Ask Afaa - copyright issues when playing music in exercise studios

American Fitness, Sept, 2001

Q.

Can I play my workout music where and when I like?

A.

No. Although most people buy tapes and CDs thinking they are their property, by law, there is a distinction between owning a copy of the CD and owning the songs on it. There is also a difference between a private performance of copyrighted music and a public performance. Most people recognize that purchasing a CD doesn't give them the right to make copies to give or sell. In fact, the record company and music publishers retain those rights. Similarly, the music on CDs and tapes also belongs to the songwriter or composer of the work.

When owners or instructors buy a tape or CD, even one specifically designed for health club or dance studio use, the purchase price covers only private listening use (similar to the "home" use of home videos). Once you play these tapes or CDs in your health club or dance studio, it becomes a public performance. Under the United States copyright law, songwriters, composers and music publishers have the exclusive right to public performance of their musical works. Therefore, any public performance requires permission from the copyright owner or a performing rights organization, such as BMI. For example, with a BMI Music Performance Agreement, you can publicly perform all BMI-affiliated music.

Songwriter and Composer Compensation

Songwriters and composers are only nominally compensated when a CD is purchased. Moreover, the purchase price of a CD does not cover the public performance of the works. Because the songwriter or composer is often different than the artist performing the work, approximately 50 percent (and in some cases as much as 75 percent) of a songwriter's income is derived from public performances. This makes fees for public performance a critical component of the songwriter's income and what enables him or her to continue to create music.

Exemption

There is an exemption in the copyright law, but it only applies to nonprofit educational institutions. Health clubs and dance studios are not exempt from music licensing. Clubs and studios that are using music and profiting from the performances must obtain proper licensing.

Licensing

Dance/aerobic instructors are not responsible for music licensing. Similar to other business permits, the owner is responsible for obtaining a music license. Also, keep in mind that a commercial music service probably does not cover a health club's or dance studio's music licensing responsibilities. To make sure, review your music services agreement. Commercial music services which are licensed with BMI, for example, provide BMI music for background use only--in locker rooms, lounge or lobby areas. Once you use music to accompany dance or aerobics classes, there is a separate fee for the more intensive and specialized use.

BMI Music Performance Agreement

One out of every two songs played on American radio is BMI-licensed music. All BMI music--including classic cardio workout songs like KC & The Sunshine Band's "Boogie Shoes," the Bee Gees' "You Should Be Dancing," Sugar Ray's "Someday" and Spin Doctors' "Two Princes"--is available for use in aerobics/dance classes with the proper permission from BMI.

If you choose to use music not in the BMI repertoire, you must obtain permission from other copyright owners. There are two other performing rights organizations in the United States, the American Society of Composers, Authors and Publishers (ASCAP) and SESAC. If you play the music these organizations represent, you must have separate agreements with them or the individual copyright owners.