Contrary to popular belief, adding music inside your fitness facility isn’t as easy as pressing ‘play’ on your personal Spotify account. An intellectual property lawyer breaks down what operators need to know
Music is crucial in creating an energetic and motivating atmosphere in gyms and fitness facilities. It has the power to enhance the workout experience, create community and keep members engaged and motivated. However, playing music in a commercial setting like a gym involves more than just hitting play. There are important copyright licensing requirements that gym and other fitness facility owners must comply with to avoid costly fines and even more costly lawsuits.
Generally speaking, music is protected by copyright law. Songwriters hold the exclusive right to control the public performance of their musical compositions and lyrics, and playing music in a public setting without a proper public performance license constitutes copyright infringement.
So what constitutes a public performance? Under U.S. copyright law, a public performance of music includes playing it in a place open to the public or at any place where a substantial number of people outside of a normal circle of family and friends is gathered. Music played in a fitness facility qualifies as a public performance for which proper licenses are necessary.
In the U.S., securing the necessary public performance licenses involves either contacting each owner of a copyrighted work and negotiating a license (which would be, if not impossible, certainly daunting) or working with the Performance Rights Organizations (PROs) that represent songwriters and publishers. The major PROs in the U.S. are ASCAP, BMI, SESAC and GMR. In the U.S., each songwriter can sign up with one, but not more than one, PRO to administer the public performance licensing of their compositions.
The PROs offer a blanket license, providing a gym or fitness facility the right to publicly play any of the music in that PRO’s catalog for an annual fee. The cost of a blanket license depends on several factors, including the square footage and capacity of the facility, the number of speakers and audio zones, and whether music is played at a location with a cover charge or entrance fee (gyms charging membership dues fit within this category).
A common question is whether it is possible to sign up with and pay just one of the PROs and only play music in their catalog? The answer is not really, since it is common for more than one songwriter to contribute to and have a copyright interest in a composition (e.g., Lennon and McCartney). Each composer may sign up with the PRO of their choosing, as may each heir or assignee of each composer. As such, it is nearly impossible to play only music solely licensed to one of the PROs.
Use of Personal Streaming Services Is Improper
One common misconception among gym owners and fitness instructors is that a personal streaming service subscription allows them to play music publicly. However, platforms like Spotify, Apple Music, Pandora and YouTube are intended for personal, non-commercial use only. Their terms of service explicitly prohibit use in commercial settings, including gyms, studios, and fitness classes. Thus, the use of these personal streaming services in a gym setting violates both the streaming service’s terms and copyright law. Doing so can not only result in termination of the user’s account, it also opens the business up to potential legal action.
Fitness facilities and instructors wishing to stream music should look at the music streaming services intended for business settings, such as Pandora for Business, Soundtrack, Rockbot, Apple Music for Business, and other similar offerings. Some commercial services even include public performance licenses from one or more of the PROs, dispensing with the need to separately secure licenses from the PROs included within the streaming service’s plan.
Do You Need More Than PRO Licenses?
Many fitness providers, in addition to providing group fitness classes at the gym, provide members with online access to workout routines synchronized to music for the members’ personal use outside the studio. In this scenario, prior to posting or otherwise distributing such a video, whether to members or instructors, it is likely necessary to secure a synchronization license (aka a sync license) and a master use license. Unless you’re licensing music from Taylor Swift, who recently purchased her master recordings, a master use license is commonly secured from the record label that released the musical track contained in the video. A sync license is commonly secured from the owner(s) of the underlying musical composition or from the music publishing companies engaged by the songwriters.
There is no blanket licensing available for either a master use or sync license. If these licenses are needed, it is necessary to track down the owner(s) of both the musical composition and the particular recording of the composition the gym or fitness studio wishes to use and, if successful in finding them, the facility must negotiate and secure a license agreement from each. And any one of these rightsholders can refuse to provide a license, bringing the whole house of cards down.
In order to avoid these complex and costly licensing requirements, some gyms use one of the royalty-free music services (there are several, but their music catalogs may be limited), subscribe to a fitness music service or simply engage a composer and musicians to create the desired music, with the fitness provider owning the end product, negating necessity of securing third party consent for use of that music. For these reasons, among others, some music-heavy fitness programs, like Zumba, produce their own music, which they can then use freely and without the necessity of licenses from third parties.
Why Compliance Matters
Music is an essential component of the fitness experience, but using it without the proper legal permissions exposes a gym or fitness facility to serious legal risks.
Understanding copyright law, avoiding misuse of personal streaming services, knowing when the use of music may require more than the blanket licenses available and obtaining the appropriate licenses will protect the business and allow it to provide legally compliant and enjoyable music for its members in conjunction with its other offerings.
Owen Seitel is the co-founder of Crown® LLP and an attorney with over 30 years of experience in intellectual property and business law. He counsels creatives and those who engage in their services on protecting, leveraging and monetizing their work. Reach him at [email protected]
