Who licenses the concert, and what a performance license does not cover

A community ensemble programs eight pieces for a spring concert. Two are from 1904. One is a modern arrangement of something from 1904. Four are under copyright. One is a transcription a member made because the published version does not exist for your instrumentation. Admission is free, but there is a donation basket by the door and a sponsor logo in the program.

Almost every one of those details changes the answer to “do we need a license?” Here is how the pieces fit together, with the parts nobody publishes clearly marked as such.

The right you are using

Section 106 of the Copyright Act reserves several exclusive rights to the owner, including the right to perform the copyrighted work publicly — and, separately, the right to prepare derivative works based upon the copyrighted work. A concert uses the first. An arrangement uses the second. They are different rights, licensed by different people, and a performance license never covers an arrangement.

ASCAP states the baseline plainly:

U.S. copyright law requires you to obtain permission from copyright owners of musical compositions to perform their compositions to the public.

ASCAP, Music Licensing for Concert Bands

The nonprofit exemption is real, and narrower than you hope

Section 110(4) exempts some nonprofit live performances outright. Read the conditions carefully, because they are cumulative:

performance of a nondramatic literary or musical work otherwise than in a transmission to the public, without any purpose of direct or indirect commercial advantage and without payment of any fee or other compensation for the performance to any of its performers, promoters, or organizers, if— (A) there is no direct or indirect admission charge; or (B) the proceeds, after deducting the reasonable costs of producing the performance, are used exclusively for educational, religious, or charitable purposes and not for private financial gain…

17 U.S.C. §110(4)

Note what has to be true simultaneously: no commercial advantage, direct or indirect, and no compensation for the performance to any performer, promoter or organiser. A paid music director is compensation to an organiser. So the typical community band — free concerts, but a stipended conductor — is already outside the exemption on the compensation clause alone, before anyone argues about the donation basket.

The Association of Concert Bands, writing for exactly this audience, notes that the word ‘indirect’ can encompass a wide variety of things that would make it such that the performance fee has to be paid, and lists suggested donations, passing the hat, program advertisements, sponsorships, a paid conductor and a paid librarian as facts that defeat it. That is association guidance rather than law, but it is the right instinct: the exemption is for the genuinely free, genuinely unpaid concert.

There is also a notice mechanism in (B): a copyright owner can object in writing, signed, served on the person responsible for the performance at least seven days before the date of the performance, stating the reasons.

Why one license is not enough

Boards routinely assume a license is a license. It is not. The performing rights organizations divide the world by writer, not by repertoire type:

A music license with another performing right organization allows you only to perform copyrighted music represented by that organization… This is because each songwriter or composer may belong to only one performing right organization at any given time, so each PRO licenses a unique repertoire of music.

BMI, Licensing FAQs

Global Music Rights says the same thing from the other side: licenses with ASCAP, BMI and SESAC do not grant you authorization to publicly perform the copyrighted music of Global Music Rights’ songwriters, composers, and publishers and vice versa. Which means coverage is determined piece by piece, by who wrote each work — and that is a repertoire question, answerable only from your own program history.

Whose license is it — yours or the venue's?

This is where most of the confusion lives, and there is no single rule. What the organizations themselves say:

• BMI licenses the establishment: Since it’s the business or organization that is authorizing the performance of music, BMI offers a license to the owner of the establishment…
• GMR puts it on the premises: It is the responsibility of the venue/place of business to obtain licenses for all music played within the premises, whether live or recorded.
• ASCAP treats presenters and venues as separate licensee classes and allocates concert liability by who is licensed: If the other presenter is not licensed under the ASCAP Concert & Recital License Agreement, then you will be responsible for paying the license fee due – even if you have an agreement to the contrary with the other party.

That last clause deserves a moment. A handshake with the high school or the church that “they handle the licensing” does not protect you if they turn out not to be licensed. And when an ensemble rents a facility for an event it sponsors and produces itself, the ACB's guidance is that it must obtain its own performance license.

We found no source stating a general legal rule that the venue is always the licensee. Get it in the rental agreement, in writing, naming the organizations covered.

What the published rates actually say

Two of the four PROs publish usable concert numbers. Two do not.

ASCAP's Concert & Recital license is a percentage of gross ticket revenue, banded by the venue's seating capacity. For a hall seating 2,500 or fewer — which is nearly every community ensemble venue — the blanket rate is 0.80% of gross ticket revenue and the per-concert rate is 1.20%. Their own worked example: a 10,000-seat venue with $100,000 of gross ticket revenue at the 0.25% band pays $250. A minimum annual fee applies; the FAQ confirms one exists (the minimum fee requirement is based on each calendar year) without stating the amount, so we cannot quote it.

BMI's interim Live Music Attractions license takes a different shape: 0.5% of gross revenues per paid-admission attraction, or 1.5% of entertainment expenses for a free-to-attend attraction, against a 2026 minimum annual fee of $449 that adjusts each contract year with CPI-U. Late payments carry 1.5% per month or the legal maximum, whichever is less, after 30 days.

Note what that means for a free concert: your fee is computed from what you spend, not what you take in. A free concert is not a zero-fee concert.

SESAC and GMR publish no concert rate schedules at all. SESAC has a page headed “Music Licensing Fees: How are they determined?” that states no amounts; GMR says only that the relevant factors that formulate your licensing rate depend upon your type of business and how the music is presented to the public. Do not let anyone hand you an estimate for those two — ask them.

The concert band discount, and one honest caveat

ASCAP offers a route specifically for ensembles like yours:

As an alternative, concert bands may also qualify for the ASCAP blanket license offered through the Association of Concert Bands (ACB) at a reduced rate. To qualify for this license, you must be an organizational member of the ACB.

ASCAP, Music Licensing for Concert Bands

ACB's eligibility conditions: dues-paying organizational member, annual gross ticket sales under $50,000, annual operating budget under $50,000, no outstanding dues owed to ASCAP or BMI, and an ensemble functioning as a concert band — community bands, wind ensembles, brass bands and jazz bands qualify. String orchestras, choruses, a cappella and barbershop groups, soloists and duos do not, and should contact ASCAP and BMI directly for their licensing needs. The license covers only the live public performance: not virtual performances, not video recordings of your concerts.

We are deliberately not quoting a price. The current ACB page states no dollar amount, and the only figure we could find sits in a 2012 document. Publishing a 14-year-old number as current would be worse than publishing none. Ask ACB.

Arrangements and photocopies are a different problem entirely

A performance license covers performance. Nothing else. ASCAP does not license printing, arranging or recording; BMI states that it only licenses performing rights and does not license mechanical or synchronization rights. Those go to the publisher.

And an arrangement is a new work built on someone else's. The Copyright Office lists a musical arrangement of a preexisting work as a derivative work, and notes that only the owner of copyright in a work has the right to prepare, or to authorize someone else to create, an adaptation of that work. The Music Publishers Association puts the ensemble-facing version bluntly:

Making any arrangement is a duplication, and permission must be obtained from the copyright owner.

Music Publishers Association, Copying Under Copyright

So the member who transcribed the piece for your instrumentation because no published version exists has created an unauthorised derivative work, however generous the motive. Permission must be secured before duplication, not after.

The narrow exceptions are worth knowing exactly, because they are the ones people stretch. From the 1976 congressional guidelines reproduced verbatim by the Copyright Office:

Emergency copying to replace purchased copies which for any reason are not available for an imminent performance provided purchased replacement copies shall be substituted in due course.

U.S. Copyright Office, Circular 21 (PDF)

Also permitted: purchased printed copies may be edited or simplified provided that the fundamental character of the work is not distorted or the lyrics, if any, altered or lyrics added if none exist. Expressly prohibited: copying for the purpose of performance beyond that emergency case, and copying to substitute for purchase. An accompanist's part is not covered — the MPA's position is that permission for duplication for any purpose whatsoever must be secured. Out of print is not a free pass either: most publishers will allow it, but only the publisher can confirm a title is out of print, and permission still comes first.

Public domain has a moving date, and a catch

The current line, from Circular 15a:

Applying these standards, all works published in the United States before January 1, 1931, are in the public domain.

U.S. Copyright Office, Circular 15a, Duration of Copyright (PDF)

That date advances by one year every January because pre-1978 published works carry a 95-year total term. Whatever year you are reading this in, check it rather than trusting the number above.

The catch is the one that trips up programming committees. A public domain composition is not a public domain edition. Circular 14: The copyright in a derivative work covers only the additions, changes, or other new material appearing for the first time in the work. The Copyright Office's own example table lists “new arrangement of preexisting music for piano” with the music excluded and the arrangement included. So a 2015 critical edition of an 1890 symphony carries live copyright in its new editorial material, even though the notes underneath are free. The 1904 piece on your program may be public domain; the modern arrangement of it is not.

What a board can actually do about this

• Keep the program history — every work, composer, arranger, publisher and edition, per concert. Every licensing question you will ever be asked is answered from that list, and only from that list.
• Record the edition, not just the title. “Holst, First Suite” does not tell a future librarian whether you played a public domain edition or a copyrighted one.
• Record how many copies you own and where they are. The emergency-copy exception requires purchased replacements in due course, which requires knowing what you purchased.
• Put the licensing obligation in the venue agreement in writing, naming the organizations. Not in an email thread with a facilities manager who has since left.
• Keep permission correspondence for arrangements with the arrangement, permanently. The arranger will leave the ensemble; the parts will stay in the library.
• If your concerts are free and nobody is paid, keep the record that shows it. The §110(4) argument is a factual one.

Rehearsal Letter keeps the music library and the concert program history in the same place — work, composer, arranger, publisher, edition, copies held and which concerts used it — so a licensing question is a lookup rather than an archaeology project. This article is general information about music licensing, not legal advice, and it deliberately omits figures we could not verify from a current primary source. For your ensemble's obligations, ask the organizations directly and, where money is at stake, a lawyer.