By Brian Taylor Goldstein, Esq. Dear Law and Disorder: In all of my artist’s booking contracts, the presenters are required to obtain ASCAP, BMI and SESAC licenses. I recently received a contract back from a venue in which they crossed out that language. They told me that their policy is not to get these licenses and that the artist is responsible for obtaining them. It was my understanding that it was always the venue’s or presenter’s responsibility to obtain the performance licenses from ASCAP, BMI, and SESAC. Am I wrong? You’re not wrong, but you’re not entirely correct either. The truth is that it is the legal responsibility of all parties to make sure that the proper licenses have been obtained for a performance. Which party actually obtains them and who bears the costs is a matter for negotiation. Whether it’s a festival, a school, a nightclub, or a large performing arts center, non-profit or for-profit, it’s the legal responsibility of the owner/operator of a performance space/venue to ensure that the necessary rights and licenses have been obtained with respect to all copyrighted music which is performed at that venue. (Actually, this legal responsibility is not limited to performance rights, but extends to dramatic rights, synchronization rights, broadcast rights, and all other required rights and licenses which pertain to music, images, trademarks, recordings, images, or other protected rights or materials which are used as part of the performance.) However, it’s equally the legal responsibility of the artist, and in some cases, the producer and promoter, to ensure that they have all of the required rights and licenses, including performance licenses from ASCAP, BMI and SESAC. Why? Because if an unlicensed song is performed at a venue, then the US Copyright Act allows all the parties involved in the performance—the artist as well as the venue/presenter, the producer, the promoter, and anyone else involved in the performance—to be sued by the publisher or copyright owner. Stealing a song is like robbing a bank: the entire gang is arrested; regardless of who broke open the safe, who drove the get away car, or who simply served as look out, they all participated in the robbery. I am familiar with many venues which do not want to be burdened with the perceived cost and difficulty of obtaining performance licenses (which, depending upon the specific circumstances, may be neither costly nor particularly difficult), refuse to do so, and insist on the artist obtaining the licenses. However, in my opinion, for reasons I have written about in earlier blogs, this is a foolish policy. In practice, it’s simple easier for venues and presenters to obtain ASCAP, BMI and SESAC licenses than the artist. The venue can purchase a blanket license from each organization that permits all of the music in their catalogs to be performed by any artist at the venue during the license period. These licenses can cover an entire year or just a specific festival or event, and are priced based on numerous factors, including number of performances, ticket prices, size of the venue, etc. With the blanket licenses in place, the artist simply needs to show up. If a venue or presenter prefers not to obtain such licenses, then the artist or performer can certainly do so themselves. However, if no one obtains the licenses, then everyone is liable. Quite simply, whether the venue/presenter requires the artist to obtain the performance licenses or the artist insists that the venue/presenter obtains the performance licenses, passing the responsibility on to another party will not relieve either party from ultimate responsibility if the other party fails to do so. In other words, there is no contract, release, or any other document which will protect you from liability should the necessary licenses not be obtained. This is why, among other reasons, if I operated a venue, I would much rather rely on myself to obtain the licenses than depend upon another party to do so. In your case, if the venue refuses to obtain the ASCAP, BMI or SESAC licenses, then you and your artist have two options: either the artist agrees to obtain the licenses or the artist refuses to perform. Electing to proceed under the expectation that no one will get caught or the publishers and copyright owners will not sue small artists or struggling non-profits is not an option; that’s the same as robbing a bank and hoping the police won’t find you. Not to mention, in an industry where so many purport to operate under the noble purpose of promoting the value of art and artists, I can’t imagine the rationalization of stealing it for any purpose, regardless of how noble. _________________________________________________________________ “Law and Disorder: Performing Arts Division” will be taking a break between July 1 – July 14. Our next post will be on July 17. _________________________________________________________________ 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!
Archive for the ‘Copyrights’ Category
Who’s Responsible For Performance Licenses?
Wednesday, June 26th, 2013When To Negotiate A Contract
Tuesday, April 30th, 2013By Brian Taylor Goldstein, Esq.
Dear Law and Disorder:
A successful duo I represent has recorded a CD which is being released by a record company. Although the artist made attempts to obtain a contract, because of time restraints, according to the record company, it was only possible to give a contract AFTER the recording was made. The terms include exclusivity universally for several-year options, and although the company paid for the recording and manufacture of the cd, these costs will come out of the royalties. The company controls the cd universally with power of attorney from the artists. To obtain copies, the artists buy the cd at a reduced price. The company insists these are normal terms which are standard practice and always given after the recording is made. This is news to me. Can this be true?
In my ideal world, among other things on my wish list, every artist, manager, agent, presenter, producer, arts lawyer, and arts administrator would have a sign above their desks stating: “Nothing is Standard!” While it is true that there are many terms and practices which are more common than others and while it is also true that certain financial arrangements and commitments will necessarily lend themselves to certain expectations in return, everything is negotiable. This does not, of course, mean that you will get everything you want. Rather, depending on the negotiating strengths of the parties, everyone is free to ask and propose whatever they want. Think outside the box. Get creative.
However, while creative proposals may be limitless, the time to propose them is not. The time to negotiate is before services are rendered, significant time is spent, or money changes hands. Thus, the real issue at the heart of your question is your comment that “because of time restraints, according to the record company, it was only possible to give a contract after the recording was made.” In my experience, I have yet to encounter a situation that was so dire and immediate that at least some basic understandings of key terms could not be mutually agreed upon ahead of time.
Sadly, it’s not uncommon in the arts and entertainment world for the artistic aspects of a project to proceed on a completely separate track and pace from the administrative and business details. New works are created or composed before the commission agreements are in place. Recordings are made before the recording contracts are signed. Engagements are scheduled and sometimes even performed with no engagement agreements. I’ve even known artists to collaborate with one another and then try, almost always unsuccessfully, to negotiate a collaboration agreement after the work has been optioned for production.
Of course, some of this is understandable. Contractual terms can be confusing, especially when the parties are unfamiliar with business practices and terminology. Also, it can take such considerable effort just to coordinate the funding, schedules, and parties that no time is left for negotiating contractual terms. Also, its not uncommon for different individuals and departments within a large organization or institution to address artistic planning and scheduling separate and apart from contractual and business planning without communicating or coordinating with one another. But, whatever the reason, this phenomenon is unfortunate because it makes it much harder to negotiate favorable terms or, at the very least, to manage expectations, avoid potential conflicts, and make informed decisions.
The biggest—and, often, only—power an artist has in a negotiation is the power of “no”—that is, the power to say: “I’d rather pause for a moment, even it means losing the deal or opportunity, than enter blindly into a relationship where I may have no control over my creative services.” Of course, it can be equally bad for record companies, producers, and presenters who can find themselves investing both time and money without getting the rights or return they anticipated. While saying “no” or “stop” can sometimes cause a lost opportunity, the alternative is a bad or unfavorable deal that, ultimately, could prove worse.
Without a doubt, legitimate practicalities, including artist availability and opportunity costs, can often make it difficult for a formal contract to be drafted up in advance of every occasion. However, there is rarely a legitimate reason why parties cannot at least mutually agree upon basic terms, with a more formal agreement to follow. Remember, a contract is a written memorialization of an existing agreement. Until an agreement exists, there is nothing to memorialize. Without terms agreed upon ahead of time, there is no contract to draft.
In any situation, if time is of the essence, never wait for the other party to provide a contract or propose terms. You may need to make the first move. In your situation, if the record company refused to provide a contract, then your artists could have proposed their own terms or set out their own requirements for proceeding with the recording. If your artists are truly as “successful” as you indicate then chances are the record company would have agreed to an outline of reasonable terms. When you say that your artists “made attempts”, that should have included writing:
“Dear Record Company, while we are very excited about the prospect of working together, unless we can arrive at a mutual agreement of some basic terms, we will be unable to proceed with the recording as scheduled. Thus, we are proposing the following…..”
Contractual terms do not, and should not be, a confusing quagmire of legalese. Write your proposals in clear, understandable language. The key is to be detailed, not convoluted. As even the most experienced artist managers can find themselves daunted by the prospect of proposing terms for recording contracts and other multi-media deals and transactions, you would be wise to bring in some specialized help.
Ultimately, in your situation, if the record company paid for the recording without negotiating the contract, then they took the risk that no agreement would be reached and that your artists could simply refuse to permit the recordings to be released. That would leave the recording company with a worthless product. Of course, your artists wouldn’t own recordings they didn’t pay for, so they would have nothing to show for their time. Everyone loses. Hopefully, the potential of mutual self-destruction will force the parties into coming up with the reasonable compromise that should have been agreed to ahead of time.
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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!
Using Existing Recordings–Not So Fast!
Wednesday, April 10th, 2013By Brian Taylor Goldstein, Esq.
Dear Law and Disorder:
A few weeks ago you wrote a great article about how to obtain a mechanical license when someone wants to record music. But what about using a recording that already exists? We would like to promote an upcoming concert at our venue by putting some recordings of the artist on our website. Since the artist gave us the recordings, are we ok?
Thanks…and no, you may not be ok.
Any time you want to use an existing recording of a composition, whether to put on your website, or as a soundtrack to a film or video, you will need to get permission (aka “a license)” from the composer (which often means contacting the composer’s publisher) as well as permission (aka “a license”) from the owner of the recording (which is often a record label.) That’s right, you may need to get two separate licenses! Why? Because copyright law creates a separate copyright in compositions and a separate copyright in the recording of a composition.
Just because an artist or an artist’s manager gives you a recording and gives you permission to use that recording, doesn’t mean that the artist owns the recording or has the rights to give. Even if it is a recording of the artist’s own original composition or if the composition itself is in the public domain, the artist may not own the recording. In which case, the artist cannot give you permission to use it, much less the artist’s manager.
Shortly after I posted the earlier blog you mentioned (The Mechanics of Mechanical Licenses, March 6, 2013), Peter Christ of Crystal Records Inc. (http://www.crystalrecords.com) sent me an email which exactly and accurately addressed this issue. He graciously agreed to let me post it here:
Your explanation was very clear and should help those who want to record music that is not public domain. However, it does not address the situation of a person who wants to use a recording already made, and on a record label, for their web site or their movie or other background music use. It should be made clear that the publisher needs to be contacted and ALSO the record label or other copyright owner of the recorded music.
We sometimes find out that our copyrighted recordings are being used as background music for films or on someone’s web site. This is not legal without our permission, and when it is discovered, the legal expenses can be very high for the perpetrator.
Some people want to do it right, and we frequently get requests for license to use our recordings for films, web, etc. We always appreciate that someone is honest and knowledgeable enough to request a license. However, in most cases, they do not realize they need a license both from the record company and from the publisher of the music. And in many cases, the music was recorded under an AFM contract and additional payment must be made through the union to the musicians on the recording. It should be pointed out that even if the music itself is public domain, the recording is most likely not, so permission from the record company, and possibly the union, is definitely needed. So the two minutes or so they want to use can get quite expensive.
Thank you for your excellent column in Musical America.
See, I don’t make this stuff up just to make your lives complicated! Bottom line, when it comes to music rights there are three rules: never assume—always ask—and know who to ask.
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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!
The Mechanics of Mechanical Licenses
Wednesday, March 6th, 2013By Brian Taylor Goldstein, Esq.
Dear Law and Disorder:
Does all music (if not in public domain) require a mechanical license to be recorded? I don’t quite understand when it is needed and when a person could pay a statutory fee and move forward without permission.
Yes, anytime you want to make an audio recording (whether you want to go into a studio or record live performance), you must obtain a “Mechanical License” from the publisher or the copyright owner(s) of the song or music you wish to record. A “Mechanical License” is the permission issued to a licensee (typically a record company or someone recording a cover song for their independent release) granting the licensee the right (ie: permission) to make and distribute an audio recording of a specific composition at an agreed-upon fee, per unit manufactured and distributed.
If the music has never been recorded and publicly distributed before and yours will be the first recording, then you will need to seek a Mechanical License directly from the publisher or copyright owner(s) who are free either to refuse to grant you the license or charge you whatever license fee they want. However, once a musical composition has been recorded and publicly distributed, the U.S. Copyright Act provides for a “Compulsory Mechanical License” to anyone who wants to record and distribute the work provided certain statutory requirements are met: (1) You have to provide notice to the publisher or copyright owner(s) of your intent to claim a Compulsory Mechanical License; and (2) you must pay the applicable Compulsory Mechanical License Fee set forth in the Copyright Act. The Compulsory Mechanical License Fees are set by the U.S. Copyright Office and are updated every few years. Currently, the rate is 9.1 cents or 1.75 cents per minute of playing time or fraction thereof, whichever is greater, per united manufactured and distributed. (Distribution includes both physical copies (ie: CDs) as well as full downloads. Different rates apply for limited-use downloads, ringtones, on-demand streaming.) Provided these requirements are met, the Mechanical License must be granted…the publisher or copyright owner(s) cannot refuse…that’s why it’s “compulsory.”
However, before you start drafting your Grammy-Award acceptance speech, there are few restrictions to keep in mind:
1) Compulsory Mechanical licenses do not apply to dramatic works, such as operas, film soundtracks, ballet scores and Broadway medleys. If you want to record one of these, you will need to seek the Mechanical License directly from the publisher or copyright owner(s) who are free to refuse or charge whatever they like.
2) Compulsory Mechanical licenses are available for audio-only recordings only. If you are making an audio-visual recording, such as a DVD or video, or anything involving visual images, you will need to obtain a “Synchronization License” directly from the publisher or copyright owner(s) who are free to refuse or charge whatever they like.
Compulsory Mechanical Licenses can be obtained through the Harry Fox Agency (www.harryfox.com), which represents most U.S. publishers. Mechanical licenses can also be negotiated directly with the publisher or copyright owner(s).
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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!
Dad, May I Borrow the Car?
Wednesday, February 13th, 2013By Brian Taylor Goldstein, Esq.
Dear Law and Disorder: May we borrow music for an orchestral performance from another organization that purchased this music, but is currently not using it?
When you write that the other organization “purchased this music”, do you mean that they actually purchased all performance rights to the music or merely purchased the score and parts? Did they actually purchase the score and parts or merely rent them?
When it comes to copyrights and performance rights, “physical” possession of an artistic work does not inherently include any rights to the work other than the right to own it and possess it. For example, when you purchase a copy of Harry Potter, you get the right to read it, enjoy it, and place it on your bookshelf. If you like, you can even lend it to a friend or sell your used copy at a flea market. However, purchasing a copy of the book does not give you the right to perform it, interpret it dramatically, make a movie out it, copy and re-print excerpts, or do anything other than enjoy it. Similarly, when you purchase a painting from a gallery, you are purchasing the right to hang it on your wall and enjoy it. Like a book, you can also lend it to a friend or museum, or even re-sell it—but you do not have the right to make copies of it, alter it, post images on your website, use it as your logo, or do anything other than look at it. Those rights must be obtained separately.
Purchasing music works much the same way. The physical ownership of sheet music does not also give you the rights to perform it. Those rights must be obtained separately from the composer or publisher—or, if the composer is a member of a performing rights society (ASCAP, BMI, or SESAC) then you can obtain licenses through the society. So, in your scenario, assuming the other organization purchased the score and parts, then they have the right to loan you the music, but if you want to perform it, then you will need to obtain your own performance rights and licenses. Assuming they only rented the score and parts, then they don’t have the right to loan it to you in the first place. That would be like an illegal sub-let.
Borrowing music is like borrowing a car. First, you have to make sure that the person loaning you the car actually has the right to loan it to you in the first place. (Just because they have the keys, doesn’t mean they own the car.) Second, even if you are allowed to borrow the car, if you want to drive it, you’ll still have to pay for your own gas.
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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!
Commissioners Beware!
Wednesday, January 23rd, 2013By Brian Taylor Goldstein, Esq.
Dear Law & Disorder:
When a composer/songwriter is commissioned to write a song, who owns the copyright to the song? The commissioner or the writer? And for either party, when the other owns the copyright, what kind of controls and/or royalties does the holder have?
As with just about everything in the arts and entertainment industry, these are issues that should be negotiated between the parties. As there are no industry standards (I know I say that a lot, but its worth repeating…there are NO industry standards!), everything is up for grabs in terms of royalties, controls, ownership, etc.
Unfortunately, it’s not uncommon for the parties either not to have a commissioning agreement or for one party merely to “assume” that commissioning a work automatically conveys certain rights. Nothing could be further from the truth. In the absence of a written agreement, copyright law determines ownership and, in such cases, the law is quite simple: the mere act of payment does not convey any rights or ownership. The only exception would be if an employee is paid to create or write something for their employer or if there is a written “work-for-hire” agreement between the parties. Otherwise, the commissioning fee only pays for the artist’s services. Ownership of the underlying work, including all rights, remains with the author.
So, for example, if a commissioner agrees to pay a composer $10,000 to write a concerto, unless there is a specific agreement between the parties that the commission fee includes performance or recording rights, the commissioner is entitled to nothing other than the joy of knowing he or she has paid for beautiful music. If the commissioner also wants to own the song, or record or perform it, then those terms need to be specifically negotiated and agreed to between the parties. This does not necessarily mean that the commissioner is required to pay extra for such rights. Everything is negotiable. It’s perfectly acceptable, and quite common, to include certain performance or recording rights as part of the commission fee. Its also just as common for the composer to be entitled to royalties or other payments in addition to the commission fee. Even in a case where the commission fee includes an assignment of full ownership, the composer can still ask for royalties as well as reserve performance and recordings rights of their own.
In short, all rights must be specified. If you are commissioning music, know what you are paying for. If you are being commissioned, know what you are selling. Never assume!
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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!
Ask, and Ye “May” Receive…or Not
Wednesday, January 9th, 2013By Brian Taylor Goldstein, Esq.
Dear Law and Disorder,
I am a music professor at a medium-sized state college. We have two questions with regard to live streaming some of our concerts and recitals. We, of course, have paid the ASCAP and BMI licenses/fees to cover the rights for live performances. I believe the licensing agencies base the amount of the fee on the size of the school, and we pay a flat amount each year. Does paying those licenses for live performances also cover streaming the concert live? Our department chair believes this to be the case.
The other issue involves archiving the recordings of the concerts, or leaving them on the website for a time after the concert so patrons (e.g., parents of students or any other interested parties) can view the concert at a later date if they had a conflict the day of the original concert and were unable to watch it live. Would this practice also be covered by the licenses or fees we’ve already paid? Is this a grey area in which the law has not yet caught up with the technology, or would this practice be a violation of copyright?
I know of other schools whose music departments are streaming performances. Any clarification you could give on this subject would be most helpful not only to us but to many schools throughout the country.
Some ASCAP/BMI licenses for live performances also cover the right to stream the concert live. However, as with all rights, you only get what you ask and/or pay for. So, if you paid for the right to stream live concerts, then your license covers that. If you only paid for live concerts, then it does not. You need to check the license terms and agreement you received from ASCAP/BMI.
With regard to the issue of “archiving the recordings of the concerts”, the good news is that it is not a grey area at all. The bad news is that it is not a grey area at all. ASCAP/BMI licenses only cover live performances and, in some instances, streaming a live performance. However, making an audio/visual recording of a concert to be seen or heard at a later a date or…gasp…placed on a website for the whole world to access, is quite another. Such rights are called “synchronization rights” and they must be arranged separately. When you purchase the right to perform music at a live concert, there is no “inherent right” to make an archival recording or a recording for “non-commercial” purposes. There is no “inherent right” to make a recording of any performance at any time under any circumstances without the permission of (a) the composer/publisher of the music (assuming the composition is not in the public domain) and (b) the performers themselves.
As opposed to the law not catching up with technology, this is more of an issue where the performing arts industry has not caught up with the law. I, too, know of many schools and non-profits that regularly make archival recordings and stream concerts. While some of these are licensed, many are not. There is a common misperception that, so long as something is used for educational purposes or no money is charged, then no licenses or permission is required. Nothing could be further from the truth. While many composers and publishers are happy to grant liberal permission, or even turn a blind eye to unauthorized used, others are not. It’s anyone’s guess as to which one you’re dealing with until it’s too late. The safest rule of thumb is: never assume you have permission to do anything you haven’t specifically asked for. Always ask permission. It protects artists, protects your institution, and perpetuates the value of the arts.
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Both Robyn Guilliams and Brian Taylor Goldstein will be attending the Association of Performing Arts Presenters Annual Conference in New York, providing both workshops and consultations. Please stop by the 4th Floor of the Hilton and say hello!
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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!
Can We Loan Sheet Music?
Wednesday, November 28th, 2012By Brian Taylor Goldstein, Esq.
Dear Law and Disorder:
May we loan music that we own for orchestral performances by other non-profit organizations (schools, community orchestras, etc? Would the other group still need to obtain performing/recording permissions? Could we be liable if they don’t?
It depends how define “own.” If by “own”, you mean that you purchased the sheet music, then, yes, you can loan it or give it to whomever you want. It’s like purchasing a book or CD: when you’re done reading it or listening to it, you can loan it to a friend, donate it to a library, or even re-sell it. You just can’t copy it, perform it, or record it—and neither can the organization you loan it to.
Ownership of a physical copy of books, sheet music, CDs, or other copyrightable material is not the same thing as owning the copyright. Owning a physical copy merely gives you the right to physically possess it—or give it away—not do anything else or convey any other rights. So, if you’ve purchased the sheet music and you loan or give it to another organization, regardless of whether or not the other organization is a non-profit or for-profit, they will still have to obtain the necessary rights if they want to perform or record it. Should they fail to do so, they will be liable for copyright infringement, not you.
If, on the other hand, you have merely “licensed” or “rented” the sheet music, then you cannot loan or give it to anyone else. That would be like sub-letting an apartment without permission. When you license or rent, its just for you.
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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!
Does Original Music Exist Anymore?
Wednesday, November 21st, 2012By Brian Taylor Goldstein, Esq.
Dear Law and Disorder:
I have a small venue. All 3 licensing companies are claiming I need to pay them for my karaoke and music that occurs weekly, but the bands that I have sign contracts making sure they only play their original music, nothing copyrighted. These companies have been strong-arming me with threats that there’s no such thing as original music anymore and that I must pay or I will be heavily fined. Is this true and, if so, is there blanket licensing that I may acquire for all 3?
Well, if there’s “no such thing as original music anymore”, that’s news to me and, I suspect, the thousands of composers out there!
If you require your bands to perform only original music that they composed themselves, then you do not need to obtain performance licenses from ASCAP, BMI or SESAC. The bands can give you all the permissions you need. However, if the bands breach their contract by “sneaking in” a few covers and performing music written by other bands or artists, then you would be liable for not having the proper performance licenses in place. (The band would be liable, too—for both breach of contract AND copyright infringement—but the performing rights organizations are more likely to go after you than the band.)
The karaoke is another matter. Karaoke machines, like jukeboxes, require licenses to be used in public venues such as yours. If you are featuring weekly karaoke nights, then you definitely must obtain karaoke licenses. The good news, such as it is, is that you can, indeed, obtain blanket karaoke licenses from each of the three performing rights organizations. The licenses will be based on the size and income of your venue.
Thanks for writing…and thanks to all of you who have written in, supported our blog, and asked great questions! Keem ‘em coming! Happy Thanksgiving!
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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!