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.
I have been in many yoga classes where, at the beginning of class, the teacher asks whether any students have an injury. Sometimes the students describe their injuries openly in the class. Other times the teachers visit with the students privately (usually in child posture) because some students may be reluctant to discuss their injuries in front of the class.
The teacher then begins the class. However, rarely do I see the teacher paying special attention to the injured students. I think this is for several reasons. First, if the class is large, the teacher may not have the time to run the class and spend the time on the injured students. Second, the teacher may not have the expertise to give personal guidance to students who may have a broad range of injuries and conditions. And third, some teachers may find it difficult to remember which students are injured and what their injuries are while they are teaching their class.
Should Teachers Ask About Injuries Before Class?
How does the legal system treat a teacher who has actual knowledge of a student’s injury, does not give the student personal care during class and the student suffers an injury? Is the teacher in a better position or a weaker position because they have knowledge of the student’s injury as a result of asking at the beginning of a class?
From a legal point of view, a teacher who asks about pre-existing injuries and has actual knowledge about an injured student is in a weaker legal position than a teacher who does not ask and has no actual knowledge about injuries.
If a teacher has actual knowledge that a student is injured, the law imposes a duty of reasonable care on the teacher to monitor the student and ensure that he or she does not aggravate the injury. If the teacher does not fulfill this duty, then the teacher may be found liable for the damages if a student is injured.
Teachers must fulfill their duty of care even though it may be very difficult to monitor several injured students in a large and dynamic yoga class.
If I Have Actual Knowledge of a Student’s Injuries, What Should I Do?
You must pay special attention to your injured students and suggest modifications to prevent them from aggravating their injuries. In special cases, you may need to suggest that the student attend a different class. For example, this could include pregnant students or beginning students who are injured but who want to take an advanced class. If you are teaching yoga in a hot studio, then you should be even more cautious in taking care of your injured students if it is not appropriate for their situation.
In my many discussions with teachers about this situation most want to know about their student’s condition so that they can offer compassionate support in class. But the question remains: do you have the competence to care for injured students and can you fulfill your duty of care for those students in the context of a large and dynamic yoga class?
If the answer to these questions is “no”, then you should not be asking students at the beginning of class if they have any injuries.
If I Don’t Ask About Injuries, How Should I Teach?
But what should you do if you decide not to ask about injuries in class? I recommend that you make a general announcement at the beginning of class that students should modify their poses to “keep themselves safe” or to “honor their bodies” or similar language. You should emphasize that those students with injuries should exercise special caution to care for themselves. In addition, you should offer several different modifications to the class for your poses. This is important because many students do not know how to modify their poses and simply telling them to modify will not offer them very much meaningful guidance.
What If a Student Volunteers Medical Information?
What should you do if a student volunteers information about a medical condition? Since you have actual knowledge of the condition, your duty to take reasonable care of that student has been triggered and you should do all you can to give that student special attention to protect he or she from injury. It may seem somewhat unfair if you did not ask for this information but it is the right thing to do both from a legal and a yogic point of view.
We should contrast this with those teachers who offer classes that are intended to teach students who have injuries or serious medical conditions. For example, I know a teacher that offers classes for students who have cancer. I know another who has classes just for runners. In those cases the teachers have special training and are competent to take care of the students. Also, if everyone in the class has the same medical situation, it is much easier for the teacher to offer a class that is appropriate for all of the students.
Medical Information on Release Forms
A related question is whether you should solicit medical information in a form of release or a new student questionnaire. In my experience, this is fairly common practice with yoga studios.
However, I do not think it is a good idea to gather medical history from your students because this practice raises many practical and legal questions.
Are you prepared to keep the student’s information strictly confidential and implement a security process? Are you prepared to require your students to update their condition if it changes? What about your existing students who provided you with information about their medical condition but it subsequently changes? Do your teachers actually review the information about all of the students who are in their class before the start of class and use the information? Are your teachers trained and able to give individual attention to each student’s medical needs within a class setting?
From a legal point of view, the problem is much the same as soliciting information about injuries at the beginning of a class. If you have actual knowledge of a student’s medical condition that you obtained from a questionnaire, then you have a duty to use reasonable care to protect the student from further harm.
However, as you can see, there are lots of practical problems with protecting sensitive medical information, keeping it current, and giving it to your teachers so that they can properly use it.
Signing a lease is one of the most important economic actions that you will take as the owner of a yoga or wellness studio.
The key point of this post is that you must read, understand and negotiate your lease. There is no such thing as a “standard” lease and you should never accept the form that is provided by your landlord. It will always be written in the landlord’s favor.
All terms of a lease are negotiable but your leverage depends on whether your local rental market is hot or cold. If plenty of commercial space is available, you may win some concessions. If your rental market is tight, you may have less leverage. Always remember that a bad lease can harm your business.
Here are 20 key points to consider in negotiating any lease:
1. Personal Guarantee. Are you obligated to personally guarantee the lease or is it an obligation of your legal entity? Naturally, you want to sign the lease in the name of your entity. If you sign it in your personal name, you are personally responsible for all liabilities arising under the lease. These include rental payments and indemnity.
2. Landlord Build-outs. Many disputes result from the landlord’s obligation to build out or modify the leased space. Make sure that your lease has a clear description of the landlord’s obligations. What is the landlord obligated to do, what are you obligated to do, how much will it cost, who will pay the cost and who is responsible for cost over-runs? You need to have a firm completion date in writing. What if the landlord does not complete the build-out on time and your opening is delayed? Will the landlord pay a penalty or abate rent? I have seen several studios forced into delaying their openings because the landlord delayed completing the construction.
3. Zoning. Do the local zoning laws permit a yoga studio business in the space that you are leasing? Make sure that you know this for a fact; do not rely upon statements by landlords and leasing agents. Studio owners have signed leases and then found out that their space was not zoned for a yoga studio. Check with the local municipality for zoning, license and inspection requirements before you sign the lease.
4. Lease term. What is the term of the lease, and can you extend the lease? If you elect to extend the term, what is the rental rate? Is it the same or does it go up for the extended term? Do not be afraid to negotiate your rental rate and your lease term! A short-term lease is usually to your benefit. Shorter leases give you more flexibility if the needs of your business change — for example, you want more space or decide that a different location would be better. However, a long-term lease ensures that you’ll have an affordable space for a longer period of time. Landlords are often inclined to make more concessions on long term leases than short term leases.
5. Security deposits. Make sure that the lease is clear on how you get your security deposit back. Under what circumstances can the landlord withhold your security deposit? Is it clear and is it fair? Some leases require that the tenant give written notice of the expiration of the lease as a condition to the landlord’s obligation to return the security deposit. Put the notice date on your calendar.
6. Use of the Space. Make sure that the scope of use in the lease is broad enough to allow you to expand your business. Can you open a boutique, a tea shop, or provide massage therapy? After the lease is signed, it may be hard to convince the landlord to let you change your business. Your business may expand and you do not want your lease to block your plans.
7. Parking. What about parking? How many parking spaces do you get and do you have to pay for additional parking? Is there enough parking if your business grows?
8. Subleasing. You may want to sublease a portion of your space or you may want to leave the space before the end of the lease. Make sure that you have the right to sublease. Negotiate language that the landlord cannot deny your right to sublease unless it has a commercially valid reason. Your right to sublease should not be at the landlord’s discretion. You will probably remain liable on the lease if your sub-lessee does not pay the rent, but at least you will have this important right.
9. Signage. Do you have the right to put up signs on the building? What are the landlord’s restrictions on your signage?
10. Rules and Regulations. Many leases require tenants to comply with the landlord’s rules and regulations but these are often not provided with the lease. Make sure that you review a copy of the rules and regulations before you sign the lease.
11. Heating and Cooling. The lease should be clear on the landlord’s obligation to heat and cool the space. Do you have control of the temperature of your space or is it centrally controlled?
12. Location. Before you sign the lease make sure that the location is appropriate for a yoga studio. How does natural light look throughout the course of the day? How does the energy of the space feel? Who are the tenants? Are they noisy and will they disturb your classes? Are there complimentary businesses in the area which may be willing to refer students to your studio?
13. Rental Rates. Negotiate the rental rate. Make sure that you know what similar spaces are renting for in the area and use your knowledge to negotiate a fair rental rate. Be careful about automatic increases in rent if you want to extend the term of the lease. Some leases include an annual increase to your rent. If the landlord insists on this provision, try to get a cap on the amount of each year’s increase, and try to exclude a rent increase for the first year.
14. Hidden Expenses and Utilities. Landlords often include extra expenses such as maintenance fees, upkeep for shared facilities (common area maintenance) and so on. What about utilities? These charges are usually the responsibility of the tenant but how are they measured? Are they individually metered or apportioned by the square footage? Be sure that you understand all of these “hidden fees” before you sign the lease.
15. Repairs and Upkeep. Even though the landlord owns the building, you may be responsible for repairs and upkeep. Commercial leases vary in their approach to this – some provide that the tenant is responsible for upkeep and repairs while others state that the landlord is responsible. Understand and negotiate your lease.
16. Default. You may lose your lease if you default. This may occur even if the default is unintentional. What is a default? If you default, will you be locked out immediately? Do you have an opportunity to cure the default? What is your cure period?
17. Gross and Net Leases. Be very clear as to whether the landlord will pay utilities, repairs, taxes and insurance. With a “gross lease,” your rent includes these costs. However, with a ” net lease” you pay for these items separately.
18. Don’t Negotiate Your Lease In “Panic Mode.” You may be in a rush to sign a lease to launch your new studio or maybe your business has grown so quickly that you want to lease a new space. These pressures can affect your ability to negotiate the best deal for your business. It is important to remain open, flexible and creative about your lease and your space. Don’t let yourself become desperate; landlords are expert at sensing this and it will put you at a disadvantage.
19. Don’t Be Attached to One Property. You are putting yourself at a huge disadvantage if you decide that a particular space will “make or break” your business. Always negotiate knowing that, if you can’t get a fair deal, your business will thrive elsewhere. I have seen situations where the owners fell in love with a space and were willing to make large concessions. However, when the deal fell through, the owners found an alternate space which was much better than the original!
20. Get Representation. It is wise to find an expert to help you negotiate your lease. This could be a commercial real estate broker who knows your location or a lawyer. If you use a broker, make sure that the broker is not also representing the landlord. This is a conflict of interest and you will lose.
All yoga teachers and studios must obtain a release of liability from each student. An effective release will place you in a better position to negotiate a settlement if a complaint for personal injury is brought against you and may provide a defense to a lawsuit.
The release is an important barrier to liability because a studio or teacher may not be protected by their insurance policies. Some examples are the claim being excluded from coverage, failure to pay the premium so coverage has lapsed, the insurance company wrongfully denying a claim, the value of the claim exceeding the limits of the insurance policy, a failure to report the claim within the time limits of the policy, or a bankruptcy of the insurance company.
Elements of An Effective Release
A well-drafted release should describe all of the services and activities provided by the studio; require the student to assume the risk of harm from participating in the activities; waive all claims against the studio, owners, teachers and independent contractors; require the student to agree that he or she will not engage in any inappropriate conduct; and require the student to represent that he or she is in good medical condition. If you intend to take photographs or videos of classes or workshops, you release must include permission to do so.
Make Sure Teachers Are Covered
The release of liability should include teachers within the definition of the parties who are covered by the release. My review of many forms of releases routinely used in the yoga world shows that most do not include the teachers within the scope of the release. Therefore, if you are a teacher you may not be covered by the release! Since it is impractical for the teachers to get students to sign a second release protecting the teachers, the studio’s release must cover the teachers. Studios and teachers should review their form of release and make sure that it covers both the teachers and the studio.
Private Lessons and Releases
If you teach private lessons, you should have your students sign a private student agreement. This agreement should cover such matters as release of liability, general health information, information about the student’s wellness practice and problem areas, privacy, cancellation policy and teaching rates. An agreement will establish the rules of your relationship and lessen the chances of a disagreement with your students. Even if you decide not to use an agreement for your private lessons, make sure that you get a release.
If you are teaching a workshop at a studio, you must have a release of claims from each student. However, you cannot assume that the studio’s standard form of release will cover your workshop. Make sure the studio’s form covers you (as the workshop presenter), the students who attend the workshop and the workshop itself. Because some forms of release only cover regularly scheduled yoga classes, it may not cover an extraordinary event such as your workshop. Be aware that many studios neglect to get releases from people that attend workshops but are not regular students.
If you are leading a retreat as an individual teacher or as a studio, you must get a release from every student who attends the retreat. You should have your students sign a retreat agreement to cover you from the many risks inherent in travel and attending retreats. The release may be included within the retreat agreement. Obtaining a release is important for international retreats due to the additional risks inherent in foreign travel. These may include health, fitness and vaccination requirements, visa requirements, political, military or weather developments, and local medical treatment.