Background music in the sales area: Scope and limits of public performance from a copyright perspective
The question of whether the performance of music in the sales area of a pizza delivery service constitutes a violation of copyright law is the subject of a recent decision by the District Court of Frankfurt am Main (Judgment of 17.08.2022, Az.: 32 C 1565/22 (90)). The court had to determine whether playing music in the checkout area of a gastronomic delivery operation constitutes a “public performance” within the meaning of the Copyright Act and thus triggers a remuneration obligation under § 15 para. 3 UrhG towards collecting societies. The following analysis examines the legal background, the classification of the term “public,” and the relevance for business practice.
Framework of the case
Facts and dispute
The core of the legal dispute was the playing of background music within the customer-accessible counter area of a pizza business, where the vast majority of orders are received by phone or online. The music offering primarily served as acoustic accompaniment during short personal interactions – such as when picking up or paying for meals. The collecting society claimed that this constituted a public performance of protected works, which required appropriate licensing and remuneration.
The relevant copyright provision
The public performance according to § 15 para. 3 UrhG ensures the author’s right to exclusively grant or deny the use of their works to a “public,” i.e., a plurality of persons outside a close personal circle. An infringement occurs when a work is made accessible to an indeterminate group of persons without the corresponding permission.
Legal classification: “Public performance” in the context of businesses
Concept of the public and the European legal background
Legislators and the judiciary orient themselves for the interpretation of the term “public” to the requirements of Article 3 of Directive 2001/29/EC (Information Society Directive). According to the consistent case law of the European Court of Justice (Judgment of 15.3.2012, C-135/10, SCF Consorzio Fonografici), it is crucial whether an indeterminable multitude of people are addressed by the use and if this is done for commercial purposes. For gastronomic businesses, it is recognized that the performance of music for guests is fundamentally to be classified as public if it represents a relevant economic benefit and is intended for an undefined general public.
Distinction: Internal use versus external presentation
In the current case, it had to be assessed whether the few, mostly short-term customer contacts in the checkout area already represent “public” in the sense of copyright law. The District Court of Frankfurt am Main differentiated whether the group of persons to whom the music is made accessible stands out from a private circle and whether the business benefits noticeably. Since the business is primarily oriented towards receiving orders by phone or digitally and personal customer contacts in the public space are minimized to an absolute minimum, the court did not recognize any economically significant or general public-related advantage from the music playing.
Key judgment reasons
The court clarified that the group of people who can perceive the music is limited to a narrow framework. In particular, access remains limited to people directly related to the business operation – such as individuals picking up orders. In contrast to restaurants or cafes, where music is used specifically to retain customers and lengthen their stay, musical accompaniment in delivery or pickup services plays a subordinate, often negligible role in the business model. Therefore, a licensing public performance was denied.
Practical impacts and questions of distinction
Relevance for businesses in the gastronomy sector
The decision specifies the conditions under which certain forms of music use in retail or gastronomy can be classified as copyright-relevant public performance. It clarifies that not every form of background music necessarily triggers a remuneration obligation. What is decisive is the actual design of the business concept and the extent of customer contact, with distinctions being drawn based on economic significance and the scope of recognizability.
Differentiation by usage scenarios
The judgment is likely to be particularly relevant when companies pursue hybrid business models or rely on different distribution channels (on-site business, delivery, pickup). Even slight changes in business operations – such as converting a delivery business into a snack bar with a dining area – may lead to a different legal assessment. Therefore, a detailed analysis of the traffic to end customers and the business focus is indispensable.
Significance for the collective rights of collecting societies
At the same time, the judgment highlights the importance of collecting societies and the systematics of collective rights management. Rights holders depend on effective licensing of the public use of their works. A restrictive interpretation of the public concept can impact the revenue streams of collecting societies, indicating that disputes in this area will continue to be anticipated.
Legal protection and legal classification
The findings made by the District Court are to be considered for comparable cases in the area of copyright public performance. However, it is always a case-by-case examination in which operational peculiarities are decisive. If comparable legal questions are open or disputed, the presumption of innocence and the specifics of case-by-case assessment must be pointed out.
Companies, investors, and wealthy private individuals with legal questions regarding the use of music and other copyrighted works in their own business can further explore the possibilities of competent legal advice in copyright law. For more information and the possibility to contact, visit the page for Copyright law consulting.
