By guest author Keeley Mitchell, Zi Living
Yoga classes may be conducted in silence if ASCAP, BMI, and SESCAP keep going after yoga studios for music licensing fees.
You may have noticed that The Business Side of the Mat took a hiatus when the New Year rang in. However, The Business Side of the Mat is back with even more juicier legal and business advice for yogis.
During my hiatus, a growing issue in the business world of yoga took center stage in the United States. My phone started to ring off the hook with clients and associates of clients who were receiving notices from ASCAP. You may have recently been contacted by this association requiring that you pay music licensing fees for the music you play in your classes. If you have been contacted by ASCAP or a similar organization, take a deep breath and keep reading.
I know many yogis out there are stressing about the notices they have received about owing music licensing fees. While there is some debate as to how this issue should be handled by the yoga community, you should not ignore these notices by any means. If left unattended, the issue can easily snowball into a nightmare.
So get settled on your mat in a comfortable pose. Child pose may be the perfect pose as I work through the issues with you. After all, child pose relaxes your spine and shoulders; areas we commonly carry stress.
Who is ASCAP, BMI, and SESCAP?
The first thing that you need to know is what is ASCAP and its purpose. ASCAP is an acronym for the American Society of Composers, Authors and Publishers. This association represents more than 400,000 members who are composers, songwriters, lyricists, and music publishers. The members represent all kinds of music and countries all over the world.
ASCAP is not the only organization that represents music creators. Both Broadcast Music Inc. (BMI) and Society of European Stage Authors and Composers similarly represents people who create and publish music. Together, BMI and SESCAP represent over 600,000 composers, songwriters, and music publishers worldwide.
These three organizations main purpose is to protect the rights of its members. ASCAP, BMI, and SESCAP license and distribute royalties for the public usage of their members’ copyrighted work. They collect license fees from those who want to publicly perform or play the music of their members. Then, they distribute royalties to their respective members.
ASCAP announced recently that its distribution of royalties to its members increased significantly from 2012 to 2013. In 2013, the association distributed over $851.2 million in royalties, which is an increase of almost $24 million from 2012. As the numbers indicate, ASCAP is actively collecting licensing fees on behalf of their members.
Why are ASCAP, BMI, and SESCAP bothering yogis?
So what does all of this have to do with yoga studios and yoga instructors? Why would ASCAP and the other associations be concerned with yogis? The simple answer is that the multi-billion dollar yoga industry has caught the eye of more than just wanna be yogis trying to be hip.
ASCAP, BMI, and SESCAP are now targeting the yoga community because they have discovered that yoga studios and instructors are an excellent source of licensing revenues. As a result of this discovery, yogis around the world have been receiving demand letters requiring them to purchase licensing rights for the performance and/or playing of music in their classes.
Yes, you guessed it. Whenever you play that soothing background music in your class as you guide your students through asana sequences, ASCAP considers that the performance of music requiring the permission of the creator of the music. To obtain that permission, a licensing right needs to be purchased.
Now, don’t think yogis are being specifically singled out. Music licensing has become an issue for the broader fitness industry as well. PPCA, an Australian non-profit organisation that provides licences to Australian businesses to play recorded music in public, worked with a number of fitness associations to have the Copyright Tribunal of Australia review the rate payable for the use of recordings in fitness classes. Based on the collaboration of PPCA and fitness associations, in particular Fitness Australia, a new rate scheme took effect 1 January 2012, with an expectation it would be phased in over a three year period. For those interested, a copy of the tariff, with the phase in schedule, can be viewed here.
Similarly, in New Zealand, any business, including a yoga studio, that plays music that can be heard by its clients is required to get permission of the copyright holder of the music. The easiest way for a business to obtain the necessary permissions is to obtain a PPNZ Public Performance Music License. PPNZ is a non-profit company established in 1957 to administer the rights of local and international record labels and recording artists within the New Zealand territory.
In the last five years, Fitness New Zealand, considered “the voice of the fitness industry” in New Zealand, has continually worked with PPNZ to ensure reasonable music licensing fees for gyms and fitness classes.
What does a music license cover?
Licensing rights can be purchased such that a fee is paid for one piece of music at a time. Whenever the music is publicly played, a performance fee needs to be paid. However, this method would not be economically feasible for most instructors and studios.
Hence, most ASCAP and BMI demand letters require a blanket license. Such licenses allow the performance of a piece of music to be performed as many times the licensee wants in a year. Often the fees are presented on an annual basis, and licensees need to renew their licenses each year. ASCAP’s annual fees are presented based upon student tiers. The first tier ranges from 1 to 75; the second tier ranges from 76 to 149; the third tier ranges from 150 to 300; and the last tier is over 300.
On the bright side. Yes, I am finding a silver lining in all of this. A license covers the performance of the music, not where it is played. Thus, once a license is purchased, you can play the covered music anywhere in the world you want.
What can you do if you are contacted about licensing fees?
Now, I bet you are wondering how yogis can fight this intrusion. Unfortunately, there is very little that studios and instructors can do. ASCAP, BMI, and SESCAP have the power, money, and legal teams to collect the licensing fees. Failing to pay the demanded licensing fees could land you in court as the defendant in an infringement suit. Note that being found guilty in an infringement action in the United States can cost you as much as $150,000 per violation (i.e., per song played without permission).
However, don’t think yogis in the United States are the only ones susceptible to such threats of litigation. The New Zealand Copyright Act 1994 provides for a maximum $150,000 fine and/or 5 years imprisonment for those who violate the law. PPNZ regularly pursues legal avenues through the New Zealand courts on behalf of the record labels and artists it represents.
Please also note that just because you pay licensing fees to one association does not mean you won’t owe fees to the other associations. The associations have different membership lists and protect different works of art. Thus, the best way to eliminate your risk of being sued is paying licensing fees to all three associations as well as smaller associations such as PPCA and PPNZ.
As a practical matter, most yogis are not financially in position to start paying licensing fees so many different associations. And while ASCAP and BMI boast that their fees are affordable, no yogi really wants to pay licensing fees while on a tight budget. Therefore, my recommendation is try to utilize music that falls within the public domain, is available through a Creative Commons license, or provided through a satellite radio subscription.
Alternatives to paying licensing fees
Music that is considered to be in the public domain is generally music composed before the 1900s. However, obtaining music in the public domain that you actually want to use may be harder than it sounds. If you are up for the challenge, there are websites that provide access to music in the public domain. Try visiting, publicdomain4U.com, pdmusic.org, and freepd.com.
Or, you can obtain a Creative Commons license. Creative Commons is a non-profit organization provides access to a range of creative works legally. By visiting CreativeCommons.org, you can find royalty free music that is made available through different licenses.
Another possible alternative, is purchasing a satellite radio subscription for businesses like SiriusXM. The subscription service handles the royalties to the music creators. By paying the subscription to SiriusXM, you avoid having to pay licensing fees to ASCAP, BMI, and SESCAP.
It should be noted, however, that in some circumstances satellite radio subscriptions may not be substantially lower than the licensing fees charged by ASCAP, BMI, and SESCAP.
Finally, even if you this issue has not reached your neck of the woods, it has grown serious enough for Yoga Alliance to get involved. Yoga Alliance has stated that it will try to negotiate some favorable deals with ASCAP, BMI, and SESCAP on behalf of its yoga members. While Yoga Alliance may achieve some wins on behalf of the studios, but don’t expect the issue to go away entirely. Remember, ASCAP, BMI, and SESCAP have got some powerful attorneys working for them.
Now, there is always the “cross your fingers, do nothing, and hope for the best” approach, which I am pretty sure is the approach most yogis take. I completely understand and get it. Provided you have not received a demand letter, it makes sense for you to take the risk. However, if you have received a letter, then this approach should be removed from consideration.
Whatever you do, don’t ignore a demand letter
Ultimately, if you receive a demand letter to pay licensing fees, you have to decide what is best for you to resolve the issue. You must examine your specific situation, business needs, and budget. Ideally, if you receive a demand letter, you should consult an attorney. An attorney can help assess your situation and what is the best course of action for you.
If you elect not to speak to an attorney, please do not let the alternative be ignoring the letter. You cannot ignore a demand letter. It will only get worse if you do. So if you receive a letter, take a few of deep breaths, and face the issue head on.
So what’s the bottom line?
If you’re a teacher or studio using music to enhance your classes, here are your options:
- Use whatever music you like and cross your fingers you never receive a demand letter.
- Source music that is in the public domain, although this option could limit your selection to boring music prior to the 1900s.
- Stop using music altogether, but where is the fun in that?
- Select an alternative to paying music licensing fees by using music from Creative Commons or a satellite radio subscription, such as SiriusXM.
- Suck it up and play it safe by paying music licensing fees so you can use whatever music you like. Having peace of mind is priceless.
- Or better yet, you can get creative and write your own original music and leave this music licensing issue behind.