Performing Cover Tunes – Performance Rights and Licenses

“Is it legal for my Christian band to perform cover tunes at live gigs?”

and

“Do I have to get a license or pay royalties?”

are two very common questions Christian performers ask.

Despite information to the contrary… Yes, in most cases it is legal to perform cover tunes and most of the time you do not need to get a license or pay royalties.

cover tunes
Most bands play cover tunes.

Definitions:

Cover tunes (or cover songs) are simply songs that are being performed or recorded by a different artist (your band) than the one who wrote the song or made it famous. There are many reasons your band should consider playing cover tunes. But we have covered those in another post. CLICK HERE to read about them.

BMI says “A “public performance” of music is defined in the U.S. copyright law to include any music played outside a normal circle of friends and family. Songwriters, composers, and music publishers have the exclusive right to play their music publicly and to authorize others to do so under the copyright law. This is known as the “Performing Right“. This right was designed to enable and encourage music creators to continue to create music.

When you see the words “All Rights Reserved” on a movie that you’ve rented or purchased, you know that playing that movie before a public audience is prohibited. The same restrictions apply to music that is purchased, broadcast, or live musicians that are hired to play in a public setting. Every business or organization must receive permission from the copyright owners of the music they are playing before playing it publicly.”

Do not misunderstand…
Artists and songwriters should receive royalties
when your band performs cover tunes.
But it is not your band that should be paying them.

Who pays? The venues.

BMI’s explanation about why artists are not responsible to get licenses is,

“Since it’s the business or organization that’s benefiting from the performance of music, management is responsible for ensuring that the organization is properly licensed. This responsibility cannot be passed on to anyone else even if the musicians hired are independent contractors.”

Almost all venues whether they are halls, bars, coffeehouses, or restaurants should have a license from Performance Rights Organizations (PRO’s). These organizations are ASCAP, BMI and SESAC.

Most venues need a license from all three organizations. Here’s BMI’s explanation of why:

“A music license with another performing right organization allows you to perform only copyrighted music represented by that organization. It does not cover public performances of the award-winning music licensed by BMI. This is because each songwriter or composer may belong to only one performing right organization at any given time, so each PRO licenses a unique repertoire of music.”

The license fees are part of the cost of doing business for venues. The PRO’s collect the license fees and pay the royalties to the artists and/or songwriters (of course they take a percentage for administration fees).

As always, there are exceptions to who must have a license…

• The biggest exception to the general rule is more of a misunderstanding than an exception. It can occur when your band puts on its own show and depends on where that show is held.

SESAC states, “Q: Who is responsible for music licenses for rented/leased areas such as meeting/banquet rooms, reception halls, or ballrooms?

A. The Copyright Law of the United States, and subsequent case law assigns the responsibility for obtaining authorization for copyrighted music played in rented or leased areas to the owner/operator of the establishment.

So, let’s say for example that you own a large chunk of land and ask several bands to come and play with you, the event is not just for friends and family as the public is invited. At that point your band becomes the concert promoter and venue. So, you are responsible to get the license.

The ways around this are:

Get all the bands to agree not to play any cover tunes. When bands only play their own originals no license is required.

Or

Keep the event closed to the public, inviting only your “normal circle of family or friends”.

But, if your band does the same show in a hall that you rent, the owner of the hall must pay for the license and all the bands are free to perform cover tunes.

• Another “loophole” is found for worship services. Here’s what ASCAP has to say about it:

“Permission is not required for music played or sung as part of a worship service unless that service is transmitted beyond where it takes place (for example, a radio or television broadcast).”

It is important to note that a song with Christian lyrics or is written by a Christian artist is NOT automatically exempt. The exemption has to do with how the song is being used (I.E. the worship service) not who wrote or performed it. But, be careful with saying that every time your Christian band plays out is a worship service. It is probably not true and most likely will not hold up legally. If you are going to try this, be sure to consult with a knowledgeable entertainment attorney.

Note: The license information you see at the bottom of your lyric screens during Sunday service is not the same as the performance license we are discussing in this post. This CCLI license specifically covers projecting and printing the lyrics. CLICK HERE to learn more about a CCLI License.

• And, of course, there is the educational “loophole”:

“Performances as part of face to face teaching activity at a non-profit educational institutions are also exempt” according to ASCAP.

Overall, the law has been pretty well clarified to state that you as a performer do not have to be licensed to perform cover tunes. It is up to you if you want to ask to see if the venue you are playing has licenses, but you are legally not held responsible to do so. Honestly, many smaller venues do not get licenses; it’s one of those “we don’t know so don’t ask, don’t tell” things. Most secular bands never ask, some Christian bands want to know. I definitely at least ask halls I rent when I put on my own shows to make sure they have licenses. If they do not, I do not rent that hall.

Pay special attention to this one exception:

Ideally, your bands cover tunes should be songs that the audience will recognize and so should already be hits. But, if you are covering a song that has not already been made famous, you should ask permission before you start performing the song. For example: If your friend writes a song and your band wants to cover it be sure to get your friend’s permission (preferably in writing) first. The reasoning behind this is that unless your friend is a professional songwriter they are probably not members of any of the PRO’s. So, none of the licenses the venues have apply to your friends’ song. Or, if your friend is a professional songwriter and a member of a PRO, they will probably try to sell the song to someone who is already famous. They may or may not want you to perform it first.

Lastly, you should know that performing a cover tune live is not the same as recording a cover tune. If you are going to record a cover tune, make sure you understand and have a mechanical license.

Remember that I am not an entertainment attorney. This post is a good overview of the topic of performance licenses, but obviously does not include every circumstance. Need more info? Do not rely on hearsay (everything you read on the internet is not true). Go straight to the sources. Here are the PRO’s links:

ASCAP FAQ’s

BMI FAQ’s 

SESAC FAQ’s 

Do you need more information about

Working with Performance Rights Organizations?

CLICK HERE

 

The Christian Band Handbook

 

The Christian Band Handbook

has much more information to help you

build your fanbase and in crease your ministry.

CLICK HERE

to get your copy today.

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