Playing That Holiday Music Can Be Costly

With the Holiday shopping season approaching, on to the very practical for business owners who play music – even Holiday music – in their establishments.

            Whether situated on Ventura Boulevard, along one of the many other major thoroughfares, in one of the malls or operated out of a smaller venue, Sherman Oaks is home to one of the most vibrant retail shopping and restaurant areas in Los Angeles County. And with eating and shopping comes music; music to set the ambiance, music to draw attention to potential customers and patrons, music to set one business apart from another business, music that can take the form of played cassette tapes (I date myself here), CDs, radio, televisions, hold music and live performance and so on, and so on. With music, comes Copyright issues. Specifically, Copyright law extends to performances and re-plays. As an example plainly stated, the purchase of a CD entitles the purchaser to enjoy the music for private, home use. Playing the same CD in a for-profit business establishment means that the owner of such an establishment must pay for the privilege.

Not to be too much of a Grinch this holiday season, not paying proper royalties can trigger some pretty substantial damages that can be legally recovered by the owner(s) of the Copyright. These may include, but are not necessarily limited to: actual damages as a result of the violation and any profits of the infringing business attributable to the infringement (e.g., if playing a certain song can be shown to have resulted in more sales being made by the business, profits that resulted can be awarded to the owner(s) of the Copyright); statutory damages of $500.00 to $20,000.00 per Copyrighted work (and if the infringement was “willful”, damages may be increased to $100,000.00); and, potential, reasonable attorney’s fees.

That gets us through some of the bad news. The good news is that, in addition to music soothing the savage beast…and, yes, often resulting in said beasts making more buy decisions at your business, there are three basic things to do if you plan on using music.

The first is to remember that music sets the tone (pun intended) for any business, and that tome becomes part and parcel of the look and feel of the establishment. As an example, I often begin with the somewhat rhetorical question of, “What does Starbucks sell?” Answer: coffee; wrong. Answer: a modified coffee and food experience somewhat akin to a Viennese coffee house; correct. Music creates pre-sale confidence by attracting customers who are in sync with the attributes of the music. Want nerds? Play ELP or Kraftwerk. Want trendies? Play Feist. Want Dudes? Play Rush. Music also results in post-sale confidence as auditory memory is one of the strongest emotional devices around.

The second is contact or get a lawyer to help you with this. Not only can counsel work with you about discerning the parameters of music in your establishment, but may also be able to navigate your business through some of the exceptions to having to pay license fees at all.

The third relates to a bit about the specifics of the law in this regard: generally speaking, for restaurants with less than 3,750 gross square feet there are safe harbors when radio and/or televisions are played and also some key provisos for restaurants with more than 3,750 gross square feet based on either the number of speakers and/or televisions. And generally speaking for retailers, this same safe harbor regime applies when the size of the business is no more than 2,000 gross square feet. The particulars of this will require you to work with your lawyer, but it is well worth it…both to protect against unwanted lawsuits and also to boost sales this year and in 2012.