Can I play music during a photo shoot?
Topic: Business, General Legal
Time Investment: 7 Minutes
Suggested Product: BizRevamp®
Whether inside or outside, sometimes you just want to help your clients relax and allow their personalities to shine.
One way some photographers do this is to play some music before or during the photoshoot.
It makes sense, music has a wonderful ability to evoke positive emotions and to encourage people to drop some of their nervousness and inhibitions.
But, here’s the thing: can you play music during a photoshoot, legally speaking?
Should you do it? How do you get a license to be able to do it?
In straightforward terms, if music is played in your studio for customers or staff; for example, through radio, TV, or by electronic means (a Bluetooth speaker, a CD or even your phone) or at live events, it is considered to be a “public performance.” In order to legally play music as part of your business, even if it is not a product you sell, you need a license.
There are some specific exceptions to the need to obtain a license to use copyright music in the course of your business. You do not need such a license for your personal use, that is, if you make one recording of your playing for yourself, or play music for yourself at home, however, you may need a license to play music in your home studio, if you have an employee, contractor or meet with clients there.
You can play music via the radio in your home and car for your personal enjoyment without an additional license. This is because the radio station already has a “blanket” license to broadcast the music you enjoy for free on your radio. So too, most event destinations or buildings have a ‘blanket’-license, so you are covered, however, you might be required to make a list of the music you performed, so make and keep a record of it for yourself – always.
Courts have been known to request a list of all music played at an event nearly a year after the event – could you recall every song you played at a photoshoot one year ago?
Even if you buy music files this does not include the right to use them for public performance, and if you duplicate recorded copyright protected music, say like a mix CD, you need a “mechanical rights” license.
The Copyright Act of 1976 states you need to get permission from the copyright holder to “perform” music in public – and a music license grants you this permission. There are a number of companies who allow you to purchase an annual license to play music in public.
Be aware that you may need more than one of these licenses to play specific music (for example, the songs or the catalogue of a specific artist may not be available under every license). Determining which agency is responsible for your licensing depends on the country you live in and the kind of music you are looking to play.
Agencies in the US include: ASCAP, Harry Fox Agency, Christian Copyright Licensing International, BMI.
In the UK, you may need a PPL (Phonographic Performance Ltd) licence if you play recorded music in public. PPL collects and distributes money for the use of recorded music on behalf of record companies and performers. In most cases you’ll also need a PRS for Music licence to legally play recorded music in public.
For Canada, look at SOCAN, and for Australia – APRA AMCOS, and PPCA.
It is important to note that you need a license to play CDs or from recorded electronic means in a workplace setting.
Can’t I just turn on the radio?
Permission for radio, streaming or television transmissions in your place of business is not needed if the performance is by means of public communication and uses a limited number of speakers or televisions, and if the reception is not further transmitted (for example, from one room to another), and there is no admission charge to hear the music.
If your studio space is under 2000 square feet (in line with the definitions provided by ASCAP) you are exempt from paying fees for playing radio or TV broadcasts for your customers. What you cannot do is have a transmission system, including bluetooth, that transmits that radio signal to speakers in different rooms without being in possession of the appropriate license. You could have a radio in each room as long as the total workplace is not more than 2000 square feet, and then not need a music license.
If you want to use a streaming service, both Pandora and Spotify offer business use licensing.
Physical Studio Space
The Music in the workplace license offered by ASCAP is based on physical locations. We asked ASCAP for clarification on what licenses they thought Photographers might need and for the variation in locations that photographers can undertake their work, they suggested that the Music in the workplace license is the appropriate one to secure.
This kind of license would cover all use of music in your business (excluding selling products that include music) – including on hold music, and music in your studio or waiting area.
But, you may not necessarily need to secure an ASCAP license if your studio meets specific size requirements and you are not using music in your workplace other than playing radio or TV broadcasts. This exception is because the Music Licensing Act draws the line between private and public in terms of the type of public establishment, the physical size, and the type of stereo equipment in use.
A photography studio would likely be classified as a retail establishment, and as such, if they are under 2000 square feet are exempt from paying fees for playing radio or TV broadcasts for their customers.
On-location Photo Shoots
While the general rules for licensing of music in public places indicate that public places of any size that play radio or TV broadcasts are exempt from paying fees if they use no more than six external speakers (not more than four speakers in each room) for playing music, public places that play CDs or hire live musicians (including those that play cover songs) are still subject to paying licensing fees.
On-location photo shoots may be held in a public place, but they may not. According to ASCAP, a music in business general license would cover a photographer for on-location and in studio shoots.
What does this mean for your business?
If curated photoshoot experiences are part of your business model and these involve music, obtaining the appropriate music agency license is good business, but as with all things license related, start by evaluating how you wish to utilize music in your business before deciding how to ensure that you have secured the appropriate licenses.
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