ASCAP is the American Society of Composers, Authors and Publishers. It is a membership association of more than 500,000 composers, songwriters, lyricists and music publishers of every kind of music. It represents hundreds of thousands of music creators worldwide.
ASCAP protects the rights of its members by licensing and distributing royalties for the non-dramatic public performances of their copyrighted works. It licenses music to all who want to perform copyrighted music publicly.
An ASCAP license authorizes performances of millions of copyrighted musical works in the ASCAP repertory and in the repertories of affiliated foreign performing rights organizations representing over 100 territories. ASCAP announced that it distributed over $851.2 million in royalties to its members in 2013, an increase of nearly $24 million over 2012.
ASCAP has discovered that yoga studios are a source of licensing revenues and are now targeting the community. ASCAP has been sending demand letters to yoga studios which require them to purchase a license for the performance of music within the studio.
Playing music in a yoga studio is considered a public performance of music which requires the permission of the owner of the music. The permission requires the payment of a licensing fee. Because studios are receiving an economic benefit from playing music to enhance the experience of the students, it strengthens the claim that the owners of the music are entitled to payment of a license fee.
The most recent ASCAP letter that I have seen requires the payment of royalties because a yoga studio is considered a “dance school” within the definition of the ASCAP license. A “dance school” is a school that teaches “jazz, classical, ballet, tap, modern ballet, acrobatic, gymnastic, square, folk, ethnic, baton, aerobics, yoga, zumba, pilates, hip-hop, fitness, exercise and workout classes.” The fees are based upon tiers of students. These tiers are: not more than 75, not more than 150, not more than 300 and over 300 students.
Unfortunately, the license is only for a year, and you can expect ASCAP to hit you for another license in the second year. The fee is also adjusted annually based upon he Consumer Price Index.
As a practical matter, there is very little you can do. ASCAP has lawyers, money and are experts at extracting licensing fees. If you decide not to pay the fee, ASCAP will ramp up the pressure until you do and you may be at risk for an infringement action. The fine under the Copyright Act for a public performance violation can be as high as $150,000 per occurrence (i.e., per song played).
You may also be at risk for paying fees to the other two licensing agencies which are similar to ASCAP: BMI and SESAC. Yoga Alliance has advised the following:
“However, if you pay licensing fees to ASCAP, that won’t protect you from BMI and SESAC. A public performance without permission of even one musical work from within either company’s catalog triggers the obligation to pay royalties for use of their entire catalog. Furthermore, paying ASCAP may make it more likely that you will subsequently face demands from BMI and/or SESAC to pay them licensing fees as well. So the only way to eliminate all risk is to pay licensing fees to all three companies…”
In my workshops, my advice has been for studios to play as much music as they can that is covered by a blanket license. This is music from Pandora and Spotify, and other sources which have ASCAP blanket licenses. Then you have an argument that only a portion of your studio’s musical performances are infringing. Using live and original music may help your argument. This may give you an argument to lower your license fees.
You may also be able to use music that is in the public domain (old music that was composed before the early 1900s) or music that is made available royalty-free through a Creative Commons license. These options are not attractive because it will be difficult for you to find appropriate music that is outside of the scope of ASCAP and, even if you do, you may still get hit and be compelled to pay the ASCAP licensing fee. It is legally complicated to determine if music is in the public domain or if it is being used within a Creative Commons license.
Another approach is to take the position that the studio is not liable for the music played by its independent contractors (i.e., the teachers). By definition, the teachers are running independent businesses and are responsible for their own music. Many teachers bring their own devices and plug into the studio’s system. The studio is only responsible for music played by its employees. A studio may be able to use this argument to negotiate getting into the cheapest tier.
Obviously, this approach would not be popular with the teachers! Also, ASCAP may take the position that it will base its calculation of your license fees upon the number of students in the studio, irrespective of who is playing the music.
Last, I understand that Yoga Alliance is planning to contact ASCAP, BMI and SESAC to determine whether they can negotiate a special deal for yoga studios. I wish them the best of luck on this but chances of success are low.