Music Licensing for Noncommercial Broadcasters and Webcasters

As a noncommercial broadcast radio station (that might also stream over the Internet), you cannot simply play any music you want legally; you need permission. Fortunately, you don’t have to go around cutting checks to every band whose music you use. Rather, you can pay to license music in bulk. Just make sure that you are compensating the organizations that need to be compensated, as stations are monitored; if you are not paying the appropriate entity, you may get fined. Also, make sure you are complying with these organizations’ recordkeeping and reporting requirements, unless you have obtained a waiver.

Broadcast Radio Transmissions 

American Society of Composers, Authors and Publishers (“ASCAP”), Broadcast Music, Inc. (“BMI”), and SESAC are the main three performance rights organizations (“PROs”) that control the vast majority of the licensing of musical works in the United States. They charge blanket fees that allow you to publicly perform everything in their catalogs, whenever you want. 

Most songs are licensed by the three main PROs, with ASCAP and BMI each having more songs in their catalogs than SESAC. If an artist is not represented by a PRO, then you must get permission from the artist (or their publisher) directly. If you are not going to play music very often, you may want to negotiate with rightsholders directly and avoid paying PRO blanket licensing fees. The PROs will probably still reach out to you, since you are a radio station, but if you do not play the songs in their catalogs (or if you have obtained a license directly from a rightsholder), you do not owe them anything. If you subscribe to just one PRO, you must be careful to only play songs from their catalog.

There are two kinds of music licenses that we're concerned with - recording artist royalties and publisher royalties. When playing songs over the radio, only the authors/composers/writers of the song have to be compensated (the owners of the “musical work” copyright), not the performers/producers of the song (the owners of the “sound recording” copyright, which is usually assigned to record labels). Complicated, we know.

LPFM Broadcasters

If you are a Low Power FM radio station (“LPFM”), the PROs provide you with these special rates for broadcast radio transmissions:

Other Noncommercial Educational Broadcasters

If you are not an LPFM, but nonetheless a noncommercial educational broadcast radio station, the blanket fee depends on the population in your coverage area (60 dBu Contour) from the latest census data. The base licensing fee for music-based stations (stations with 20% or more programming containing “Feature Music”) and talk-based stations (stations with less than 20% programming containing “Feature Music”) is for populations ranging from 0-249,999. For populations equal to or greater than 250,000, the fee is higher for music-based stations, and either the same or higher for talk-based stations. This is the annual cost for music licensing for music-based (not talk-based), noncommercial educational radio stations with a population count of 0-249,999:

Please note that this information on “Other Noncommercial Educational Broadcasters” does not pertain to radio stations licensed to accredited colleges, universities, or other nonprofit educational institutions. 

Online Streaming

If you plan on live streaming or simulcasting your station over the Internet (also known as noninteractive streaming), there is another layer of music licensing. When playing songs over the radio, only the authors/composers/writers of the song have to be compensated (the owners of the “musical work” copyright), but when streaming songs over the Internet, the performers/producers have to be compensated as well (the owners of the “sound recording” copyright, which is usually assigned to record labels). The Librarian of Congress has entrusted SoundExchange to collect and distribute this compensation. 

ASCAP, BMI, and SESAC charge a fee for online streaming, separate from the fee they charge for broadcast radio transmissions. So, if you are transmitting music over broadcast radio and also live streaming/simulcasting music online, you must obtain two separate licenses from these PROs, in additional to the one from SoundExchange.

The license from SoundExchange requires that you abide by the “sound recording performance complement,” which states the following: 1) No more than 4 tracks by the same featured artist (or from a compilation album) may be streamed to the same listener within a 3 hour period (and no more than 3 of those tracks may be streamed consecutively); and 2) No more than 3 tracks from the same album may be streamed to the same listener within a 3 hour period (and no more than 2 of those tracks may be streamed consecutively).

SoundExchange charges “Noncommercial Webcasters” a flat rate of $500, but it also charges additional per performance fees for all transmissions over 159,140 Aggregate Tuning Hours (ATH) per month. One (1) ATH is one (1) person listening to your station online for one (1) hour. If two (2) people listen to your station online for thirty (30) minutes, that is also one (1) ATH, and if six (6) people listen for twenty (20) minutes, that is two (2) ATHs. 

Make sure to ask SoundExchange if you are eligible for what are called “WSA rates.” The default rates (“CRB rates”) require that you keep track of your ATHs. Many online streaming services will keep track of that information for you. On the other hand, WSA rates allow you to estimate performances, in which you can assume 12 performances per hour for music stations, and 1 performance per hour for non-music stations. WSA rates are also preferable if you plan on exceeding 159,140 ATH, in that the additional per performance fees are lower than the CRB per performance fees.

Those Noncommercial Webcasters that do no exceed 44,000 ATH per year fall under the “Noncommercial Microcaster” category. While Noncommercial Microcasters are also charged a flat rate of $500, they can waive the requirement to submit monthly or quarterly reports to SoundExchange for an additional $100.

LPFM Webcasters

Other Noncommercial Webcasters

*Revenue is the sum of all payments received by you for or in connection with streaming.

**A visit/engagement of 20 minutes in duration is equal to 1 Session; a visit/engagement of 2 hours and 20 minutes in duration is equal to 3 Sessions.

***If you simulcast via a website or app that is owned or operated by a third party, add $23.25/yr.

Please note that this information on SoundExchange does not pertain to noncommercial webcasters owned by accredited educational institutions and primarily operated by students.

Podcasting

Podcasting is different from streaming your live broadcast online because it is on-demand. Music available to stream on-demand will not be covered with a SoundExchange license, and permission to publicly perform such music must be obtained from the owner of the sound recording (usually the record label). And if you are making your podcast available for download, you must obtain additional “mechanical licenses” for the reproduction and distribution of the music. 

Additional Reading

bmi.com/licensing/entry/radio

ascap.com/licensing/types/radio

sesac.com/Licensing/FAQsBroadcast.aspx

soundexchange.com

The Basics of Music Licensing in Digital Media: 2011 Update

We extend our thanks to Charles Frank, Breanne Hoke, and the Glushko-Samuelson Intellectual Property Law Clinic at American University's Washington College for helping to prepare this information.