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Copyright office rules against BMI

In a landmark opinion, the United States Copyright Office has affirmed the right of musicians to perform original compositions copyrighted in their own names, and traditional music in the public domain, anywhere they want to, whether or not the venue has a license from ASCAP, BMI or SESAC. The opinion comes in response to an inquiry from Congressman John M. McHugh (R, NY) on behalf of Richard Hayes Phillips, a performing musician.

Mr. Phillips had lost a job as the only musician at Schemmy’s Restaurant in Rhinebeck, New York, after the owners received a series of threatening letters from BMI, a worldwide publishing empire that, along with ASCAP and SESAC, owns the rights to “virtually” every song published in the United States. BMI had demanded that Schemmy’s pay an annual license fee, over and above what they might be assessed for the playing of recorded music, or cease the live performances. Mr. Phillips has never joined ASCAP, BMI or SESAC, nor does he perform any songs licensed by them, nor has he assigned his copyrights to anyone. He decided to contest BMI’s demands.

Marilyn Kretsinger, Assistant General Counsel at the Copyright Office, upheld each of Mr. Phillips’ contentions. In her words, “BMI has the authority to issue a license only for those songs that are in its catalogue of representation.” If Schemmy’s does not “publicly perform songs represented by BMI, then Schemmy’s need not obtain a BMI license.”

Ms. Kretsinger further states, “With respect to the musical compositions that Mr. Phillips has authored, no performance license is necessary since Mr. Phillips is the copyright owner of those songs.” With respect to traditional folk songs in the public domain, if he is “not performing a copyrighted arrangement of a public domain folk song, then a BMI license is not required.”

The opinion has far-reaching implications for independent musicians and for the entrepreneurs who hire them. No venue is in need of a performance license unless one or more of its musicians are performing compositions or arrangements copyrighted and licensed through ASCAP, BMI or SESAC. The copyright owner enjoys exclusive performance rights and, therefore, the exclusive right to profit from their performance.

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