Get A Social Media Policy Now!

If your yoga or wellness business has employees and if you are using social media or email to market your business, then you need to establish a social media policy to address a number of important legal and business issues.

Many companies encourage their employees to establish social media accounts and to directly engage with customers. Employees may publish blog articles, post photographs on Instagram or Facebook, and write articles for a wide number of social media platforms.  Most studios use newsletters to announce classes, retreats, yoga challenges, workshops, contests and other news. Many use employees to manage their social media platforms.

In other companies, employees mix business and personal use of social media. Employees may discuss management, staff, products and other matters relating to the company on their social media platforms. In both cases, a lack of guidance on the basic rules of proper communication may result in damage to a company’s reputation, loss of business, copyright infringement actions, and termination of employees. Many of these problems can be avoided by establishing social media policies.

All yoga studios and wellness businesses should adopt a social media policy. Social media policies are just as necessary as discrimination, leave, and vacation policies.

Why is this so? There are four main reasons.

Four Reasons Why You Need A Social Media Policy

1. To Protect Your Business Reputation

A social media policy is a guideline for employees to follow when they post about your company on social media networks. Even the best intentioned employee may need guidance on whether he or she should publish certain posts about your company. If an employee publishes a post that is damaging to your company’s reputation, it cannot be taken back. It will remain on the Internet for a very long time. If you employees know the rules and what is expected from them, they are less likely to make mistakes that cannot be fixed.

A social media policy is an opportunity to state clearly what standards of communication you expect.

2. To Educate Employees About Legal Issues

Generally, employers have the right to monitor their employees’ use of the Internet (including social media accounts, e-mails, and instant messaging) on corporate computers during employees’ on-duty hours. Employees need to understand that they have no right of privacy with respect to the social media posts that they make during the scope of their employment.

Employees must understand that corporate policies on anti-harassment, ethics and loyalty extend to social media both inside and outside the workplace. If an employee attacks or defames the company or harasses other employees online, it can lead to serious consequences work.

Employees need to understand that they cannot post trade secrets, proprietary information, or content that infringes the intellectual property belonging to another person.

For example, Getty Images has been very aggressive about finding unauthorized uses of its images in blog posts by yoga studios. The result is a demand letter and a legal obligation to pay a license fee and damages. This can lead to a bill of hundreds or thousands of dollars.

3. To Raise Awareness About Your Brand.

A social media policy can encourage your employees to post in positive ways that can enhance your brand. Rather than being a list of prohibitions, a social media policy can inspire your employees to help you meet your business goals. It can make sure that your employees are in alignment with the marketing goals and values of your company.

A social media policy can require that employees follow the company’s branding guidelines. These guidelines may govern the use of logos, trademarks, color schemes, or style guides.

A social media policy can educate your employees on how to talk about your business. What words do you use to describe your company and its business? Are there particular values or principles that you want associated with your business? On the other hand, are there things that you do not want associated with your business?

4. To Establish Ownership of Your Social Media Accounts

A social media policy can establish that the company, rather than its employees, own the social media accounts and the followers. It is becoming common for disputes between companies and employees to develop over ownership of social media accounts when an employee leaves the business. This is because employees may have spent significant time building up the social media platforms and may  feel that they should own the accounts. 

Ten Benefits of a Social Media Policy

If you are inspired to adopt a social media policy, then what are the areas that a good social medial policy should cover? What are the benefits to having a social media policy?

Here are ten key issues to consider:

1. It creates a safe process and communication path for employees to share their concerns and problems at the office with management before taking them online. It is much better to solve personnel problems in-house on a confidential basis, rather than exposing them online.

2. It establishes what the company considers confidential information that may not be discussed publicly or posted online. It clearly describes when employees need approval before posting certain types of information. This could include corporate trade secrets, financial information, business plans, documents subject to non-disclosure agreements, content that may infringe intellectual property rights, and similar matters.

3. It establishes clear consequences of an employee’s online behavior. This gives the employee fair notice of the standard of behavior that the company expects, and will put the company in a stronger position if it needs to discipline or terminate an employee for improper posting.

4. It appoints a company spokesperson who is responsible for answering questions about your company on social media or to the press. Employees should have a clear understanding of those sensitive areas they should not discuss or comment on. They should be required to refer them to a company spokesman.

5. It establishes the proper way for employees to engage with others online, especially in those situations that are inflammatory, hostile or potentially damaging to the company’s business. The policy should encourage employees to be polite and agree to disagree with others, especially on Facebook, and Twitter where disputes can go viral very quickly.

6. It discusses illegal conduct. This involves educating employees about the proper use of trademarks and publication of copyrighted material. Posts that comment on legal matters or that are beyond the poster’s expertise should not be published. Misleading or inaccurate information should not be posted. Confidential information and trade secrets should not be posted.

7. It reflects the company’s culture and shows employees how to talk about its culture and values in a positive and honest way. Your social media policy is a great place to articulate your company’s culture and values. Since the conversation between companies, employees and their customers has moved to the Internet and social media, it is important for companies to extend their communications policies to include the Internet.

8. It educates and trains employees about their social media responsibilities. This can go a long way in getting people to think about the content of their post and the potential reactions to their post, before they click “send.”

9. As more companies recognize the brand value created through social media platforms, there is greater interest in owning corporate social media accounts and retaining the follower base that builds up over time. However, because many employees use social media accounts at work, they may believe that the accounts they use during work hours are not company property but are their own personal property. 

If the company wants to own the social media accounts and prevent conflicts with employees over ownership of the accounts, the social media policy will establish company ownership.

10. It shows employees how to respond when they make a mistake in a post. The employee should be the first to respond to the mistake. The employee should be up front about the mistake and correct it quickly to restore trust. If it is necessary to correct the content, such as by editing a blog post, the employee should make it clear that it has done so.

Terminating Employees For Posting Negative Information  About Your Company

The right of employees to post information about their employment is protected by federal law. This means that you, in many cases, cannot fire an employee for posting hostile, negative, critical and even obscene information about you or your company.

Some states, including California, Colorado, Connecticut, North Dakota and New York, have laws that prohibit employers from disciplining an employee based on off-duty publications on social media platform, unless they can be shown to damage the company in some way. There are also federal laws that restrict employers in the same way.

In 1935, Congress enacted the National Labor Relations Act (“NLRA”) to protect the rights of employees and employers.  The NLRA is administered by the National Labor Relations Board (the “Board”).

Under the NLRA, employers may not discipline employees for comments made on social media platforms regarding their employment, unless the employee’s behavior is so outrageous that it loses the protection of the NLRA. 

What is the boundary line of permissible behavior by employees before they lose the protection of the NLRA?

The Board has ruled on several cases and its General Counsel has issued several Memos to provide guidance. In general, these statements balance the right for an employee to publish employment-related speech on social media platforms as protected speech under the NLRA against the employer’s right to protect its business reputation.

Employers must consider disciplining employees for social media communications very carefully. Because the law is rapidly evolving,  employers cannot rely on their common sense judgment alone to guide them; they should get legal guidance before taking any action against an employee for his or her behavior on social media.

Here is where you can get additional information about the NLRB:

https://www.nlrb.gov/news-outreach/news-story/acting-general-counsel-issues-second-social-media-report

https://www.nlrb.gov/news-outreach/fact-sheets/nlrb-and-social-media

Samples of Good Social Media Policies

The Gap and TNT are considered to have very good social media polices. Here are the links:

http://groundfloormedia.com/blog/wp-content/uploads/2012/03/Socialmedia@gap.pdf

https://www.tnt.com/content/dam/corporate/pdfs/Archive/Presentations/2014/tnt_social_media_employee-guidelines_2014en.pdf

Additional Resources on Social Media

I have prepared a comprehensive package of materials on social media policies. This package contains Social Media Guidelines prepared for yoga studios, a Code of Conduct for yoga teachers (which may be included within the Social Media Guidelines), guidance on how you can make sure you own the social media accounts you are using for your business, guidance on how to draft a legal social media policy under the NLRA, and resources on social media policies and best practices.

The package is a PDF and the documents may be copied and pasted into Word or other word processing program. These materials are available for purchase for $10.00. Click on this link if you want to purchase this package:

http://garykissiah.com/legal-agreements/

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California Attacks Yoga Studios Over Taxes!

I am writing to let you know of an important and disturbing development that is threatening the yoga community in California.

The Threat To Your Yoga Studio

The California Economic Development Department (the “EDD”) has been aggressively targeting yoga studios in California to determine whether they have properly classified yoga teachers and other workers as independent contractors rather than as employees. The EDD targets industries that are abusing the tax laws, audits and forces re-classification of workers from independent contractors to employees. The EDD may have set its sights on the yoga industry in California.

I know of eight studios that are being audited in the Bay Area alone. I know of several more which are under audit in Southern California. Although some audits are ongoing, substantial fines have been imposed against yoga studios. I do not know of any studios that have won their audits. If you hear of any audits in your area, please let me know.

The EDD has an agreement with the IRS where they share information about companies that have misclassified their workers. If a studio is audited by the EDD, it may be audited again by the IRS. I have seen this in other States.

If you are audited and lose, you will pay back taxes and penalties. You may be forced to change your business model to employer-employee and your cost of doing business will increase. Your relationship with your teachers will change. You must comply with a large body of employment and tax laws.

Penalties For Misclassification

If you misclassify your workers and lose your audit, you may be liable for state unemployment taxes, worker’s compensation insurance, unpaid payroll taxes, penalties and interest. The EDD can look back three years. If you are audited by the IRS and lose, you may be liable for federal tax withholding, FICA and Medicare payments, federal unemployment, penalties and interest. In 2012, California passed a new independent contractor law. It imposes harsh civil penalties. For each violation, you may face a penalty of between $5,000 and $15,000 in addition to back taxes and other penalties. These may increase if there is a “pattern or practice” of violations.

What Can Yoga Studios Do?

You have three choices:

1. Do nothing and hope you do not get audited.

This is an unwise strategy. Your chances of being audited have now increased. If a studio in your town has been audited and converts to employer-employee, it may report your studio to the EDD because it is at a competitive disadvantage. Audits have been triggered when workers have mistakenly filed for unemployment compensation. The EDD randomly audits businesses. If you do nothing and are audited, you may be following business practices that may cause you to lose your audit.

2. Build Your Case That Your Teachers Are Independent Contractors

Take a very conservative position on classifying your workers as independent contractors and build the strongest legal case to defend yourself. The basic steps are to research and understand the law, complete the IRS and California independent contractor worksheets to assess whether you have properly classified your workers, change your business practices, use professional independent contractor agreements and avoid red flags.

The law in this area is too complex to discuss in this letter but the key legal test is control. The more you control your teachers, the greater the chance they are employees. The less you control your teachers, the greater the chance they are independent contractors.

You should consult with your tax expert, accountant or employment lawyer to get professional guidance on whether you have properly classified your workers.

3. Convert to the Employer-Employee Model

Studios are beginning to convert to the employer-employee model as a way to cut-off the accrual of additional liability and to stop worrying about an audit. This is more common for larger studios or studio chains. Some smaller studios are beginning to convert. You should consult with your tax expert, accountant or employment lawyer to get professional guidance if you want to convert.

Avoid Red Flags

Make sure that you do not have any red flags. Some of these red flags are: (i) failing to get invoices from your teachers; (ii) not using professional independent contractor agreements or using “do it yourself” agreements (or none at all); (iii) supervising your teachers; (iii) requiring teachers to follow a studio manual which makes them do odd jobs around the studio and controls the way they teach; (iv) requiring teachers to open and close the studio and collect money from students; (v) paying benefits or business expenses of the teachers; and (vi) not requiring teachers to run independent businesses.

What Should Yoga Teachers Do About The Independent Contractor Problem?

Many yoga teachers think this is not their problem because the studios are liable for properly classifying their workers. However, yoga teachers have an important stake in this issue. If a studio is audited and loses, it may be driven out of business. This devastates the yoga community and you will lose your job. If the studio survives and converts to employer-employee, taxes will be deducted from your paycheck and you will lose your tax deductions for that studio.

Yoga teachers should bring these issues to the attention of the studio owners and encourage them to make intentional, informed decisions as to the business model they wish to follow. If you work at a studio and see the red flags, provide the studio with a copy of this article and encourage it to get professional help.

My Role In This Situation

My intention is to educate the California yoga community about the alarming actions of the EDD and the effect that an audit and potential tax liabilities may have on the viability of yoga studios. I hope to empower you to understand and comply with the tax laws to reduce your chances of tax liability. I want to see yoga studios build strong businesses so they can continue to provide the benefits of yoga.

I am not a member of the California State Bar, I do not specialize in employment law and this letter is not legal advice. I am not soliciting or accepting any legal representation of yoga studios in California on matters involving classification of yoga teachers.

Here is how I can help:

1. You can buy a copy of my book Light on Law For Independent Contractors. It has 200 pages of discussion and resources on both the federal and state law of independent contractors and employees. It has a chapter on California law. It has both the IRS and EDD worksheets to use for classifying workers. It has model independent contractor and employment agreements. Here is the link if you are interested:

http://garykissiah.com/tees/independentcontractors/

2. You can consult with me from a business point of view to discuss your situation and assess the best way forward. I will be happy to provide you with the EDD Information and Worksheet, the Tax Audit Guidelines, the EDD Worksheet and the IRS Guidelines.

3. You can contact me and I will be happy to refer you to a California lawyer who specializes in this area of the law.

I am very sorry to bring these unpleasant developments to you but I have seen the results of these audits and they are heartbreaking. We cannot continue under the conventional view that teachers are independent contractors because “everyone else does it that way.” Both the IRS and the States are auditing businesses nationally over this issue. They view using independent contractors as abusive and want the tax revenues. I view this is a result of the success of yoga. As money has flowed into yoga and the mainstream media has embraced yoga in everything from advertisements to movies, it has caught the attention of the tax collectors and they are following the money. They want our tax revenues.

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Trouble In Yoga School!

 

Yoga teacher training programs have been expanding at a rapid rate and they have become an important profit center for many yoga studios. However, as a result, I am now getting lots of calls about conflicts between students and the schools.

There have been disputes among students, teachers and studio owners, complaints to state regulatory agencies, harsh attacks in social media and blogs, and lawsuits. Students have accused schools and their teachers of engaging in unethical conduct. These conflicts have become inflamed because students have accused yoga schools of bias, discrimination and unfairness when the schools try to defend or to explain their actions.

These situations can be deeply distressing, time consuming, expensive and damaging to your business.

The fundamental causes of these problems are twofold. The first is that many students are very attached to becoming a yoga teacher. Sometimes this attachment is for the wrong reasons: yoga may be viewed as a life raft, a way out of a difficult life situation or as a way to build a meaningful new career. Some students think teaching yoga is an easy way to make great money and have lots of personal freedom. If a student who wants to be a teacher for these types of reasons does not graduate -regardless of the cause- the result is often a strong emotional reaction.  Frankly, some students are attracted to teaching yoga because yoga has healed their personal traumas. However, the deep work involved in training programs may bring these traumas to the forefront and  lead to emotional instability. If these students are denied graduation, the result can be explosive. The school is usually blamed for the situation.

The second cause is that many yoga schools are young businesses and do not have experience in putting procedures in place to prevent these problems from occurring in the first place. They do not have experience in managing the difficult issues that the intense experience of yoga teacher training tends to create. Professional agreements are not used or agreements are not used at all. Some schools are launching their first programs and learning as they go.

Three Common Scenarios That Breed Trouble

These conflicts evolve from three common scenarios: (i) the student cannot master the material, fails the program and does not graduate; (ii) the student voluntarily withdraws from the school; or (iii) the student is involuntarily withdrawn from the school.

Students Who Fail The Program

Unfortunately, there are some students who are not capable of mastering the material necessary to become a competent yoga teacher. Some students become paralyzed with fear at the thought of standing in front of a class and teaching. Other students may have a learning disability or are not able to master the substantive information necessary to graduate. They may not be able to grasp anatomy, basic Sanskrit, the asanas or yoga philosophy. They underestimate the rigor of the teacher training process.  Still others do not have the emotional and personal maturity or stability to teach yoga. I have seen very delicate situations when a student cannot graduate due to pregnancy or physical disability.

The school may be forced to conclude that the student did not fulfill the requirements of the program. The student is devastated and this can easily lead to a dispute.

Voluntary Withdrawal

Sometimes students may need to voluntarily withdraw from a program for a good reason. The reasons are varied: sometimes it is work or family related, health, financial or other similar reasons. Sometimes students realize that they cannot accept the basic system of yogic beliefs due to cultural or religious reasons and wish to withdraw. In other cases, a student may just arbitrarily quit the program.

Involuntary Withdrawal

Some students may become so disruptive that the school may is forced to remove the student from the program.

I have personally seen situations where a student was so aggressive and adversarial in class that she effectively shut down the entire class so that she could vent or express her feelings.  I know of other situations where students have emotionally “melted down” as a result of the deep work they were doing in the program. This has led to emotional outbursts, erratic and abnormal behavior, and conflicts with the other students and teachers.

In other situations students may find that they intellectually or emotionally reject the basic yogic belief system. Others may find that their cultural or religious beliefs conflict with yoga. These situations may lead to problems in class and result in the program terminating the student.

These situations are dangerous and often lead to disputes that are difficult to resolve.

Strategies to Prevent Trouble

What should yoga schools do to prevent such situations from occurring in the first place? How should schools react when they are faced with one of these situations? How can schools position themselves legally so that they will be in a strong position as they manage their way through these problems?

Only Admit Qualified Students

Yoga schools should carefully screen students before they admit them into their programs. This can be done by adopting meaningful admittance requirements. All schools should use a questionnaire that solicits information about the candidate’s practice and motivations for wanting to become a teacher. A personal statement can also provide insight into the motivations of the student.

It is a best practice for the school to personally interview every student who wishes to enter the program to make sure the student is emotionally mature and stable. Schools should ensure that the candidates have a dedicated and substantial yoga practice. If students are not serious practitioners of yoga, how can they hope to teach?

Some schools are very cautious about admitting students who are on medication for psychiatric issues because they have found that these students may not be stable enough to handle the rigors of the training program or to become a yoga teacher.

Some schools seem to think that the only requirement for acceptance is a credit card application. This practice can lead to admitting unqualified students and to problems managing students. The end result may be the graduation of unqualified teachers. This may damage the brand of your school.

It seems to me that your school’s brand will be stronger if graduates from your school are competent and inspired teachers. We should remember that yoga was originally transmitted directly from guru to student but only when the student was ready!

During the evaluation process, it is a good idea to understand whether the student wishes to teach or to deepen his or her practice. The student’s intentions should be clear and the options that are available to the student should be discussed. Some schools freely admit students into programs to deepen their personal practice and then allow those with the interest and the aptitude to continue in the program if they decide to teach.

Use State of the Art Agreements

It is critical that all yoga schools use a professional agreement for their teaching programs. This will accomplish several things:

(i) you can include the questionnaire and personal statement so that you can determine if the student is qualified to enter your program;

(ii) you can set the ground rules for student behavior in class;

(iii) you can make it clear that graduation is not automatic; i.e., students must pass all of the components of the program to the satisfaction of the school in order to graduate;

(iv) you can make it clear that the school has the absolute discretion to determine whether a student has met the requirements to graduate from the program;

(v) you can set forth your refund policy in three common situations: you expel a student, the student fails the curriculum or a student voluntarily withdraws;

(vi) you can set clear rules around students who wish to deepen their practice and those who want to teach;

(vii) you can require the student to follow an appeal process to your Ethics and Teaching Committee if the student has a grievance with the school;

(viii) you can limit your liability for personal injury and for liability for economic damages (such as tuition fees and loss of potential earnings from teaching yoga);

(ix) you can protect your intellectual property such as teacher training manuals and other materials and impose restrictions on the use of your materials;

(x) you can require that the student follow a Code of Ethics (and revocation of your teaching certification if that is your business model); and

(xi) you can include provisions that will discourage any student from filing a lawsuit or a regulatory complaint.

As a service to the yoga community, I am happy to provide you with a free copy of my template agreement for yoga teacher training programs. If you would like a copy, please email me at lilalabs@gmail.com.

Set Up A Teaching Committee

I recommend that all yoga schools establish a Teaching and Ethics Committee (the “Committee”). This Committee may be comprised of owners, senior teachers and respected members of your yoga community. I recommend three people. The Committee can be quite informal and the members do not need to do anything until a problem arises.

The purpose of the Committee is twofold: (i) to administer your teacher training program and to respond to complaints and problems with students; and (ii) to resolve any ethical problems that may arise in your yoga school or studio (and to administer your studio’s Code of Conduct if you have one).

The Committee establishes a clear mechanism for dealing with teacher training and ethical issues in a structured and objective way. These problems are often delicate and complicated and may have conflicts of interest due to personal relationships between students, teachers and owners.

Many yoga schools do not have a process in place and, when a problem does occur, the owners try to address the situation on a “one off” basis. It is a best practice to already have a Committee in place. A formal complaint and resolution process gives students comfort that their problem will be handled in a professional and objective way.

If you do not have a Committee and a student brings an ethical problem to your attention, it will weaken your legal position. Regardless of the decision that you make on the matter, the student may feel your decision was the result of favoritism, bias or discrimination. Moreover, if you know the persons who are involved, then it is even more difficult for you to make an objective decision due to a conflict of interest.

On the other hand, if your studio has a Committee and it has objectively evaluated the circumstances and made a fair decision, your decision is much more defensible legally and emotionally. It is much easier for a Committee to make a decision and then communicate that decision to the people who are involved, rather than being in the position of having to do that yourself.

I have seen cases where the head of a program determined that a student did not meet the requirements for graduation but the student disagreed and wanted to protest the decision to the studio. There was a conflict among the student, the head of the program and the owners of the studio. If you have a Committee in place, it can resolve the situation based upon an objective review of the facts. Otherwise, you may end up in paralysis between the school and the student and a dispute.

In my experience, students tend to respect the decision of a Committee more that that of a single person. Moreover, the decision of a Committee can be used to rebut any feeling of the student that the decision was based upon favoritism, bias or discrimination.

Time Out

Consider the case where a student has an emotional meltdown, finds that he or she is not ready to teach or is struggling to master the material. The school has decided that the student should continue in the program but the student just needs more time. I have had success in recommending that the student be given a “time out.” This means that the student leaves the program for six months or a year in order to resolve the problem and then comes back to the school for an evaluation. If the school decides that the student is ready to continue, the student is re-admitted.

This solution also works with very “sticky” problems with no clear resolution: sometimes the person moves away during “time out” and the problem resolves itself over time.

Refunds For Peace

In many situations, the student simply wants a refund of tuition. Sometimes they just want their money and other times the refund represents vindication that they were right. I typically recommend that the school provide the refund. In my experience, this can be a relatively cheap way to buy the peace. This may be the right thing to do if the student must withdraw due to health or career reasons or some other valid reason.

If there is a dispute, the student can launch assaults against the school and teachers on social media and there is little that can be done to stop this. The student may continue to harass the school, get a lawyer or file a claim in small claims court.

All of these situations will ultimately cause you more time and expense and anxiety than the refund is worth. Even though you know that you are right and the student is wrong, it may be more efficient to give the refund. Lingering disputes can be draining and some students who feel wronged may feed on the conflict.

If possible, it is a good idea to get a release from the student so the problem is finally put to bed.. The release can also include an agreement that neither the student or the school will make any public statements concerning the situation.

Don’t Try To Graduate The Problem Away

I have seen cases where schools have decided to graduate the problem student just to make the problem “go away.” Although I understand the thinking behind this, I do not feel that this approach is healthy for your school, the students who may encounter this teacher in the future or the greater yoga community. It is better to take the path of “right action” even if it is hard.

 

 

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Stop The Music! ASCAP Is Hitting Yoga Studios For Music Royalties

 

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.