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MMD > Archives > August 2014 > 2014.08.29 > 02Prev  Next

Mechanical Music Played in a Public Venue
By Matthew Caulfield

[ Ref. 140814 MMDigest, "Rich Olsen Wurlitzer Rolls Copyright Status",
 [ by Gordon Ramsey --

Theoretically any music played in a public venue for profit is subject
to royalty payment to the copyright holder, if the music has not fallen
into the public domain.  Any such music is construed as being played
for profit even if it is played only as background music for the
entertainment of customers or to attract customers to a walk-in site.

The question of when music falls into the public domain is itself a
complex issue today due to the meddling of Congressman Sonny Bono and
his Disney friends into Federal copyright legislation, which greatly
extended the old rule of 28 or 56 years from date of composition.

As a practical matter, copyright holders are in no position to extract
royalty payments from people and places that owe them royalties;
collection is left up to agencies like ASCAP which act as their agents.
If and when ASCAP finds out that you are playing copyrighted music in
such an environment that you owe royalties, they will issue a demand
for payment.  But if you are only a small potato in the pot, they will
probably never notice you and never demand anything.

Seabreeze Park played copyrighted music on its band organ for decades
without paying royalties and only came into ASCAP's eyesight when it
installed a Muzak system to broadcast background music throughout the
park.  Even though the Muzak system is long gone, the park still pays
an annual licensing fee for its use of band organ music and other
incidental music.  It is anybody's guess how ASCAP calculates that
fee, differentiating between music played from old music rolls where
all the music is clearly public domain and music played from new rolls
arranged by Rich Olsen and the like, containing a mixture of public
domain tunes and copyrighted tunes.

There was some talk a few years go about ASCAP wanting people who
played musical instruments at organ rallies to pay up, but I never
heard of any actual pursuit of this.

Under current U.S. copyright law, embodied in the Copyright Act of 1976
and its amendments, lack of a printed copyright statement on a document
does not free anyone from being prosecuted for copyright infringement,
because a written copyright notice and registration with the Copyright
Office is no longer a copyright requirement.   The mere act of creation
of a text or piece of art or music endows its creator with copyright

The only advantage of written copyright notice or copyright registration
is that, when an issue comes to court (which is where all copyright
issues are settled), having them defeats any defense, made by the other
party, of innocent infringement.  Even innocent infringement can be
subject to court-ordered damages payment by a defendant, but willful
infringement damages can be significantly higher than innocent
infringement damages.

Matthew Caulfield
Irondequoit, New York

(Message sent Sat 16 Aug 2014, 16:20:33 GMT, from time zone GMT-0400.)

Key Words in Subject:  Mechanical, Music, Played, Public, Venue

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