A Primer on Playing Music in Retail Stores and on Websites

By Corrine Conway & Barbara F. Dunn

Business owners and their employees want to make people feel welcome when they visit the business. One way to make visitors feel more welcome while they shop is to play music or to have videos or audio recordings on the business’ website, which attracts potential customers. However, from a legal standpoint, you cannot simply plug your MP3 player into the store’s speaker system and jam away, nor can you download any old MP3 off the internet and edit it into your video for your website. There are a variety of requirements on how and when you can use music in your retail establishment and when promoting your products. That being said, there are ways to use music for retail purposes in compliance with laws, and perhaps even without spending money.

When it comes to retail stores, playing music in a store technically is a type of performance, and as such, copyright laws apply to playing music in a store. Performing rights organizations, namely BMI (Broadcast Music Inc.), ASCAP (American Society of Composers, Authors, and Publishers), and SESAC (Society of European State Authors and Composers), represent authors and composers of music and enforce their copyright ownership in such music. These performing rights organizations monitor businesses that are playing music without having first entered into a licensing agreement with them. These performing rights organizations can demand that the business enter into a licensing agreement with them in order to play music for which the performing rights organization is representing the author(s) and/or composer(s) of such music. If businesses fail to do so, they can face significant fines as a result.

Licenses are permission slips that allow for places like stores and restaurants to play music protected by copyright for a fee that usually is paid annually. Common types of licenses include licenses to perform a work publicly, “blanket” licenses, which cover a broad variety of rights, and synchronization licenses to play music in videos. Licenses almost always are required to play, to re-record, or to otherwise use copyrighted music in a retail establishment.

Annual licenses can cost upwards of $500 dollars a year, though they might be a worthwhile investment for larger retail operations. These licenses can be obtained through the same performing rights organizations that monitor compliance with copyright laws.

While licenses often are used to ensure retailers can comply with copyright laws, there also are several exceptions as to when a license is needed for certain establishments. For example, stores that are less than 2,000 square feet in size can, in some instances, play music that is copyright-protected by using a radio or a television without paying a fee, though there must be six or fewer speakers playing the music.

Another exception as to when a license is needed is the public domain exception. Music is in the public domain when copyright protection lapses after a certain period of time (and sometimes in other less-common circumstances). Information on what music is in the public domain can be found through the Public Domain Info Project Website (pdinfo.com). Some artists also make copyright-free music for those who do not want to pay licensing fees. This music can be found with a simple internet search.

When deciding on whether to obtain a license to play music in your store, one thing to remember is that customers themselves cannot be charged the requisite fees for the copyrighted music that is played. Also, if your business has stores outside the U.S. or uses music by non-U.S. based artists, there may be different rules that apply, depending on the country. When it comes to streaming music from platforms like Spotify and Pandora, things get even more complicated. Checking out streaming platforms’ unique rules along with general copyright law is paramount. There are differences between the personal license you get to listen to Spotify for yourself and commercial licenses, which are designed for use to a broader audience, so reading the terms and conditions for these platforms is important.

When using music on your retail website – whether on the site itself, in videos, or on social media – there also are exceptions for licensing, but many of those exceptions are not clear. Beyond that, there are even fewer clear answers on what exceptions for licensing are placed on music played on a retail website or social media page. Syncing up music from audio recordings to video recordings also is complicated, and likely requires obtaining a separate license to do so, along with the license needed to use the audio recording.

Given the ever-changing nature of the internet, caution is advised as complicated copyright issues may require that a business owner needs permission to use the music, permission from the artist, and also legal assistance to ensure that you avoid implying an artist is endorsing or sponsoring a store’s goods. Additionally, it is important to review terms and conditions on social media platforms before posting any music in connection with advertisements or promotions.

While music is an important part of promoting your business, it’s best to look before you leap:

Determine music you want to play
Determine how you want to play it (e.g., store, website)
Determine whether a license is needed
Enter into licensing arrangements as needed
If using a video production company, check to ensure that they understand all the requisite copyright rules to ensure the video will be compliant.

Corrine Conway is a second-year summer associate at Barnes and Thornburg, hoping to pursue a career in trademark and copyright law. She is also admissions editor for the University of Illinois Elder Law Journal. She can be reached at corrine.conway@btlaw.com. Barbara Dunn is a partner in the Chicago office of Barnes & Thornburg LLP, where she assists both nonprofit and for-profit companies on a variety of legal issues. She can be reached at bdunn@btlaw.com or 312.214.4837. This article shall not be considered legal advice. In all cases, groups should consult their legal counsel. ©Copyright 2021. Barnes & Thornburg LLP. All rights reserved under both international and Pan American copyright conventions. No reproduction of any part may be made without the prior written consent of the copyright holder.