Whose rights are they, anyway?
The chair of my graduate school thesis, Professor Paul Diehl, opined in class one day that if he were ever to be some sort of lawyer or legal expert, he would take up copyright law. It was the end of the eighties, a decade that has come to be both celebrated and castigated in a way I find unnerving since it was the decade in which I became an adult. By the time I was enrolled in Professor Diehl’s class, big hair and leg warmers had given way to rolled-up jeans and rap music, a genre that left me behind, and I was studying creative nonfiction.
Copyright law was changing with the infiltration of computers and the “publish or perish” mentality at research universities. Under the construct of “educational fair use,” my fellow graduate instructors and I all-too frequently created dittos of favorite essays and foisted them upon our students. We were admonished by our department and textbook publishers, and many of us worked around the issue by customizing print-on-demand style reading packets available from some of the major textbook publishers.
Ever since, I have tried to walk a careful line and give credit whenever it’s due; I insisted my children learn MLA-style citations long before their teachers required them to include their source notes in school projects. As an editor I check carefully my client’s footnotes, endnotes and works cited lists, sometimes following hyperlinks for many pages and other times querying “indicate source?” in the margins of their work. I’m aware that when a play is performed, even by a group of high schoolers, or when the artistic director of the local ballet company chooses music for his dancers, the producers must secure permissions if tickets to the performance will be sold.
Nonetheless, I was startled awake by a recent article sent out by Yoga Alliance. Yoga Alliance is the governing body through which yoga instructors register; their newsletter is usually full of information about their business of yoga conference and partnership deals for discounts on yoga pants.
The headline, “Legal Risks of Playing Music in Yoga Class” (Yoga Alliance e-newsletter, August 28, 2014), caught my attention. As a studio owner, I am so often taken aback by a legal risk or wrinkle about which I knew nothing that I should be used to it by now. Not only am I not, but I tend to freak out when I see things like:
You have a few choices for legally playing music in your classes:
Pay the licensing fee to the PRO [Performing Rights Organization] that is requesting payment. You could also decide not to pay the fee, but that would entail a significant risk. While it is rare for the PROs to actually bring an action for infringing on a copyright owner’s public performance right, … 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). (https://www.yogaalliance.org/music-licensing-information, accessed 10.21.14)
With concern, I read the article, clicked and followed the links and thought about which of my trusted advisors I might consult. Since I had a meeting already set up with my accountant, I started with her. It made sense to me, since at bottom line—whether or not Radiant Om Yoga should pay for music licensing—was in part a financial consideration. I thought she might help. She’s amazingly versatile and promised she would share the issue with a copyright attorney/friend. His reply was instructive if not precisely definitive:
It is advisable for your client to get licenses from ASCAP and/or BMI. Those are the two biggest licensing associations. Unfortunately, there are overlapping artists in both associations, so getting a license for both may be somewhat duplicative; but getting a license for only one would mean there are some artists your client would technically not be able to play on a CD or MP3.
For a small business owner it is difficult to determine just what songs you can play in your studio (although there are radio licenses too), so I find that a lot of people are not as concerned as your client is; they just decide to bet on the proposition that ASCAP or BMI would not approach them for licensing royalties. The problem with doing this is that ASCAP and BMI end up wanting past royalties, which can be expensive for a small business.
Generally, ASCAP or BMI is more likely to pursue your client based on the number of customers she has, but they have a bad reputation for being pretty ruthless when it comes to seeking royalties. If there are not many people in her yoga classes, then she might not even be “publicly performing” the work, and in such a case it might not make business sense for her to obtain licenses. (personal email, 9.23.14)
How small is small for class size? Who are these organizations? How do I know what’s playable? If I pay them, how do the musicians actually get their piece of the pie? Radiant Om Yoga’s third birthday came along and I put aside the music quandary for a bit. Then I had an appointment to discuss all things yoga with a trusted friend who is also a teacher and a studio owner, and I pulled together my online research to show her and discuss our options.
As I understood it, my options were: shut up and pay the license fees, move to some sort of music provider like Sirius that has a legal avenue for business to play music at their locations, wholesale with license to play a few CDs, or take the stereo out of the studio and cease playing music all together.
That was on a Friday. The very next Tuesday I got an unsolicited email from ASCAP (The American Society for Composers, Authors, and Publishers) offering to save me tremendous time and effort if I would just please sign the contract to license music-playing in my studio and send them a check.
I remain suspicious that Big Brother Internet somehow reported my searching, but the ASCAP rep I spoke to on the phone, after more consultations with the lawyer, insisted that they are researching and contacting every yoga studio, that her region was Des Moines. Okay, I asked her, just how do the musicians make money from the sum I’m paying you?
“I don’t really know that,” she answered. “I do know you’re paying the reduced rate for yoga studios,” this negotiated on our behalf by Yoga Alliance. I asked for a few other changes in the contract, corrected their spelling of Windsor Heights, and asked her to send me a new file. Radiant Om Yoga would toe inside this particular legal line, alongside taking the fire extinguisher to be officially tagged each year and having an ADA-compliant ramp, the engineering of which nearly drove the landlord’s central contractor insane.
Writing the check, signing and copying the contract, and putting the whole mess in the mail (and to bed), I couldn’t help thinking about how many knotty problems I deal with on a regular but never routine basis—all of the issues that come up when you’re the captain of your own small business. Some days I handle it with ease; far more often I struggle through the nuts and bolts and work hard to come down on just the right decision. At those moments, I think it might be a huge relief to let someone else take on the burdens—just have a job where I show up, work and leave. Then again, at that fantasy workplace I might not be able to get away with wearing legwarmers and the silver hoop earrings I bought in the eighties.
Wherever you are and whatever you’re wrestling with, the new moon plus a partial solar eclipse give us new inspiration. Maybe hunt up your favorite wardrobe embellishment and toss it on, connecting your past self with your present enthusiasms and future creative energies. And thank you, as always, for coming along with me on my journey. In gratitude and with love, Rxo