eliminate the requirement for a license - the music can be played from the radio, sung by a performer, aired on television or played on a jukebox. Regardless of how the music is played, if it is performed publicly, the music must be licensed.

Cities and towns are not exempt from the licensing process and if a city or town wants to provide music at their festivals, fairs and other public events, a license is necessary. In order to obtain a license, the author must grant permission for the use of the copyrighted work but this may result in a cumbersome process of trying to locate the copyright owners for each song. Fortunately, most music is licensed through a small number of licensing agencies that provide a blanket license to a person or entity that allows the lawful broadcast of the music.

Local governments have an additional resource through the International Municipal Lawyers Association (IMLA), which provides a myriad of services to local government attorneys across the United States and Canada. IMLA negotiated with Broadcast Music Inc. (BMI) and the American Society of Composers, Authors and Publishers (ASCAP) to create a uniform music licensing agreement for cities and towns. While a city or town may continue to obtain a license directly from the agencies, this blanket agreement creates a consistent licensing scheme for all local governments and removes many of the challenges of identifying specific music or obtaining permission from each author each time the music is performed. The agencies charge fees, which are then distributed to the copyright owners.

Copyright infringement may lead to an injunction, payment of damages up to $150,000 for each work infringed and attorney's fees, and may result in criminal penalties. 17 U.S.C. §§ 501-513. If your city or town utilizes music at public events it may be beneficial to investigate a blanket license to save your community from the costs and the burdens of any future infringement action.

BMI: Music Licensing for Towns, Counties, Municipalities, and other Local Government Entities

ASCAP: Why a Local Government Needs a License to Play Music

IMLA Music Licensing Agreements

League of Arizona Cities and Towns
1820 W. Washington St.
Phoenix, AZ  85007
Phone: 602-258-5786
Fax: 602-253-3874

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