Archive for April, 2013

Using Existing Recordings–Not So Fast!

Wednesday, April 10th, 2013

By 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.

__________________________________________________________________

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!

Dudamel’s Development

Thursday, April 4th, 2013

by Sedgwick Clark

Gustavo Dudamel and the Los Angeles Philharmonic – America’s hottest orchestra/conductor team – breezed through New York last week for a pair of sold-out concerts they had just performed in LA, London, Lucerne, and Paris. Dudamel is a bona fide star. Now 32, he draws a younger-than-usual audience, and cheers erupted when he walked to the podium. But nothing in his demeanor indicates that this acclaim has gone to his head; he even appears bashful about it. True to his El Sistema upbringing, his commitment to music education is unwavering, and nothing in the American publicity mill will deter it. His conducting style is understated, with minimal gestures, and when the performance ends he walks through the orchestra to single out important soloists and entire choirs. He’s one of the gang, and he respects each and every one of them. He’s got the goods, and what’s happening on that other coast should be followed with great interest by the faltering music business.

He loves contemporary and 20th-century music, and all the works he conducted in New York fit that bill. Indeed, the first of the Lincoln Center concerts (3/27) was the local premiere of a single, extraordinarily ambitious work: John Adams’s oratorio The Gospel According to the Other Mary (2011-12). Many consider Adams a great composer, an opinion I wish I could share. His new work, lasting over two and a half hours, stretched the limits of boredom as few performances I can recall – not since Carlo Maria Giulini led this same orchestra in a full-hour, headache-inducing distention of Beethoven’s Eroica at Carnegie Hall 34 years ago.

For fuller, more gentlemanly analyses of the Other Mary, read George Loomis’s report (3/29) on the Musical America Web site and Anthony Tommasini’s in the Times (3/30). But even they were quite mixed over the sprawling structure of librettist and director Peter Sellars’s amalgam of poetry. Sellars is a brilliant thinker and talker, as he demonstrated once again in a pre-concert discussion, but noble ideas do not a viable libretto make, as this team so excruciatingly demonstrated with the opera Doctor Atomic. However, my concern here is about the musical element of the piece, not the political or religious matters – or Sellars’s distracting staging – that upset some of the reviewers I googled. I simply was not emotionally engaged by the way Adams arranged the notes.

The score is structured in two parts. The first part is the longest, and except for a couple of brief Orffisms I waited in vain for memorable melodic inspiration. The second half seemed to acquire a more angular rhythmic profile, perhaps because the deadline was encroaching and the motoric wisps of Stravinsky, Orff, and even Janáček that dot Adams’s earlier works asserted themselves more readily. (Tommasini heard “recognizeable inspirations, like big-band jazz, Bach, Copland, Ives, Ravel and more . . . .”) Whatever the case, Dudamel and the Angelinos acquitted themselves brilliantly as far as I could tell, and Deutsche Grammophon recorded the work in March.

Dudamel’s second concert (3/28) began with an ugly piece called Zipangu (1980), by Canadian composer Claude Vivier. According to the program book, Vivier’s “own style synthesized many characteristics of Debussy’s and Stravinsky’s music.” Nonsense.

The real music ensued with a rather soggy rendition of Debussy’s La Mer and a detailed and expressive (or, if one didn’t like it, slow and meandering) performance of Stravinsky’s complete Firebird (1910). While I prefer the greater intensity and drama of the composer’s recorded performance, which is tighter by five minutes, there were plenty of gorgeous moments to savor throughout the score in Dudamel’s conception, from the lovely “Round dance of the princesses” to the exciting “Infernal dance of Kastchei’s subjects,” which provoked applause at its wild conclusion.

An interesting detail: Stravinsky added two snarling trombone glissandi near the end of the Infernal dance in his 1919 Suite, which is the way the Firebird music is most often performed, and he retained it in his longer 1945 Suite. Neither the complete 1910 ballet music nor the 1910 Suite versions include the glissandi, but Dudamel added them (as well as, he told me later, other scoring details from the 1919 version that I didn’t notice), and they fit just fine. Why didn’t anyone else – including the composer himself ex post facto – think of this?

Looking Forward

My week’s scheduled concerts (8:00 p.m. unless otherwise noted):

4/4 Carnegie Hall. Boston Symphony/Daniele Gatti; Anne Sofie von Otter, mezzo; Tanglewood Festival Chorus. Mahler: Symphony No. 3.

4/5 at 7:00. Metropolitan Museum. New York Philharmonic Contact Concert/Alan Gilbert; Liang Wang, oboe. Unsuk Chin: Gougalon. Poul Ruders: Oboe Concerto. Anders Hillborg: Vaporized Tivoli. Yann Robin: Backdraft.

4/8 at 7:30. Symphony Space. Cutting Edge Concerts New Music Festival. Loadbang; Kathy Supove, piano; Oleg Dubson, actor. Alexandre Lundsqui: Gutteral I and II. Douglas Gibson: Fanfare for the Common Audience. Reiko Füting: Land of Silence. Andy Ahiko: LOVE LOST LUST LONE. Victoria Bond: The Page Turner. Hanna Lash: Stoned Prince.

4/11 at 7:30. Avery Fisher Hall. New York Philharmonic/David Robertson; Pierre-Laurent Aimard, piano. Messiaen: Les Offrandes oubliées. Mozart: Concerto No. 23. Tristan Murail: Le Désenchantement du monde. Beethoven: Symphony No. 2.

Requiem aeternam

Thursday, April 4th, 2013

By Rebecca Schmid
The Festtage of the Staatsoper Berlin, founded by Daniel Barenboim in 1996, is not officially an Easter Festival. But while the Berlin Philharmonic left the Philharmonie for some mountain air (taking up residence for the first time this year in Baden-Baden), the maestro— between conducting the first full cycle of the Cassiers/Bagnoli Ring production, which has unfolded between the German capital and Milan since 2010—presided over ensembles of both the Staatsoper and La Scala in two different Requiem masses.

The pianist and conductor, currently music director of both opera houses, opened Mozart’s Requiem on April 1 with W.A.’s last piano concerto, KV 595. The Staatskapelle’s rich warm, strings lent the music great strength—particularly in forte passages—while gentler nuances could have been more florid and secretive. Still, the balance with the piano was ideal in the opening Allegro. Barenboim brings a wonderful spontaneity to his performances—even if there were a couple of smudges on the keyboard—and he masters the Staatskapelle’s full-bodied sound with a firm but giving hand. The final Allegro movement, which opens deceptively with a variation of the chirping song Komm, lieber Mai, attained a mysterious quality that provided a captivating bridge to the Requiem, where Mozart could no longer take refuge in the childlike playfulness that masks a complex spectrum of emotions in other late works.

The mass, which lay unfinished on the composer’s deathbed, conveys a God-fearing sense of his own mortality. It is not until the bright E-flat major triad of the Sanctus movement, completed largely by Mozart’s contemporary Frank Xaver Süßmayer, that the light of day shines. There is nothing operatic about the work—one of several masses Mozart wrote between 1768 and 1791. As penetrating as the voices of the Staatsoper chorus were, one almost wished for a more penitent approach. Of the soloists, it was René Pape and Bernarda Fink—respectively the lower male and female voices—who captured the music’s demands for internal spirituality.

Rollando Villazòn seemed to vie for attention with his hystrionic facial expressions, so it was all the more excruciating when he switched suddenly from head to chest voice mid-entrance in Tuba Mirum. He managed to push above the ensemble later but it seems unlikely his timbre will ever recover the luster it bore pre-vocal crisis. Soprano Maria Bengtsson lent every line a pretty, creamy sound, but her inflections were often mannered. The Staatskapelle performed with increasing intensity, investing Domine Jesu Christe with an incision that drove to the heart of the music. Barenboim brought the final Lux Aeterna to a spaciously paced close.

Verdi’s Requiem, performed March 30 with the orchestra and chorus of La Scala, is unarguably the more theatrical of the two masses, emerging in the 1870s when the composer wrote no new operas. Verdi, moved to complete the work upon the death of his literary hero Alessandro Manzoni in 1873, nevertheless commented modestly that with so many Requiem Masses “there’s no point to writing one more.” He was wrong. His Dies Irae is one of the most petrifying moments in musical history, the chorus descending into a fiery pit of swirling strings and brass so demonic that even Wagner looks tame. The effect was nearly ear-numbing from my seat on the balcony above the stage, but I couldn’t miss the chorus’ homogeneity of tone and commitment to every syllable.

Daniela Barcellona gave a lesson in rich shading, carrying effortlessly across the hall in her solo of the second Dies movement. Soprano Maria Segreta, stepping in last minute for Anja Harteros, has a sweet timbre that sometimes struggled to hold its own alongside the voluminous mezzo, although it’s impossible for me to judge properly given the acoustics from my seat. They struck a placid balance in Agnus Dei. Pape was his usual serene self, and tenorissimo Fabio Sartori rounded out the ensemble with a penetrating but unpretentious tone. The musicians of La Scala made clear how deeply this music flows in their veins, phrasing with an unforced fluidity worthy of the highest Kunstreligion.

rebeccaschmid.info

Independent Contractors or Employees: What’s In A Name?

Wednesday, April 3rd, 2013

By Brian Taylor Goldstein, Esq.

Dear Law and Disorder:

I hire musicians to perform, with me. Are they employees or independent contractors? I do not deduct taxes from what I pay them. Should I also make them sign a contract stating that they are independent contractors?

Contrary to what many believe, the distinction between who is an independent contractor as opposed to an employee is not as simple as merely making them responsible for their own taxes (and issuing them a 1099) or making them sign a contract or other document in which they affirm that they are an independent contractor. Like many legal relationships in the arts, “titles”, while not entirely irrelevant, do not in and of themselves carry any legal significance. Instead, determining whether a hired musician (or anyone you hire to provide services for you) is an employee or an independent contract requires an analysis of both state and federal regulations.

A person is an independent contractor only when free from control and direction in the performance of their services. As independent contractors are not covered by unemployment insurance laws, labor standards, or safety and health regulations, each state, as well as the federal government, have established various “factors” concerning the nature of the relationship between the parties which are used to determine whether or not a person is an employee or an independent contractor. These factors include how a person is paid, the amount of control you have over them, where their services are performed, how their services are performed, whether or not they are part-time or full-time, and even whether or not the person you are hiring is “incorporated” as a business or merely uses a “dba” and is a sole proprietor. All factors concerning the relationship between the two parties must be taken into consideration. No one single factor is controlling, nor do all factors need to be present to establish the nature of the relationship.

Not surprisingly, the “factors” can differ from state-to-state, with some states applying a more liberal analysis than others. Whereas, in some states, its almost impossible for anyone to hire an individual as an independent contractor unless the individual is incorporated as a C-corporation, S-corporation, or a limited liability company, other states afford more discretion to the employer to determine how to classify the people they hire. And the federal government has its own set of factors and guidelines. As a result, its not uncommon for the same person to be classified as an independent contractor for federal purposes (IRS, US Department of Labor, etc.) and an employee for purposes of state unemployment law and state taxes.

While all the various factors must be considered, in almost all cases the most significant factor is whether the party contracting for the services exercises, or has the right to exercise, supervision, direction or control over someone they hire. In the case of musicians and other performers: do you hire them to show up and perform their own music in whatever manner they want? Or do you direct them? Do you require them to attend rehearsals? Can they wear whatever they want or do you require specific costumes or clothing? In general, musicians or other performers who are paid to perform and are told/directed what to perform, how to perform it, where to perform, and what to wear are almost always considered “employees”, if not by the federal government, then by most state governments.

The only way to answer your specific question is to apply the applicable state and federal factors and guidelines to your specific circumstances. However, the New York State Department of Labor actually has specific guidelines and factors for determining whether performers are employees or independent contractors. You can find them at http://www.labor.ny.gov/formsdocs/ui/ia318.17.pdf Whether or not you are in New York, this is a good place to start.

_________________________________________________________________

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!