Do I need to pay to perform cover songs at live music venues?

December 6, 2011

Dear Music Lawyer,

I am in a cover band. I've been reading about the need to pay songwriters mechanical royalties if I record their songs and release them on my albums. Do I need to pay the songwriters to perform their songs at nightclubs?

—Jonas

Dear Jonas,

Very good question. Performing copyrighted songs implicates the copyright owner's exclusive right to publicly perform a work and to authorize others to publicly perform it. Public performances of copyrighted music at live music venues, with limited exceptions, require payment. However, it is generally the responsibility of the venue owner (i.e., the presenter of the public performance), not the performer, to obtain a public performance license and pay any required licensing fees.

As a practical matter, venue owners obtain blanket licenses from the performing rights organizations (ASCAP, BMI, and SESAC, in the U.S.) to have the right to present musical performances at their venues. That's because it's not feasible for venue owners to research the ownership of each song and negotiate individual public performance licenses. (Imagine the venue owner requiring you to give them your set list weeks in advance and making you promise not to deviate from the list!)

Performing rights organizations (or PROs) also serve the songwriters and publishers who can't be expected to police all the venues in the country to see who is performing their music. Of course, the PROs only pay out to those songwriters and publishers who have affiliated and have registered their songs in the PRO catalog. Therefore, it's important for songwriters and publishers to keep their catalog up-to-date to ensure that they are getting the most public performance monies.

TIP: BMI now has a program called BMI Live that allows BMI performing songwriters to submit set lists for their live performances and thus collect performance income from their own live performances of their songs.

—Amy E. Mitchell