Never Thought of It

The ratio of my restaurant to home-cooked meals is such that I can’t admit to it without blushing. It is high enough that I feel like a complete dufus never having thought about this before.

You know the music that restaurants play? The entirely forgettable background tunes or loud & aggravating noises that they blast at you? Restaurants have to pay music copyright holders to play that music! How could I never have thought about it before? After all, one of the exclusive rights reserved for the owner of copyright by § 106 of the Copyright Act is the right to

(4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;

and playing music in an open-door business is about as “publicly” as it gets. It’s entirely deducible that restaurants and other businesses that play copyrighted music or show a news broadcast on their premises have to pay a licensing fee for the privilege. I feel so dumb not having thought about it before Robert Levine pointed out the fact in his book (p. 214).

Now that I’m aware of this little reality, I decided to dig a bit deeper. Boy, do things get complicated fast!

As Jessica Litman wrote in her 2001 book Digital Copyright “[m]ost small businesses playing recorded music and many businesses playing television or radio . . . needed to buy a performing license to do so”. “Most” and “many” are, of course, cues that immediately trigger the question, “what are the exceptions?”. Why don’t all businesses playing recorded music, television, or radio need to buy a performing license to do so?

It turns out that many businesses do not need to pay a licensing fee to turn on the TV or radio in their establishments, despite what §106 of the Copyright Act says, because § 110 (5) modifies §106.  The text to §110  is of course long, convoluted, and designed to make copyright lawyers a necessity. Good thing Jessica Litman is such lawyer and has helpfully interpreted this section of the law for us:

Section 110(5)(A) permits use in public of a single radio or television, so long as the program is not further transmitted. Section 110(5)(B) expressly privileges the use of televisions or radios (but not records, tapes, or discs) to play music (but not other works) in bars, restaurants, and small commercial businesses.

As for recorded music,  § 110 (7) allows for “performance of a nondramatic musical work [without infringing copyright]” by lots-of-words-seemingly-to-describe music stores. However, I’m not sure how to square this language allowing music stores to play recorded music within their premises with a Congressional Research Service report which delivers this conclusion

. . . exemptions allow bars, cafes, and restaurants, to play the radio and showtelevision programing, but do not authorize the playing of recorded music. Research does not uncover any other provisions that would definitively immunize public performances of audio tapes and musical CDs in small business establishments from possible liability for copyright infringement.

unless the distinction is that § 110(5)(A) allows all businesses (provided they meet certain conditions) to play radio and TV, while  § 110(7) exempts only a specific type of business. Go figure . . .

On a final note, does this little requirement to pay for the music wafting in one’s business explain why the Tibetan restaurant I went to last week played the same chord with all of six notes over and over again for the hour that I was there?

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2 Responses to Never Thought of It

  1. Esa says:

    It may well be that the music is intended to aid in your search for spiritual enlightenment. Or at the very least, a subliminal attempt at having you leave a larger tip.

    • teasandbooks says:

      Yep, the fact that the music is part of a commercial enterprise and however directly or indirectly aids in money-making for that business is the justification for copyright owners to demand payment.

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