Most People Are DJs: When Being an Attorney Feels Like a CurseAugust 3, 2023

As I was getting a haircut last week, I had a revelation: being an intellectual property attorney can be annoying.

Most people can enter an establishment and go about their business while enjoying the background music inevitably being played. Me? Not so much. As my barber and I discussed one of our favorite bands (the Hold Steady), he decided to play some of their music over the shop’s speakers. Instead of enjoying the great music though, all I could think was: “Is he allowed to be playing this?”

Under 17 U.S. Code § 106(6), the owner of a copyright in a sound recording “has the exclusive rights to . . . perform the copyrighted work publicly by means of a digital audio transmission.” 17 U.S. Code § 101 defines ‘to perform a work publicly’ in part as performing the work “at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered.” In other words, retail establishments generally do not have the right to play music or other copyrighted materials absent a license to do so (which typically is in the form of a blanket license from a performing rights organization such as ASCAP, BMI, or SESAC).

Like all things legal of course, there are exceptions to this rule, depending on factors such as the type and square footage of the retail establishment and the number, nature, and placement of the device(s) carrying the sound. Had my barbershop talked to a copyright expert like Brandon Clark to determine whether they fell within such exceptions? Or did it have an applicable license? Or was it one of the many businesses unaware or unconcerned with paying a royalty for use of copyrighted music?

In the end, this was not a problem for me to solve. I was there for a haircut, and I got a great one (with the added benefit of some excellent tunes!). I left the shop and went about my day. That is, until I grabbed some dinner and noticed some music being played…

Nicholas J. Krob is an Associate Attorney in the Trademark, Licensing, and Litigation Practice Groups at McKee, Voorhees & Sease. For additional information, please visit www.ipmvs.com or contact Nicholas directly via email at nicholas.krob@ipmvs.com.