Madonna. David Bowie. Lady Gaga. Three artists known equally for their individual style as for their musical ability. Fashion and music have always shared a symbiotic relationship and international events such as the Fashion Rocks series of fundraisers highlight the vital role that music plays in the fashion industry.
Music is an essential part of a customer’s connection to a store. Music serves to attract and entertain customers. It can create just the right ambience to inspire a positive retail experience. The right soundtrack can provide the stimulus for customers to stay longer in store and influence purchasing decisions.
But retail store operators need to be careful in complying with copyright laws when playing music in store. Simply purchasing a CD or downloading a song does not translate to a right to also play the track in store.
Store owners need permission from the owners of copyright in the music, lyrics and the sound recording to play recorded music in their retail stores. Two recent court cases highlight the importance of obtaining the necessary licences and the consequences of not doing so.
Copyright in recorded music
Protection at law can exist in a musical recording for:
1. the copyright in the song, being the musical work and lyrics; and
2. the copyright in the sound recording.
Under Australian copyright law, artists are given a number of exclusive rights to deal with these works, including:
- the right to perform musical works in public, including in retail stores
- the right to cause sound recordings to be heard in public
- the right to communicate musical works and sound recordings to the public
- the right to reproduce or make copies of musical works and sound recordings.
Each of the above rights are exclusive rights that are given to the creators and owners of the works, being the songwriters, composers, musicians and record labels that own the copyright in musical works and sound recordings.
In order to play recorded music in public, businesses must first obtain the permission of the copyright owner and pay a fee for doing so. In Australia, the process of obtaining this permission is regulated by APRA | AMCOS and PPCA. Retail store operators must obtain licences from both APRA | AMCOS and PPCA to legally play music in store.
APRA | AMCOS
APRA (Australian Performing Right Association Limited) | AMCOS (Australasian Mechanical Copyright Owners Society Limited) is the non-profit organisation that administers the copyright rights in a song (the musical work and lyrics) on behalf of songwriters, composers and music users under Australian copyright law and for copyright owners around the world under international reciprocal licensing agreements.
Retail store operators must obtain a licence from APRA | AMCOS to play the musical work and the lyrics in a song in public. The licence fees vary depending on how the music is used in store and the size of the premises.
Licence fees are collected by APRA | AMCOS and distributed back to artists as royalty payments to ensure that artists are financially rewarded every time their musical works are played, performed and reproduced in public.
PPCA
PPCA (Phonographic Performance Company of Australia) is the non-profit organisation that licenses the public performance of sound recordings on behalf of its members (usually record labels). After deducting administration costs, PPCA distributes the licence fees back to the record companies and registered Australian recording artists. Retail store operators must also obtain a licence from PPCA to play a sound recording in public.
PPCA regularly conducts inspections and carries out investigations into the unauthorised public performance of protected sound recording by businesses in Australia.
PPCA regularly takes legal action on behalf of its licensors for the infringement of their copyright rights and it has recently prosecuted two cases in the Federal Magistrates Court of Australia against retail store operators for playing music in store without first obtaining the necessary licences.
In both cases, the court ordered the businesses to pay substantial amounts in additional damages and costs. The cases highlight the importance for businesses to obtain the proper licences in order to legally play music in retail stores.
PPCA v Jabouri Brothers Pty Ltd
Brothers Assam Jabouri and Omar Jabouri were the directors and shareholders of the company Jabouri Brothers Pty Ltd, which owned and operated the Voodoo Clothing chain of retail stores in seven locations throughout New South Wales.
PPCA issued proceedings against the company and the brothers individually for infringing copyright by causing sound recordings owned or controlled by a number of record companies represented by PPCA to be publicly performed at the Voodoo Clothing stores without their licence since at least late November 2006.
PPCA had contacted the respondents on more than 20 occasions regarding their failure to obtain the necessary licence. In this case, the court also found that the infringement of copyright by the respondents had been flagrant. The respondents deliberately failed to pay the licence fees and continued to publicly play music in store without the appropriate licence. The respondents were ordered to pay approximately A$40,000 in damages, additional damages and costs.
The court’s message in these two cases is clear. Businesses wanting to play recorded music in store must obtain the right licences to do so first. Licence forms can be completed and submitted online at the APRA | AMCOS and PPCA websites. Visit www.apra-amcos.com.au and www.ppca.com.au. As demonstrated by these cases, doing the right thing from the outset is economical and a sure way to guarantee you don’t become subject to ongoing investigations and proceedings which could end up being very costly.