Music on hold and copyright rights

We all sort of vaguely know that because of copyright rights, one can’t just hook up any old audio source to the music-on-hold (“MOH”) port of one’s telephone system.  In this posting I describe the usual ways that people make mistakes about MOH and the new approach that our patent law firm is trying.  And I describe a way that the alert reader might win a prize.  

The usual misconception about MOH (and about background music in a bar or store or restaurant) is that if it’s okay to listen to the radio in one’s home or car, surely it is okay to use a radio station as a source for music on hold in a telephone system.  The radio station, after all, has surely done whatever it needs to do to obtain whatever copyright licenses are needed for the music being broadcast.  What’s more, the listener is “paying” for the music by listening to advertisements.

The answer of course is no, it is not okay to use a radio station as the source for MOH.  At least, not without further licensing as I will discuss below.  And anyway, I have always wondered why people would be so foolish as to do so.  If you are (say) a car dealership and you use MOH from a radio station, surely a competing car dealer would catch on and would blanket that radio station with ads for the competition.

Of course most MOH systems come with licensed audio tracks.  The audio tracks are usually slightly annoying, with some bland and generic music interspersed with a far-too-perky announcer saying “your call is important to us — we will get to your call as soon as possible.”  The audio tracks come with an assurance from the MOH system vendor that the music is royalty-free, meaning that you can use it without having to worry about copyright problems.

A second approach, followed by most IP law firms, is to have no music on hold at all.  The caller hears silence during the hold period.  This has the advantage of simplicity and safety.  One feels quite secure in the knowledge that nobody, not even John Cage or Robert Rauschenberg, is going to send a cease-and-desist letter claiming that they own rights in “silence”.

A third approach is the approach that our firm has followed for many years now, namely the use of royalty-free licensed music.  Our favorites were a Chopin etude and Erik Satie’s Trois Gymnopédies.  A one-time payment of $20-30 got us an MP3 file that we could play over and over again on our MOH system at no additional cost.  We did this because we assumed that any licensing of any popular music would be prohibitively expensive.

For someone who wants to license a particular piece of music (for example a popular song that has been on the radio) the usual first step is to explore a “Fox license”, meaning a license from the Harry Fox Agency.  For many uses of music a Fox license is faster and easier and more economical than any other approach for copyright licensing.

But as far as I can see, for music on hold a Fox license isn’t a very good choice.  Fox has many kinds of licenses, for background music in movies and television shows, for incorporation into DVDs, and a variety of other uses.  But I did not see that HFA has any established licensing program for MOH in particular.

For music on hold (and for many other public uses like stores and bars and restaurants and performance venues) the usual licensing mechanism is by way of BMI and ASCAP and SESAC.  Many practitioners will advise a US-based client that if the client gets two licenses, one from ASCAP and one from BMI, the client is probably fairly safe.   This is because in the world of popular music, at least the US, the majority of rights holders choose to affiliate with either ASCAP or BMI.

The thing is that if you hook up a radio station to your MOH port on your telephone system, you don’t know if the next song that will play is a “BMI song” or an “ASCAP song”.  By which I mean a song where the cease-and-desist letter would come from BMI or a song where the cease-and-desist letter would come from ASCAP.  So you would sort of need licenses from both agencies.

The same is true for a public performance venue, where the band that is performing would likely as not perform both ASCAP-licensed and BMI-licensed songs.

In the case of our firm, we clicked around the ASCAP and BMI web sites and pretty quickly found that BMI posts an easy-to-find price for an MOH license (it turns out to be $250 per year if you have ten or fewer trunks on your phone system) and ASCAP does not.  To find out the ASCAP price I guess you would have to contact them and negotiate.  So we signed up for a BMI MOH license.

Then the fun began.  We needed to figure out which songs that we might want to play on our MOH system are “BMI songs”, meaning songs for which BMI can grant a license.  To do this we went to the BMI Repertoire search system.  We figured the odds are about 50-50 that a song that we wanted to use would be a “BMI song”.  And sure enough about half of the time the song would turn out to be a “BMI song”.  Stated differently, about half of the songs that we wanted to use turned out to be ASCAP songs so we were not able to put them on our MOH system since we had only a BMI license.

Depending on your song title, it is no easy trick figuring out whether the song that you are interested in is a BMI song or an ASCAP song.  Many factors can make it difficult.  One problem is that for a given song title there may be half a dozen distinct songs with that title.  A related problem is that for a given song there may be many pop recordings of that song, performed by various performers.  Linda Ronstadt’s performance of Blue Bayou might be BMI-licensed while the Roy Orbison performance of Blue Bayou might be ASCAP-licensed, or vice versa.  Even as to a particular performer, the “live concert album version” might be licensed differently from the “radio version” album for example if the albums came out at different times and if the performer had switched record labels (or switched between ASCAP or BMI) between those times.

Anyway we did the best we could to pick out “BMI songs”, and as of right now we have about two dozen pop songs loaded onto our MOH system.

Which now brings us to your chance to win a prize.  The first three commenters to correctly name one of the songs on our MOH system will win a prize, namely a copy of the Bodenhausen book on the Paris Convention.  Feel free to call us up at +1 303 252 8800 and ask to be put on hold.  Then see if you can identify the song that you are hearing, that is, the name of the song and the name of the performer (two pieces of information).  Post it as a comment to this blog article.  If you are among the first three persons to get both right (the name of a song on our MOH system and the name of its performer) then you will win a prize.

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