Q. Why does a funeral home have to pay an annual music licensing fee?
A. The fee is to pay for a license that permits the funeral home to have music performed on its premises or wherever it holds funeral services, whether it is performed live, through recorded music over CDs, DVDs, and cassettes, or by music-on-hold. Without a license, a funeral home that allows music to be performed at its facility commits a violation of federal copyright law.
Q. Does the NFDA music license only cover the funeral home facilities or does it allow music to be performed at offsite funerals?
A. Funeral homes holding the NFDA music license are authorized to have music performed at any place where funeral services are conducted by the funeral home.
This would include gravesites, schools, auditoriums, outside parks, private residences and anywhere else where a visitation, funeral or memorial service is held.
Q. Our funeral home does not have a music system, although we will allow families to bring in their own music to play during funeral services. Do we need a music license?
A. Yes. It does not matter who performs the music or who arranges to have the music performed. The license is required by the operator of the business in which the music is performed.
Q. Didn't Congress pass a music license exemption several years ago for small businesses?
A. Yes, but that covers only music played over the radio and television. The exemption also applies only to retailers with a building less than 2,000 square feet in size. Therefore, even if a funeral home fell below the 2,000 square foot restriction, the exemption only applies to music played over the radio or television. It would not cover music performed live, through CDs, DVDs, cassettes, or music-on-hold.
Q. Isn't there also a religious exemption that allows music to be performed at funeral homes without a music license?
A. If the funeral home only permits music to be performed at a religious service that is conducted by a member of the clergy, then a music license will not be required. If music is performed at any other time, the license is necessary. Therefore, without a license, a funeral home could only permit music to be performed during funeral services presided over by clergy. The performance of music at any other time or place would place the funeral home in violation of federal copyright law.
Q. What are the penalties for copyright infringement?
A. For each song that is performed without a license, damages are set by federal statute at a range of $750 to $30,000. However, if the jury finds that the infringement was "willful," the damages can be increased up to $150,000 per song. In addition, an infringer who loses the lawsuit will have to pay the attorney's fees of the plaintiff.
Because a violation occurs for each song that is played without a license, the damages in copyright infringement cases can mount up very quickly. In a 2002 lawsuit brought by SESAC against a Pittsburgh area radio station that did not have a SESAC license, a jury awarded $1.2 million because the radio station had played 31 songs from the SESAC library. The award climbed into seven figures because the jury had found that the radio station's infringement was willful. On top of the $1.2 million verdict, the defendant also had to pay SESAC's attorney fees which totaled nearly $500,000.
Q. Our funeral home dropped the music license five years ago. Does that mean that we can be liable for any song performed at the funeral home over the past five years?
A. The statute of limitations for copyright infringement is three years. Therefore, liability for performing a song without a license will only go back three years from the date the lawsuit is filed.
In most lawsuits brought by the licensing companies, they will use investigators to compile the list of songs performed without a license. Therefore, it is doubtful that the licensing companies would pursue the funeral homes for songs played in the past unless they had an investigator on-site to prove that the songs were performed.
Q. Who are the music licensing companies and what gives them the authority to sue funeral homes and other small businesses?
A. The three music licensing organizations are ASCAP, BMI and SESAC. ASCAP has about 8 million songs in its library, BMI has 6.5 million songs and SESAC a lesser amount. The rights to the songs are held by the songwriters or other copyright holders who authorize the music licensing organizations to represent them. The music licensing organizations collect fees from license holders who perform the music and distribute the fees to the copyright holders. For example, BMI reports that it has more than 300,000 copyright holders under contract and that the average songwriter earns less than $5,000 annually in royalties paid by BMI.
One of the major obligations of the music licensing organizations is to maximize licensing fees. In order to do this, they must pursue businesses that perform music without a license. Their primary weapons in this regard are the federal copyright statutes and the penalties they impose.
In the last several years, the music license organizations have engaged in an enforcement campaign against bars and restaurants. After conducting large-scale crackdowns on internet music swapping companies, the organizations have turned their license enforcement actions against brick and mortar establishments..
Q. Are funeral homes being targeted by the music licensing organizations for enforcement?
A. Yes. In the second half of 2009, ASCAP started an aggressive enforcement program in Iowa, Nebraska, South Dakota and North Dakota. ASCAP inspectors were shocked by the number of funeral homes without licenses. These homes were required to pay license fees for 2009 to ASCAP which were higher than the annual music license fee that NFDA negotiated to cover ASCAP, BMI and SESAC. ASCAP has now taken this enforcement effort across the country and SESAC has also taken notice. SESAC recently sent out warning notices to over 16,000 funeral homes. Since the time period for funeral homes to obtain their 2010 music licenses has expired, it will not be difficult for the music licensing organizations to go after unlicensed funeral homes since they know which funeral homes have licenses and which do not.
Q. What is the price of NFDA's music license?
A. Funeral homes that belong to any funeral service trade or professional organization such as NFDA, NFDMA, CANA, SIFH, OGR, or a state funeral directors association can purchase a blanket music license from NFDA for $239 for 2014. The music license covers all songs in the ASCAP, BMI and SESAC libraries. This is the LOWEST price available to funeral homes.
Q. Does the NFDA music license allow the funeral home to record popular songs on to DVDs and video tributes?
A. No. The NFDA music license is a "performance" license that allows music to be performed. In order to record music to a DVD or video, a "synchronization" license is required. BMI, ASCAP and SESAC do not issue synchronization licenses. The only way to obtain a synchronization license is through the producer of each song which is to be recorded. This makes it nearly an impossible task for a funeral home to put multiple songs on a tribute DVD or video.
Q. If funeral homes cannot record copyrighted songs on DVDs and videos, what is the alternative?
A. Funeral homes may purchase CDs of royalty- free music on the internet. This music is very generic, but does serve as suitable music for tribute DVDs and videos. The CDs typically cost anywhere from $50 to $100 and gives the funeral home an unlimited and perpetual license to use the music. The other alternative is to play the popular songs requested by the family on the funeral home's music system while the DVD or video is playing. As long as the songs are not recorded on to the DVD or video, a synchronization license is not required and the NFDA music license allows the funeral home to perform the songs.
Q. Does a funeral home need a license to record or play old songs? I heard that these songs are in the public domain and no license is needed because no one holds a copyright on them.
A. While it is true that most songs written before the early part of the Twentieth Century would be in the public domain, that does not mean that every recording of those songs are also in the public domain. For example, the song "Silent Night" may be in the public domain and anyone can perform it and record their own version without a license. However, that does not give me a right to record "Silent Night" as sung by Andy Williams on to a DVD. Andy Williams holds the copyright to his version of "Silent Night" and I cannot record it to a DVD without his permission.
Q. If a family makes their own tribute DVD with music, brings it to the funeral home and wants it played during the visitation, does the NFDA music license cover the playing of that music?
A. The NFDA music license would not cover that because the DVD (with music on it) violates the copyright of the owners of the music (assuming the songs on the DVD are not in public domain).
The NFDA music license is a performance license. It allows the funeral home to have music performed at the funeral home. That music can be live, on a tape, CD, MP3, vinyl, etc.
In the case of the DVD, the family needed a synchronization license to place copyrighted music on the DVD. The only way to get the synch license is to contact the owner of each song on the DVD and obtain their permission. Assuming the family did not do that, it violated the copyright of each song holder when it added their songs to the DVD. While the funeral home did not make the DVD, they also violate copyright law by playing the copyrighted music in the funeral home facility at a public gathering.
What the funeral home may do is play the DVD without sound. The music to accompany the pictures on the DVD can be played on the funeral home's sound system off of a CD, MP3, tape, etc. As long as the music is not coming from the illegally made DVD, the funeral home is not violating copyright.
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