Archive for the ‘Copyrights’ Category
Thursday, June 5th, 2014
By Brian Taylor Goldstein, Esq.
Dear Law and Disorder:
We are in production of a new “Tribute” show with a video component. We are grappling with what type of media is public domain or where public domain photos or video can be found. None of the video production companies seem to have a definitive answer. I have been searching for pertinent federal statute that address this issue. Any thoughts?
There’s an old joke where a man encounters another man frantically searching for something in the middle of the street. The first man asks: “What are you looking for?” The second man replies: “My keys. I lost them in the dark alley over there.” “Then why are you looking for them out in the street?” “Because the light is better out here!” Ba da boom.
Like the man in the street, you’re looking for the right thing, but in the wrong place. There is no federal statute that addresses your issue…at least, not directly. If you’re producing a “tribute” show with a video component, then any copyrighted material you want to include in your video will need to be licensed. Any material that is not protected by copyright is in the public domain and is free to use. The question you need to ask then is: how do you tell if material is still protected by copyright? The federal copyright statute will give you a formula, but not the answer. The answer depends on when the copyrighted material was first published. Most often, copyright lasts for the life of the owner plus 70 years. But who is the owner?
The challenge with videos is that you are often dealing with multiple copyrights with multiple owners. Let’s say, for example, that you want to include a video of the original artist (since this is a “tribute” show) performing at a concert recorded in the 1960s. There is a copyright in the video itself as well as a copyright in the music being performed on the video. So, even if you were to determine that the video is in the public domain, the music being performed may still be protected by copyright—or vice versa. We once had an orchestra contact us about creating a DVD to celebrate their 50th anniversary using old video clips from past concerts. Not only did we (well, to be fair, Robyn!) have to obtain licenses from publishers of certain contemporary works (as well as arrangements of older works), but we needed to obtain licenses from some of the original videographers who still owned the rights to the video footage. (Side note: ALWAYS take the time to get a written license or assignment from anyone whom you hire to photograph or videotape your or your performance—even volunteers!)
Photographs are similar. In every photograph are two sets of rights: the rights to the photograph itself (ie: the negative) and the person being photographed. The photograph itself may be owned by the photographer, but the photographer may or may not own or control the rights to the image or person in the photograph. While a person does not have a “copyright” in his or her own image, they do own rights of publicity, rights of endorsement, etc. So, for example, if you wanted to use a photograph of the famous artist you are paying “tribute” to, you would need to determine whether or not the photograph itself was in the public domain and whether or not you required any publicity or endorsement rights to use the image of the artist. (To make matters even worse, publicity and endorsement rights are controlled by state, not federal law, and can vary from state to state.)
Determining whether or not a photograph is the public domain is just like determining whether or not a video is in the public domain: when was it made? Who made it? Are they dead or alive? Even if the photograph or video is in the public domain, you still need to do a separate analysis of the contents or images on the photograph or video.
While we’re on the topic of “tribute” shows, its also worth mentioning that even if you are lucky enough to find all the videos and photographs you want, as well as the contents thereof, in the public domain, you still need to be wary of using the name and image of the original artist in the marketing and publicity materials of your tribute show. Things like names and even visual elements such as distinctive costumes or a physical characteristic of the original artist can trigger trademark issues that are entirely different from copyright and other rights. The good news is that with enough advance planning and thoughtful analysis, its entirely possible to create the type of video component you want. Many artists and producers successfully do this all the time, often with the blessing of the original artist.
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For additional information and resources on this and other
legal and business issues for the performing arts, visit ggartslaw.com
To ask your own question, write to lawanddisorder@musicalamerica.org.
All questions on any topic related to legal and business issues will be welcome. However, please post only general questions or hypotheticals. GG Arts Law reserves the right to alter, edit or, amend questions to focus on specific issues or to avoid names, circumstances, or any information that could be used to identify or embarrass a specific individual or organization. All questions will be posted anonymously and/or posthumously.
__________________________________________________________________
THE OFFICIAL DISCLAIMER:
THIS IS NOT LEGAL ADVICE!
The purpose of this blog is to provide general advice and guidance, not legal advice. Please consult with an attorney familiar with your specific circumstances, facts, challenges, medications, psychiatric disorders, past-lives, karmic debt, and anything else that may impact your situation before drawing any conclusions, deciding upon a course of action, sending a nasty email, filing a lawsuit, or doing anything rash!
Tags:artist, Brian Taylor, copyright, Copyrights, endorsement, Goldstein, image, images, license, Licensing, marketing, music, orchestra, photo, photograph, photographer, public domain, publicity, video footage, videographer, videotape, volunteer
Posted in Artist Management, Arts Management, Copyrights, Law and Disorder: Performing Arts Division, Licensing, Music Rights, Publishing, Trademarks | Comments Closed
Thursday, May 1st, 2014
By Brian Taylor Goldstein, Esq.
Dear Law and Disorder:
If a hypothetical rental company is hired, either by a venue or by the client using a venue, to supply the sound and/or video system for a corporate, non-profit or association event; and this hypothetical rental company is asked to provide “top 40” music to be used during “walk in”, dinner, award winner walks up to the stage, etc. where in the liability chain would this rental company be? What if the end client hands the hypothetical rental company a stack of CD’s or worse, a drive full of MP3’s and requests/insists that they be played? If “ultimately” the owner of the venue is responsible of verifying that proper licensing has been obtained but “everyone involved” is at risk of being named in a lawsuit if proper licensing has not been obtained, how does the vendor in the middle point to either the venue or the end client as the responsible parties? Is it enough to spell out specific language in the rental agreement? <sarcasm> I know that you are, no doubt, shocked to hear that this scenario might be possible. However, IF it were to become “common practice” among rental companies to happily play whatever they and/or their client wanted without so much as a hesitation, it would be difficult for any hypothetical rental company to compete if they were the one’s constantly harping on usage rights with their clients. </sarcasm>
In truth, I’m less shocked by the possibility of the scenario you propose than astonished—nay, agog—by your desire to be proactive about it—even hypothetically. It’s a welcome reprieve from the “let’s not call GG Arts Law until we’ve actually been sued by Disney” approach we are more familiar with.
Merely being named in a lawsuit doesn’t mean that you will necessarily be found responsible—or, as lawyers like to say “liable.” Liability requires that you had a duty to do, or not do, something which you did or did not do. In your hypothetical, its not entirely accurate to say that “ultimately the owner of the venue is responsible for verifying that the proper licensing has been obtained.” Rather, if licensing is required, everyone involved in the performance has a duty to make sure that the proper licenses are obtained—not just the owner of the venue, but the hypothetical rental company and the rental company’s client. Its more accurate to say that, while, ultimately, the owner of the venue is more likely to get sued, everyone involved could be held responsible.
However, you are correct that the hypothetical rental company can put language in its rental agreement that says that whomever is hiring the company (either the venue itself or the person renting the venue, or both) agrees to obtain all necessary licenses and, in the event the rental company is sued and found to be liable for copyright infringement, will cover all of its legal costs and expenses, as well as any damages it might be ordered to pay. The technical term for such a clause is “indemnification and hold harmless”, but there’s no need to use magic legal terms so long as the meaning is clear. While having such a clause in its rental agreement will neither protect the hypothetical rental company from getting sued nor protect it from being liable, it will give the company a contractual basis to turn to the party that signed the rental agreement and say “you agreed to take care of this problem. Fix it!”
Even with an indemnification and hold harmless clause in its pocket, whether or not the hypothetical rental company can happily play whatever it and/or its hypothetical client wanted without so much as a hesitation really depends on the venue where the company has been hired to provide services and where such venue lies on what I call the Risk-O-Meter. On the low end of the meter lies most for-profit venues (hotels, rental halls, restaurants, conference centers, etc) which more often than not will have obtained the necessary blanket licenses from the major performance rights organizations (ASCAP, BMI and SESAC) to permit that stack of CD’s or a drive full of MP3’s to be played. So, no worries. On the high end you will find the non-profit venues, schools, community centers, and social halls which either don’t know they are supposed to get performance licenses or incorrectly believe that because they are non-profit they are also non-commercial and are exempt from the statutes, rules, laws, and other social orders by which the rest of us must abide. (While not all commercial venues are non-profit, almost all non-profit venues are also commercial.) Your need to harp on usage rights is directly proportionate to where you lie on the Risk-O-Meter—hypothetically speaking, of course.
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For additional information and resources on this and other legal and business issues for the performing arts, visit ggartslaw.com
To ask your own question, write to lawanddisorder@musicalamerica.org.
All questions on any topic related to legal and business issues will be welcome. However, please post only general questions or hypotheticals. GG Arts Law reserves the right to alter, edit or, amend questions to focus on specific issues or to avoid names, circumstances, or any information that could be used to identify or embarrass a specific individual or organization. All questions will be posted anonymously and/or posthumously.
__________________________________________________________________
THE OFFICIAL DISCLAIMER:
THIS IS NOT LEGAL ADVICE!
The purpose of this blog is to provide general advice and guidance, not legal advice. Please consult with an attorney familiar with your specific circumstances, facts, challenges, medications, psychiatric disorders, past-lives, karmic debt, and anything else that may impact your situation before drawing any conclusions, deciding upon a course of action, sending a nasty email, filing a lawsuit, or doing anything rash!
Tags:ascap, bmi, Brian Taylor, CD, copyright, copyright infringement, damages, Goldstein, hotels, lawsuit, Liable, license, Licensing, necessary licenses, performance license, performance rights, proper licenses, risk, sesac, venue
Posted in Artist Management, Arts Management, Contracts, Copyrights, For Profits, Law and Disorder: Performing Arts Division, Liability, Licensing, Music Rights, Non-Profits, Presenters, Publishing, Recordings, Venues | Comments Closed
Thursday, April 24th, 2014
By Brian Taylor Goldstein, Esq.
Dear Law and Disorder
My ensemble has been approached by a composer/musician who would like them to do two days of recording for music that she is composing for a theater company. My understanding is that this theater company does quite a bit of touring. Do musicians typically get royalties each time the recording is performed or would this just be a buyout situation with the composer?
As, typically, most musicians rarely get paid what they deserve, I’d rather find a better standard.
We don’t often like to think of performing artists as a commodity, but it situations such as this that remind us why show business is a “business.” Like pricing any other product or service, it always comes down to how badly the buyer wants what you’re selling and how badly you want to sell it to them. In this case, you’ve got two things to sell: (1) the time and talent of the artists to show up for two days and perform whilst being recorded and (2) the right to use the recording of their performance. You can sell them together or separately. You can sell all of the rights or only some of the rights. You can also include any restrictions, limitations, or conditions that you feel might be beneficial to the ensemble. Unlike selling used cars, there’s no Blue Book where you can look up pre-determined values. Nothing is standard. Figuring out what to charge and how to charge ultimately depends on an analysis of the specific circumstances of how the recording will be used:
Will the recording be used as background music or as a featured part of the theater company’s production? Will there be other recordings by other prominent artists used during the same performances or as part of the same production? Will the theater company be using the recording for performances at commercial venues or PACs? What is the commercial potential of the production? Do they intend to use the recording to produce and sell a soundtrack or just use the recording for performances? Does being associated with this particular composer or the theater company bring any value or heightened exposure to your ensemble? Is your ensemble more interested in the exposure or the money? Would the recording be something the ensemble would like to use for its own purposes?
Personally, some of the terms I’ve negotiated myself in similar situations as yours have included:
- Granting the rights to use the recording only for live stage performances, but not for soundtracks, CDs, or digital downloads, each of which would require additional fees and payments.
- Granting the rights to use the recording for live stage performances except for Broadway, Off-Broadway, or 1st class runs.
- Granting the rights to use the recording only for a specific period of time, after which, if they wanted to continue using it, they have to re-negotiate.
- Granting the rights to use the recording in exchange for booking the artists to perform live for a specific number of performances.
Such arrangements can include, where warranted, flat fees or royalties, or a combination of both, or even a percentage of box office from each performance. You can also request that the ensemble be credited in all programs or liner notes, or request that the ensemble get the rights to use the recording for its own promotional purposes. Like any negotiation, the other side may refuse, or propose its own terms, but you need to start somewhere–and, like any good auctioneer, you never want to start the bidding too low.
While it’s certainly tempting to keep things simple and just do a buyout where you charge a flat fee consisting of the engagement fee for the performance and a fee for the rights to the recording, you may be missing out on an opportunity to get creative and explore the possibilities to look beyond the fees and maximize the potential of the entire project to benefit your ensemble.
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For additional information and resources on this and other legal and business issues for the performing arts, visit ggartslaw.com
To ask your own question, write to lawanddisorder@musicalamerica.org.
All questions on any topic related to legal and business issues will be welcome. However, please post only general questions or hypotheticals. GG Arts Law reserves the right to alter, edit or, amend questions to focus on specific issues or to avoid names, circumstances, or any information that could be used to identify or embarrass a specific individual or organization. All questions will be posted anonymously.
__________________________________________________________________
THE OFFICIAL DISCLAIMER:
THIS IS NOT LEGAL ADVICE!
The purpose of this blog is to provide general advice and guidance, not legal advice. Please consult with an attorney familiar with your specific circumstances, facts, challenges, medications, psychiatric disorders, past-lives, karmic debt, and anything else that may impact your situation before drawing any conclusions, deciding upon a course of action, sending a nasty email, filing a lawsuit, or doing anything rash!
Tags:artist, box office, Brian Taylor, CD, composer, Goldstein, music, musician, negotiation, payment, recording, royalties, Tour, venue
Posted in Agents, Artist Management, Arts Management, Contracts, Copyrights, Law and Disorder: Performing Arts Division, Licensing, Music Rights, Recordings | Comments Closed
Thursday, April 3rd, 2014
By Brian Taylor Goldstein, Esq.
Dear Law and Disorder:
I have written a one-man show. Do I need to get a dramatic license for background music?
Just to make sure we’re all on the same page, let’s review:
In order for music to be “performed” (either live or via a recording) in a public place, there needs to be a “performance license.” Most often, these licenses are obtained from one of the performance rights organizations (ASACP, BMI or SESAC) and, most often, they are obtained by the theater, concert hall, or venue where the performance is taking place.
In order to perform music “dramatically”—that is, to use a composition as an integral part of a story or plot, or to interpret the composition dramatically, such as through the use of movement, costumes, and props—you must obtain a “dramatic license.” Most often, these licenses are obtained by the composer or producer of the dramatic work.
In short, you will always need a performance license to “perform” music. Whether or not you also need to obtain a “dramatic license” depends on the context of how you are using the composition. These contextual distinctions can be articulated as follows: if you plan to stand and perform, you only need a performance license. If, on the other hand, your performance involves sets and costumes and you will be performing the composition to help tell a story, develop a character, or interpret the composition, you will need both a dramatic license as well as a performance license.
In your case, your answer depends on what you mean by “background music.” If the music is being used purely to create a mood or theme and could easily be replaced with other music with a similar mood or theme (ie: “insert disco music here” or “play something peppy here”), then you only need a performance license. If, on the other hand, your show requires a specific work to be performed in the background at a specific time to help you dramatically convey a specific emotion or event in your narrative (ie: “Somewhere Over The Rainbow” plays in the background while you tell the story of the tornado that dropped a house on your sister), and the thought of replacing that work with anything else renders you heartsick and artistically impotent, then you need a dramatic license.
If you plan on re-recording the works (or recording your own performance), changing the orchestrations, or otherwise making any significant changes or adaptations other than those written by the composer, other licenses may be required as well. As a general rule of thumb, when using any creative material you did not create yourself, its always safest to ask first and use later.
_________________________________________________________________
For additional information and resources on this and other legal and business issues for the performing arts, visit ggartslaw.com
To ask your own question, write to lawanddisorder@musicalamerica.org.
All questions on any topic related to legal and business issues will be welcome. However, please post only general questions or hypotheticals. GG Arts Law reserves the right to alter, edit or, amend questions to focus on specific issues or to avoid names, circumstances, or any information that could be used to identify or embarrass a specific individual or organization. All questions will be posted anonymously.
__________________________________________________________________
THE OFFICIAL DISCLAIMER:
THIS IS NOT LEGAL ADVICE!
The purpose of this blog is to provide general advice and guidance, not legal advice. Please consult with an attorney familiar with your specific circumstances, facts, challenges, medications, psychiatric disorders, past-lives, karmic debt, and anything else that may impact your situation before drawing any conclusions, deciding upon a course of action, sending a nasty email, filing a lawsuit, or doing anything rash!
Tags:artist, bmi, Brian Taylor, composer, composition, dance, dramatic license, Goldstein, music, orchestrations, performance license, performance rights, recording, sesac, venue
Posted in Artist Management, Arts Management, Copyrights, Law and Disorder: Performing Arts Division, Music Rights, Publishing, Venues | Comments Closed
Thursday, February 6th, 2014
By Brian Taylor Goldstein, Esq.
Dear Law and Disorder:
A composer has been commissioned to write an ‘original’ work for a particular soloist or specific chamber ensemble. The commission agreement stipulates that the performing artist is granted exclusivity, giving the artist a certain period of time in which he/she has the sole right to perform the new work for a specified length of time. During that period, the composer has an opportunity to expand the work, making certain modifications and reconfiguring the piece for a different and larger group, such as a chamber orchestra or full orchestra. Can the new work, although based on the originally commissioned score, be considered sufficiently different in its new configuration, to be exempt from the exclusivity requirements, outlined in the original commission?
One of the cornerstones of English Common Law is the principal that: Everything which is not forbidden is allowed. However, this presumes that with such freedom comes the wisdom to discern that everything which is permitted is not necessarily advisable. For example, the fact that we are legally entitled to eat as many deep fried twinkies as we wish, does not necessarily mean that we should.
As we’ve discussed before in this blog, when a composer is commissioned to write a new work the mere act of paying for the work to be composed does not in and of itself convey anything to the commissioner—other than the pleasure and fulfillment of facilitating the act of creation. If the commissioner wants the rights to perform or record the work, or wants a specific artist to be able to perform or record the work, such rights must be specified in the commission agreement. Otherwise, all rights to the commissioned work are exclusively owned and controlled by the composer—including the rights to modify, amend, re-arrange, re-configure, re-orchestrate, and do anything else with the work the composer chooses.
If the commission agreement includes the right for a soloist or ensemble to perform the work for a certain period of time, then the commission agreement must also specify exactly what rights are being conveyed. Anything not specified, belongs to the composer. For example, does the soloist or ensemble have the exclusive right to perform the work as titled or can the composer grant permission for other artists to perform it under a different title? More importantly, how is the word “work” defined? Does the artist’s right to perform the “work” include the right to perform modifications, changes, edits, re-orchestrations, re-configurations, or other variations of the work? Can the artist make such changes herself or only with the composer’s permission? Even if the artist has no rights to such changes or variations, does the artist’s rights of exclusivity prohibit the composer from composing variations and re-orchestrations and permitting other artists and ensembles to perform them? It all depends on what is in the commission agreement.
I’m going to go out on a limb here and assume that the commission agreement in your “hypothetical” lacks any specific definition of “exclusivity.” Given the almost visceral fear in the arts industry of any contractual terms longer than a postage stamp, this is a reasonable assumption. That being the case, then the artist or ensemble only has exclusivity with regard to the work exactly as written and the composer is free to make re-orchestrations, variations, derivations, and arrangements and allow other artists to perform them. However, the fact that the composer is free to do so, does not necessarily mean that it is advisable.
It’s an equally reasonable assumption that the commissioner, rightly or wrongly, presumed that the exclusive right for the artist or ensemble to perform the work inherently included anything that sounded like the work. Admittedly, the commissioner should never have entered into a contract, much less allowed money to change hands, based on a presumption. However, taking advantage of either a misplaced presumption or even a contractual oversight or will not only serve to poison the composer’s reputation for future commissions, but add a significant debt to the composer’s karma bank. In short, my contractual analysis notwithstanding, I would strongly urge the composer to discuss his opportunity to expand the work with the artist and the commissioner before he or she starts heading for the twinkie stand.
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For additional information and resources on this and other
legal and business issues for the performing arts, visit ggartslaw.com
To ask your own question, write to lawanddisorder@musicalamerica.org.
All questions on any topic related to legal and business issues will be welcome. However, please post only general questions or hypotheticals. GG Arts Law reserves the right to alter, edit or, amend questions to focus on specific issues or to avoid names, circumstances, or any information that could be used to identify or embarrass a specific individual or organization. All questions will be posted anonymously.
__________________________________________________________________
THE OFFICIAL DISCLAIMER:
THIS IS NOT LEGAL ADVICE!
The purpose of this blog is to provide general advice and guidance, not legal advice. Please consult with an attorney familiar with your specific circumstances, facts, challenges, medications, psychiatric disorders, past-lives, karmic debt, and anything else that may impact your situation before drawing any conclusions, deciding upon a course of action, sending a nasty email, filing a lawsuit, or doing anything rash!
Tags:artist, Brian Taylor, commissions, composer, contract, contractual terms, exclusivity, Goldstein, music, orchestra, orchestrations, permission, Variations
Posted in Agents, Artist Management, Arts Management, Contracts, Copyrights, Law and Disorder: Performing Arts Division, Licensing, Music Rights, Publishing, Recordings | Comments Closed
Thursday, January 23rd, 2014
By Brian Taylor Goldstein, Esq.
Greetings,
I have recently been contacted by ASCAP asking for fees based on music played by live musicians. Are we required to pay if we do not pay the musicians? Any musician who plays at the location is not compensated for their efforts.
Is anyone else who works at or for your location compensated for their “efforts”? Waiters? Staff? Vendors or suppliers? Do you have to pay for liquor if you give it away? Who pays for the electricity or the heat? People can always agree to donate goods and services, and many do. However, as a general rule, society discourages the involuntary donation of other’s property without their permission—even if it’s for a really good cause.
A musical composition—just like a computer, a watch, or a car—is considered property. It is no less valuable—indeed, I would argue, it is of greater value—than anything else you are required to pay for that has a physical price tag attached. A musical composition belongs to the composer who wrote it and/or the composer’s publishing company. Under US Copyright Law, whoever owns a musical composition also has the absolute right to control and determine all uses of the property—this includes the right to perform the music live, record the music, play a recording of the music for the public, change the lyrics, make arrangements, or just about anything else you can think of to do with music. Any location where music is performed—whether it’s a theater, concert hall, or other venue (for-profit or non-profit) where music is performed live or whether it’s a restaurant or store that plays recorded music for their patrons’ listening pleasure whilst shopping or eating—needs to obtain the composer’s permission and, in most cases, pay a usage fee called a “Performance License.”
ASCAP, like BMI and SESAC, is an organization that represents composers and helps them by issuing performance licenses and collecting fees on behalf of the composer. It helps locations, too, because, rather than having to contact every composer individually, you can purchase a performance license from ASCAP to cover all of the composers they represent. It’s like one-stop shopping. However, as they don’t represent every composer, most locations need to purchase licenses from BMI and SESAC, as well.
If your musicians are performing original music they composed themselves, then they can certainly agree to perform their own music for free. However, if they are playing (“covering”) music composed by other artists, then just because the musicians agree to perform for free doesn’t mean that the composers have allowed their music to be performed for free as well. If ASCAP contacted you, it’s because music is being performed in your location and ASCAP is trying to ensure that you have obtained permission from each composer they represent to have their music performed. While there are a number of factors that can determine the cost of obtaining performance licenses—the size of your venue, the price of tickets, the number of performances, etc.–ultimately, it’s your responsibility to ensure that the necessary permissions and licenses are obtained.
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For additional information and resources on this and other legal and business issues for the performing arts, visit ggartslaw.com
To ask your own question, write to lawanddisorder@musicalamerica.org.
All questions on any topic related to legal and business issues will be welcome. However, please post only general questions or hypotheticals. GG Arts Law reserves the right to alter, edit or, amend questions to focus on specific issues or to avoid names, circumstances, or any information that could be used to identify or embarrass a specific individual or organization. All questions will be posted anonymously.
__________________________________________________________________
THE OFFICIAL DISCLAIMER:
THIS IS NOT LEGAL ADVICE!
The purpose of this blog is to provide general advice and guidance, not legal advice. Please consult with an attorney familiar with your specific circumstances, facts, challenges, medications, psychiatric disorders, past-lives, karmic debt, and anything else that may impact your situation before drawing any conclusions, deciding upon a course of action, sending a nasty email, filing a lawsuit, or doing anything rash!
Tags:artist, ascap, bmi, Brian Taylor, composer, composers, composition, copyright, copyright law, Goldstein, license, music, musical composition, musician, original music, performance license, permission, recording, sesac, venue
Posted in Artist Management, Arts Management, Copyrights, Law and Disorder: Performing Arts Division, Licensing, Music Rights, Publishing, Recordings, Venues | Comments Closed
Thursday, December 12th, 2013
By Brian Taylor Goldstein, Esq.
An orchestra wants to commission a composer we represent to create an arrangement of a piece they want to perform. We were hoping that our composer would retain ownership of the arrangement so that in the future if the orchestra, or anyone else, ever wanted to play his arrangement, he would get a royalty. However, the most important thing is that we want the composer get credit for the arrangement whenever it is performed. In the commission agreement they sent us it says that the orchestra will get the right to perform the arrangement for one year, but it also says that: “Artist agrees that this work stated above shall not generate further monetary remuneration to the Artist (ie: a “work for hire”).” This doesn’t make any sense. If we agree to this, would our composer at least get credit ever time his arrangement is performed?
You’re correct. The commission agreement contains conflicting terms. It’s bad enough when attorneys use “legalese”, but when normal people try to use legal phraseology that they do not understand–or, worse, that they “think” they understand—chaos, rather than clarity, often ensues.
As a general rule, the person who creates something automatically owns it and controls all rights. The mere fact that you pay someone for their services does not inherently mean that you own the work they produce or have any rights to the work. For example, paying someone to design your website does not mean you also purchase ownership of the design or have any rights to use the design. Similarly, commissioning someone to provide creative services (such as composing music) does not mean that you own the material they create or have any rights to perform the composition. All rights remain with the author of the work unless either there is an agreement between the parties specifying rights and ownership or the work constitutes a “work for hire.”
A “work-for-hire” means that the person who paid for the work is considered to be the author and owns all rights to the work. However, under U.S. copyright law, a “work-for-hire” occurs in only one of two very specific scenarios:
1) When an employee creates material for an employer within the scope of the employee’s employment, the employer and not the employee is considered to be the author and the employer automatically holds the copyright. The employee gets nothing but a pay check; or
2) A work is specially ordered or commissioned for use as a contribution to a collective work; a part of a motion picture or other audiovisual work; a translation; a supplementary work; a compilation; an instructional text; a test; answer material for a test; or an atlas AND the parties expressly agree in a written contract signed by both parties that the work shall be considered a work made for hire.
In your case, I am sure that the orchestra believe that merely using the magic words “work for hire” will automatically transfer all rights and ownership in the arrangement to them. It does not. Why? Because although there is a written contract, the arrangement will not be used as a contribution to a collective work; as part of a motion picture or other audiovisual work; a translation; a supplementary work; a compilation; an instructional text; a test; answer material for a test; or an atlas. (Yes, this is a very odd and restrictive list. Blame Congress…while you’re at it, blame the lobbyists for the motion picture industry, text book industry, etc.) Unless both elements are present, it does not create a “work for hire.” If the orchestra wanted to own the arrangement, the commission agreement would need to include an assignment of copyright and a grant of all rights and title. As it doesn’t, if you were to sign the agreement, the orchestra would, in fact, have no rights to the arrangement. However, you’d also be taking advantage of the orchestra’s obvious lack of knowledge of copyright law as, clearly, they believe they would be owning the arrangement. Should they ever attempt to assert their rights, your composer would need to bring a lawsuit to assert his ownership and nullify their claims. This would not only result in needless legal expenses, but probably make any other orchestra think twice about commissioning your composer.
Rather than engage in legal games, if your composer is not willing to transfer ownership to the orchestra, I would strongly advise you to bring that to the orchestra’s attention and discuss the matter. If the orchestra insists on owning the arrangement, then you can decide whether or not to decline the commission or edit the commission agreement to specify the parties’ intentions. Should your composer decide to assign ownership to the orchestra, the parties can always agree that your composer would be given credit as the composer. However, that must also be specified in the contract! Preferably, in English.
__________________________________________________________________
For additional information and resources on this and other legal and business issues for the performing arts, visit ggartslaw.com
To ask your own question, write to lawanddisorder@musicalamerica.org.
All questions on any topic related to legal and business issues will be welcome. However, please post only general questions or hypotheticals. GG Arts Law reserves the right to alter, edit or, amend questions to focus on specific issues or to avoid names, circumstances, or any information that could be used to identify or embarrass a specific individual or organization. All questions will be posted anonymously.
__________________________________________________________________
THE OFFICIAL DISCLAIMER:
THIS IS NOT LEGAL ADVICE!
The purpose of this blog is to provide general advice and guidance, not legal advice. Please consult with an attorney familiar with your specific circumstances, facts, challenges, medications, psychiatric disorders, past-lives, karmic debt, and anything else that may impact your situation before drawing any conclusions, deciding upon a course of action, sending a nasty email, filing a lawsuit, or doing anything rash!
Tags:Brian Taylor, composer, composition, conflict, contract, copyright, copyright law, Goldstein, orchestra, royalty, work
Posted in Agents, Artist Management, Arts Management, Contracts, Copyrights, Law and Disorder: Performing Arts Division, Licensing, Music Rights, Presenters, Publishing, Recordings | Comments Closed
Thursday, November 21st, 2013
By Brian Taylor Goldstein, Esq.
Dear Law and Disorder:
I was wondering if I have my own blog and post a music video from iTunes in the blog, giving full credit to the musician, including the musician’s original link, would this be legal? And can you please specify on what full credit means. Further, if I can’t do this, how do you go about getting permission from the musician?? Thank you!
A “copyright” is literally the right to make copies. A copyright “infringement” is when you make a copy of something without the owner’s permission.
Almost everything you can find on the internet (photos, images, videos, text, etc.) is someone else’s property. Part of the challenge of understanding digital rights is that the ease with which we can download and copy materials on the internet tends to make us forget that copying any materials without permission is still copyright infringement.
Without question, many people post pictures, videos, and other materials and are more than happy to have others repost and share them; but that decision is entirely up to the person who owns the materials. In other words, just because a car is parked on the street, doesn’t mean its free for the taking.
Purchasing and downloading a video from itunes only gives you the right to enjoy it. It doesn’t give you the right to re-post or copy the video. As such, posting someone else’s video on your blog would constitute copyright infringement unless you had permission from the owner of the video.
If you are commenting on or reviewing the video or the artist, then, arguably, you might be able to claim that posting the video constitutes “fair use.” However, the more of an item you post, the less “fair use” it becomes. So, an excerpt of a video is more likely to be “fair use” than posting the entire video. The better option would be for you to post a link to the video rather than post the video itself. In other words, you would be inviting your readers to go to itunes or the artist’s own website to view the video. This way, the owner can control whether or not they want the video to be shared.
I know many people who subscribe to the theory that, in practical terms, you should post anything you want until someone tells you to take it down. However, in practical terms, that’s also called “really bad advice.”
As for giving “full credit”, giving an owner credit in any form or manner neither gives you any rights to post materials nor absolves you of copyright infringement. Stealing a car, but leaving a thank you note crediting the owner, doesn’t make it any less a crime. If you want to get actual permission to repost a video, photograph, or any other copyrighted material, then you need to get permission (aka “a license”) from the owner—which may or may not be the artist. More often than not, video rights are controlled by record labels. Nonetheless, when seeking licenses, the best place to start is always the musician’s publisher, manager, or agent.
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For additional information and resources on this and other legal and business issues for the performing arts, visit ggartslaw.com
To ask your own question, write to lawanddisorder@musicalamerica.org.
All questions on any topic related to legal and business issues will be welcome. However, please post only general questions or hypotheticals. GG Arts Law reserves the right to alter, edit or, amend questions to focus on specific issues or to avoid names, circumstances, or any information that could be used to identify or embarrass a specific individual or organization. All questions will be posted anonymously.
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THE OFFICIAL DISCLAIMER:
THIS IS NOT LEGAL ADVICE!
The purpose of this blog is to provide general advice and guidance, not legal advice. Please consult with an attorney familiar with your specific circumstances, facts, challenges, medications, psychiatric disorders, past-lives, karmic debt, and anything else that may impact your situation before drawing any conclusions, deciding upon a course of action, sending a nasty email, filing a lawsuit, or doing anything rash!
Tags:artist, blogs, Brian Taylor, copy, copyright, copyright infringement, Goldstein, image, images, license, permission, photo, photograph, record label, Review
Posted in Arts Management, Copyrights, Law and Disorder: Performing Arts Division, Licensing | Comments Closed
Wednesday, August 21st, 2013
By Brian Taylor Goldstein, Esq. Dear Law and Disorder: Several years ago, our small ensemble hired a composer to arrange and re-orchestrate a work for us to play. The work itself, which is still under copyright, was originally written and arranged for a large orchestra. Recently, we made a video of our group performing the piece, put it on YouTube, and the composer’s publisher had it taken down. The publisher also told us that the composer had not authorized any arrangements or re-orchestrations. They also told us we couldn’t even perform it live anymore. Is this true? Even though we paid for the re-arrangement ourselves? Even though we have always obtained performance licenses through BMI? We have been performing this arrangement for years and the publisher has never objected before. It doesn’t seem fair. We have engagements in 2013/2014 to specifically perform this piece as part of our repertoire. When you obtain a performance license through ASCAP, BMI or SESAC, you obtain the right to perform a work as written. This includes the right to “interpret” the work to reflect your own style, artistry, expression, etc. However, it does not include the right to re-orchestrate or re-arrange a work in a manner that changes the fundamental nature of the work. For example, obtaining a performance license to perform a work written for a chamber ensemble does not give you the right to “re-arrange” it for four banjos and a zither—as tempting as that may be! The fact that you paid for the re-arrangement doesn’t give you any rights to perform it, if the re-arrangement itself was unauthorized. That’s like stealing a car, but arguing that it wasn’t a crime because you paid for the gas. (My partner, Robyn, says I never met an analogy I didn’t like…so let’s go with that.) However, on the plus side, such as it is, should the composer/publisher of the work ever decide they like your arrangement, they can’t use it without your permission either. The right to the re-arrangement belong to the owner of the re-arrangement—which could be your ensemble or the composer of the re-arrangement, depending on how your commission agreement was drafted. (Remember, the mere act of paying for something doesn’t inherently convey any rights.) The fact that you have been performing this arrangement to date without any trouble might buy you an argument—albeit a weak one—that your past performances were “implicitly” licensed. However, now that the publisher has officially told you that your arrangement is unauthorized, any future performances beyond this point would constitute copyright infringement. The line has been drawn. I know it doesn’t seem fair when a composer, author, publisher, or copyright owner refuses to give you the rights you need—especially in a situation such as yours where your arrangement obviously has artistic merit or else you wouldn’t be getting engagements to perform it. However, bear in mind that those same rules also protect your own rights. Imagine your position if someone had taken that video you posted on YouTube and, without your permission, altered it or used it in such a way that you found artistically objectionable. You would be just as adamant that they must stop. Also, bear in mind that its almost always easier (not to mention legally required) to get rights by asking and negotiating ahead of time, rather than taking what you want and then asking for forgiveness or permission after the fact. It’s the difference between borrowing and stealing a car. __________________________________________________________________ For additional information and resources on this and other legal and business issues for the performing arts, visit ggartslaw.com To ask your own question, write to lawanddisorder@musicalamerica.org. All questions on any topic related to legal and business issues will be welcome. However, please post only general questions or hypotheticals. GG Arts Law reserves the right to alter, edit or, amend questions to focus on specific issues or to avoid names, circumstances, or any information that could be used to identify or embarrass a specific individual or organization. All questions will be posted anonymously. __________________________________________________________________ THE OFFICIAL DISCLAIMER: THIS IS NOT LEGAL ADVICE! The purpose of this blog is to provide general advice and guidance, not legal advice. Please consult with an attorney familiar with your specific circumstances, facts, challenges, medications, psychiatric disorders, past-lives, karmic debt, and anything else that may impact your situation before drawing any conclusions, deciding upon a course of action, sending a nasty email, filing a lawsuit, or doing anything rash!
Tags:ascap, bmi, Brian Taylor, copyright, copyright infringement, engagements, Goldstein, orchestrations, performance license, permission, youtube
Posted in Artist Management, Arts Management, Contracts, Copyrights, Law and Disorder: Performing Arts Division, Licensing, Music Rights, Publishing, Recordings | Comments Closed
Wednesday, August 7th, 2013
By Brian Taylor Goldstein, Esq. Dear Law and Disorder: Since ASCAP does not cover dance or theatrical performances, how does a dance group go about getting the appropriate permissions/ copyright releases needed for their performance? Another word for “permission” or “copyright release” is “license.” Dance performances, like theatrical performances such as opera or theater, as well as any other performance of music other than a concert, most often require two types of licenses for their performances: (1) a “Performance License” which is required for music to be performed (either live or via a recording) and (2) a “Dramatic License” for the music to be interpreted dramatically either through choreography or by performing the music as part of a play, musical, or opera. While ASCAP (as well as BMI and SESAC) does not issue dramatic licenses, they do issue performance licenses. Typically, most venues, theaters, presenters, etc. will obtain yearly blanket performance licenses from ASCAP, BMI and SESAC which allow the music in the ASCAP, BMI and SESAC catalogs to be performed in the venue. In such cases, that means you would only be required to get dramatic licenses for your group’s performances. However, not every venue obtains ASCAP, BMI and SESAC blanket performance licenses. Some erroneously believe that non-profits are somehow exempt from such licenses. Others believe it is the artist’s responsibility while others simply hope they won’t get caught. There are also instances where the music you want to dance to may not be represented by ASCAP, BMI or SESAC. Regardless of the reason, in instances where either the venue doesn’t have a performance license or the performance license doesn’t cover the music you need, you will be required to obtain both performance licenses as well as dramatic licenses. As for how your group actually obtains the necessary licenses, you would need to identify the composer or publisher of each musical work you want to use in your performance and contact the composer or publisher directly. Identifying composers and publishers isn’t actually that hard. ASCAP, BMI and SESAC maintain free, searchable databases, as does the Copyright Office website. You can also search the databases of other licensing organizations such as the Harry Fox Agency (which issues mechanical licenses.) You may have to be persistent and allow for lots of time. Not every composer or publisher will respond right away—or even respond at all. You may need to make repeated requests. If you don’t’ get a response, assume the answer is “no” and select different music. “Silence” is never golden which it comes to licensing. Also, just because you request a license doesn’t mean the composer or publisher will agree. And even if they agree, they can charge whatever they want. Composers and/publishers are free to be as arbitrary as they want when it comes to issuing licenses and setting fees. As I frequently remind everyone, there is no such thing as “industry standard.” If all of this seems daunting, keep in mind that, more often than not, you will be able to get the licenses you need provided you invest the necessary time and attention. Do not leave the licensing process to the last minute and do not assign this task to a volunteer intern helping out at your office. Also, bear in mind that the same rules that may seem to thwart your ability to use the music you want also protect you when it comes to controlling the ability of other dance groups to copy and perform works that you create and control. If all else fails, consider supporting a composer and commissioning your own music. _________________________________________________________________ For additional information and resources on this and other legal and business issues for the performing arts, visit ggartslaw.com To ask your own question, write to lawanddisorder@musicalamerica.org. All questions on any topic related to legal and business issues will be welcome. However, please post only general questions or hypotheticals. GG Arts Law reserves the right to alter, edit or, amend questions to focus on specific issues or to avoid names, circumstances, or any information that could be used to identify or embarrass a specific individual or organization. All questions will be posted anonymously. __________________________________________________________________ THE OFFICIAL DISCLAIMER: THIS IS NOT LEGAL ADVICE! The purpose of this blog is to provide general advice and guidance, not legal advice. Please consult with an attorney familiar with your specific circumstances, facts, challenges, medications, psychiatric disorders, past-lives, karmic debt, and anything else that may impact your situation before drawing any conclusions, deciding upon a course of action, sending a nasty email, filing a lawsuit, or doing anything rash!
Tags:ascap, bmi, Brian Taylor, choreography, copyright, dance, dance group, dance performances, dramatic license, Goldstein, license, Licensing, music, necessary licenses, non profits, performance license, permission, release, sesac, theaters, theatrical performances, venue
Posted in Arts Management, Copyrights, Law and Disorder: Performing Arts Division, Licensing, Non-Profits, Presenters | Comments Closed
legal and business issues for the performing arts, visit ggartslaw.com