Posts Tagged ‘ascap’

Does Original Music Exist Anymore?

Wednesday, November 21st, 2012

By 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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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 San Francisco Symphony Youth Orchestra takes the Philharmonie

Friday, July 6th, 2012

By Rebecca Schmid

A timpanist just tall enough to rumble his mallets over the kettle drums stares out from beneath his specs as Lars Vogt slides onto the bench for the opening chords of Grieg’s Piano Concerto.

“I like that sound!” says Music Director Donato Cabrera to the young percussionist as he walks out into the front aisles of the Philharmonie. “Could you do more of a crescendo?”

He immediately resumes.

“Yeah!”

The members of the San Francisco Symphony Youth Orchestra (SFSYO) stamp their feet in congratulation. As rehearsal continues, former Music Director Alasdair Neale, who has dropped into town for a visit, also weighs in from the aisles, coordinating seamlessly with Cabrera to refine balance issues. The orchestra plays through parts of Mahler’s First Symphony, the strings attempting a dreamy pianissimo that even the world’s best orchestras struggle to create.

Finally, it is time for rehearsal to come to an end. “Breathe, breathe, breathe,” Cabrera offers as a final suggestion. “And play your guts out!”

Donata Cabrera rehearses with the SFSYO at the Philharmonie (c) Oliver Theil/SFSYO-Few professional orchestras enjoy the same degree of artistic adventure as the SFSYO. The orchestra came to Berlin as part of a European tour (June 20-July 6)—its eighth since being founded in 1981—that traveled through three other German cities, Luxemburg, and ended in Salzburg. As the orchestra’s Director of Education Ronald Gallman pointed out, playing on the same stage as the Berlin Philharmonic is already an enormous accomplishment, not to mention a huge boost for the morale. The ensemble, drawing together Bay area musicians aged 12 to 21, exists on a tuition-free basis (thanks to generous sponsorship which also made this year’s tour possible) and receives weekly coaching with members of the San Francisco Symphony as well as yearly sessions with San Francisco Symphony Music Director Michael Tilson Thomas. Guest artists have included Yo-Yo Ma, Sir Simon Rattle, John Adams, and Midori.

Vogt, joining the SFSYO for the fifth time, told me backstage that “the sky is the limit” with this orchestra, adding how important it is for professional musicians not to be “set in their frames” and allow the youthful inquiries of musicians playing something like Mahler for the first time to bring a fresh take on issues that more seasoned players take for granted. Cabrera emphasized that the act of discovery is no different with a youth orchestra than any other professional ensemble. “This is what we live for,” he said. “There is always more to peel away and discover.”

Speaking with three of the orchestra’s members, it was clear that they shared these values of music-making as a constant learning process. Principal violist Omar Shelly explained that while they had already rehearsed the programmed works extensively at home, the tour was a “huge opportunity to adjust a prime product to different places, like a catering to a menu.” Principal oboist Liam Boisset, who like Shelly plans to become a professional musician, raved about how the acoustics of the Philharmonie allowed all the orchestra’s members to hear one other. “I’ve learned so much more about Mahler on this tour,” he said. “It makes me much more aware about where I sit in the orchestra.”

At the concert later that evening, the Grieg opened with a precisely built crescendo on the timpani that carried well to the back of the Philharmonie. The close attention in rehearsal to balance made itself clear in the elegant flute and horn solos of the first movement, while Vogt brought a light yet intense touch to the runs underlying the orchestra. Vogt’s emotional togetherness with the ensemble was particularly apparent in the Adagio movement, and the sighing melodies received a lovely rubato in the strings. The final Allegro, featuring Vogt in a spirited evocation of a Norwegian folk dance, was thoroughly polished and on point. Every dynamic shading emerged well-conceived and firmly in its place, yet there was also a mystical quality to the quieter passages, such as when the flute and dusky strings usher in a nocturnal passage on the piano.

In Mahler’s First Symphony, Cabrera and the SFSYO admirably captured the leisurely pace the composer indicated in his tempo indication Langsam, schleppend—as opposed to the third movement (Feierlich und gemessen, ohne zu schleppen). The playful “kuckuck” wind motifs were particularly endearing coming from a youth orchestra, contrasting at first ironically with the glassy opening strings and the primordial inquiries underlying the music. The orchestra nailed the Scherzo, with its jaunty waltz riff (in fact an Austrian Ländler), executing phrases of mature heft and temperament. Even after the deluge of Mahler last season for the centenary of his death, it is impossible to resist being captivated by the Frère Jacques canon of the third movement, with its slow, resigned march toward death, interrupted by Jewish folk melodies that mourn as they rejoice. After making its way with rapt attention through this spiritual ambiguity, the orchestra let loose in the turbulent final movement, lending charged passages force without becoming muscular. Mahler not being a composer of the greatest psychological simplicity, the Sitzfleisch and intellectual stamina of these young musicians deserve much praise.

Yet it was John Adams’ Shaker Loops that showed the orchestra at its best. The composer’s extensive collaboration with the musicians’ home organization of course strengthens their claim to this music, Adams having inspired the Meet the Composer residency program and established his national reputation with works written for the San Francisco Symphony. Shaker Loops is one of his first major compositions, adapted from a septet to full string orchestra in 1982 and featuring pulsating minimalist textures that, unlike in Reich or Glass, are set to Western harmonies and traditional form. The high energy of the repeated tremoli in the opening Shaking and Trembling immediately brought some west coast wind into the Philharmonie, and the eerie microtonal slides in the following Hymning Slews revealed impressive technical precision. A Final Shaking provided a satisfying close with anxious high-pitched shimmering that yields to ecstatic tonal harmonies. It is not for nothing that the SFSYO won an ASCAP Award for Adventurous Programming and the Award for American Programming on Foreign Tours this year.

Cabrera with the SFSYO (c) Jeff Bartee Photography/SFS

Is That A Music License I Hear?

Wednesday, June 27th, 2012

By Brian Taylor Goldstein

Do we legally have to have a music license if we have bands performing in our Country Club at weddings, social events, etc.?

Yes. Anytime music is publically performed, either live or by playing a recording through a sound system, a “performance license” is required. A “performance license” is a fee paid to the composer for the right to perform his or her composition publically (as opposed to performing music in your living room for friends and family.) Whenever you hear music being played in a department store, or in a restaurant, or in an elevator—even though its being played in the background and even though there are no fees or tickets to listen to the music—someone, somewhere has paid a performance license so you can enjoy an enhanced shopping, dining, or elevator-riding experience. Similarly, whenever music is performed live at a concert hall, nightclub, restaurant, or even, yes, at a private wedding held at a country club, someone, somewhere must obtain a performance license.

As the owner/operator of a performance space/venue, it is your legal responsibility to ensure that the necessary rights and authorizations have been obtained with respect to all copyrighted music that is publicly performed in your venue—even if the “performance” is for a private party. Just because the party is “private” or “by invitation only”, a country club itself is a public venue and the wedding guests are “public.” So, if your space is used for a wedding, and the happy couple hires a wedding band, it is your responsibility to ensure that there are appropriate licenses for the music being performed by the band.

While you could require the band or the event organizer to obtain the necessary licenses, that will not relieve you from responsibility (ie: liability) should they fail to do so. Most venues where live music is performed are better advised to obtain blanket performance licenses from the three performance rights licensing organizations: ASCAP, BMI and SESAC. Each of these organizations controls the rights to 1000s of compositions and a “blanket license” permits all the music from their catalogs to be performed at your venue. Its like one stop license shopping. While this will require you incur the license costs yourself, you can pass the costs along through your rental fees. Its also the best and only way to ensure that your legal responsibility as the owner/manager of the venue is being met. In other words, you need to obtain music licenses for the same reason you carry insurance: to protect the venue from liability.

If nothing else, think of it this way: for many artists/composers with lousy record deals, their performance licenses may be the only fees they receive for their work. If dancing and listening to their music makes the wedding guests happy, and happy wedding guests means happy Country Club members/renters, then all that happiness is at least worth a fee to the composer.

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“Law & Disorder:Performing Arts Unit” will take a short break on Wednesday, July 4. Our next post will be on Wednesday, July 11.

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For additional information and resources on this and other legal and business issues for the performing arts, visit ftmartslaw-pc.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. FTM 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!

Do We Need ASCAP/BMI Licenses?

Wednesday, April 18th, 2012

By Brian Taylor Goldstein

Hello Law and Disorder,

We have met numerous times at conferences, (I love going to your sessions!) and you have been very helpful with questions about our presenting contracts. We also rent our facility and I now have a question about that side.  We recently received a letter from BMI stating that a few of our rental clients have not paid their licensing fees and that we are now responsible for the fees. Can they do that?  We have it stated in our rental contract that the user is responsible of ASCAP/BMI fees, is that enough to get us out of it? If BMI can hold us accountable for the artist fees how do we protect our self in the future? I appreciate your advice, thank you.

Thanks for coming to our sessions! As for your question: Yes, they can do that! As the owner/operator of a performance space/venue, it is your legal responsibility to ensure that necessary rights and authorizations have been obtained with respect to all copyrighted music which is publicly performed in your venue. (Actually, your legal responsibility is not limited to performance rights, but extends to dramatic rights as well as any other required rights and licenses which pertain to music, images, trademarks, recordings, images, or other protected rights or materials being used or performed in your space.) In other words, while there is certainly nothing wrong with requiring your “users” to be responsible for ASCAP/BMI fees, that will not relieve you from ultimate responsibility if they fail to do so. In fact, there is no contract, release, or any other document which will protect your venue from liability should one of your users fail to obtain the necessary authorization or licenses they need for their performance. However, there are several things you can do to better manage your liability and minimize your risk:

First, you’ll not only want to ensure that your contract states that the user is responsible for all licenses and authorizations, but you’ll also want your contract to state that the user will “hold harmless and indemnify” your venue if they fail to obtain the necessary licenses and authorizations. In essence, this means that the user will have to reimburse you for any costs and expenses you incur if you are required to pay for licenses, incur legal expenses, or suffer any other damages or losses because your users failed to obtain the rights and licenses they were supposed to. (They’d probably have to do that anyway, but an indemnification and hold harmless provisions makes that obligation explicit.)

Second, there are many venues which require users to produce “proof” that they have all of the required licenses prior to the first performance date as a condition of being allowed to use the space. This gives you a chance to assess whether or not the appropriate licenses have actually been obtained.

Third, you should obtain your obtain your own blanket licenses directly from ASCAP and BMI, as well as from SESAC. These three organizations issues blanket licenses directly to venues such as yours to ensure that any music from their catalogs is properly licensed for public performances. While this will require you to keep a running account of all music publicly performed at your venue as well as to incur the license costs yourself, you can pass the costs along to your users through your rental fees. Its also the best and only way to ensure that your legal responsibility as the owner/manager of the venue is being met, at least with regard to performances licenses. You’ll still need to make sure your users obtain the other right and licenses they may require for their performances.

Lastly, I would consult with other venues of similar size and nature to your own and see if they already have licensing policies and procedures that you might be able to adopt for your own use. There’s no need to reinvent the wheel where others have already rolled it up the hill—just beware of any venue that tells you either: “We just ignore all of that stuff and haven’t been caught yet!” or “Those rules don’t apply to non-profits.” Run away!

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For additional information and resources on this and other legal and business issues for the performing arts, visit ftmartslaw-pc.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. FTM 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!