By Brian Taylor Goldstein, Esq. Dear Law and Disorder: I have read your clearly stated articles about mechanical use and rights. What about “fair use”? Aren’t there specific scenarios where permission is not needed to use a recording of someone else’s music? Beware of what you ask. You are about to open a box whereupon a thousand nasties will fly out! Now that you have been duly warned…. Copyright Law gives the owner of a copyright the exclusive right to perform, edit, arrange, or reproduce a protected work in copies or recordings, as well as the exclusive right to authorize others to do so. Anyone who copies, performs, or records a protected work without the copyright owner’s permission, even including small excerpts, is guilty of copyright infringement. Fair Use is a legal doctrine whereby certain usages of a particular work “may” be considered permissible without the copyright owner’s permission, if the purpose for which the work was used is determined to be “fair”, such as criticism, comment, news reporting, teaching, scholarship, research, and parody. As the U.S. Copyright Act is intended, albeit arguably, to afford the maximum protection of copyright owners and the creators of protected works, it does not set forth specific usages that are inherently “fair.” Rather, the analysis and determination of what constitutes Fair Use is left entirely to a judge to decide in her or her sole discretion. In other words, should you decide to use any portion of a protected work without the owner’s permission, you won’t know whether your use is a permissible Fair Use or a prohibited infringement until after the copyright owner files a lawsuit claiming an infringement and everyone goes to court, makes arguments, and the judge decides. The only guidance given by the U.S. Copyright Act is the following four-part test which judges use in making the Fair Use analysis and determining whether or not a particular use is “fair”: (1) the purpose and character of the use, including whether such use is of commercial nature or is for non-profit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work. As you may imagine, the application of these factors is both highly fact specific and highly subjective. Any one factor can tip the balance for or against Fair Use. More significantly, just because one judge determines a specific usage to be Fair Use within a specific scenario does not mean that a different judge will determine that a similar usage will be Fair Use in a similar scenario. Determinations can, and do, change from judge to judge. Case law is filled with conflicting examples of recordings where one judge ruled that a specific usage of a melody was a parody (Fair Use) and another judge in another state said a similar use of a different melody was satire (not Fair Use). Similarly, judges have ruled the use of as little as thirty seconds to be an infringement and usage of entire works to be Fair Use. Essentially, this means that Fair Use is an exception, or defense, to a claim of infringement, not a right in and of itself. To be fair, there are many legal scholars who would argue, correctly, that Fair Use is not a mere defense, but is, in fact, an important right that balances copyright law with the First Amendment and that the current system gives far too much power to wealthy copyright owners who can use the mere threat of lawsuits to quash any usage of their works, even usage that might legitimately constitute Fair Use. I don’t necessarily disagree with this position. However, it’s more aspirational than reflective of the current realities that you and I have to deal with. Until Congress comes up with better guidelines (and the likelihood that Congress can “come up” with much of anything these days is slim), we are stuck with the current system and all its inherent flaws and inconsistencies. Despite the distinctions between Fair Use and infringement being uncertain and difficult to define, there are, nonetheless, a few certainties which you can depend upon: There is no specific number of words, lines, or notes that may safely be taken without permission. Acknowledgement of the source of the copyrighted material does not constitute Fair Use and is not a substitute for obtaining permission where permission is required. Just because something is used by a non-profit and/or used for “education” does not mean its “fair.” Materials you find on the Internet is neither inherently public domain nor Fair Use. Just because you do not sell anything, does not make your use of someone else’s work Fair Use. At the very least, when determining whether or not using someone else’s work without permission might be Fair Use, take only the smallest amount of a copyrighted work necessary to accomplish your goal of criticism, comment, news reporting, teaching, scholarship, research, and/or parody. As a general rule, the more you take, the less likely your use will be considered “fair.” It is also reasonable to assume that if you are using any part of a copyrighted work for promoting or marketing your services or performances, or your organization’s services or performances, even if no copies are being sold, it probably IS NOT fair use. Of course, the safest course is always to get permission from the copyright owner before using copyrighted material. __________________________________________________________________ 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!
Posts Tagged ‘permission’
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.
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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!
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!
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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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 They Dance Away With My Copyright?
Tuesday, October 23rd, 2012By Brian Taylor Goldstein, Esq.
I own the video footage of a performance by a dance company. Recently, I learned that another choreographer purchased a license from the dance company to recreate and perform the same work. However, they used a copy of my video to help in recreating the choreography. In other words, they copied the performance which was on my video, but no one asked my permission. Aren’t I entitled to a royalty or a fee? How are the choreography and the video separable? The only way they could get the choreography was through my video.”
Copyright protects original, creative works that are fixed in some tangible medium. For example, when a playwright creates a script, he or she obtains a copyright in the play. If someone else later videotapes a performance of the play, the videographer may obtain a copyright in the video and, with it, the right to control who can make copies of the video or broadcast the video or sell the video. However, the playwright still owns all rights to the play itself. If another theater wants to produce the play, they only need to seek permission of the playwright–even if they use the video as a reference, so long as they don’t make a “physical” copy of the video itself. It’s the same with choreography. Choreographic works become protected by copyright when either the chorography is written down in choreographic notes or videotaped. However, the videotape or the choreography is a separate copyright from the choreography itself.
In your case, the fact that the other company may have used your video to “learn” and remount the choreography doesn’t mean they necessarily copied your video. You own the video footage. That’s your copyright and no one can make a physical copy of the video without your permission. However, the original dance company and/or the choreographer who created the work own the performance rights.
Of course, what I have given you is a copyright analysis. The real question I have is: what were the terms of your agreement with the dance company when you made the video? Did you even have a contract? Issues such as performance rights, licensing, and permissions—as well as many others, including credit, ownership, control, and exclusivity—are all issues that can be agreed upon in a contract. Not have a contract, and relying solely on copyright laws and statutes, is like dying without a will. If you wanted to receive a royalty every time the work was performed, you could have asked for that, just as the dance company could have asked for a royalty every time you sold or licensed a copy of the video. When it comes to avoiding miscommunications and disappointments, nothing beats a piece of paper…correction, nothing beats a piece of paper with lots of details!
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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!
Listen To Your Mother and Get It In Writing!
Wednesday, September 5th, 2012By Brian Taylor Goldstein
Can you answer this question for us? My soon to be son-in-law is a musician. He has written and recorded many songs, and is producing his first CD. One of the songs on the CD, he had a female friend sing with him. If he plans to put this song on his CD, doesn’t he need some sort of written permission or release from her?
Congratulations! It sounds like you’re not only gaining a son-in-law, but your son-in-law is gaining a manager. You are absolutely correct. Even though your son-in-law may have may have written the song and paid for the recording, his friend owns the rights to her performance. There needs to be something in writing confirming that your son-in-law has her permission to record her performance for the CD and distribute copies. As most everyone in the arts world would rather suffer a paper cut than deal with paperwork, its very common for musicians and others to take the position that, if a person is aware that they are being recorded, then permission is “assumed” or “implied” and no formal contract or agreement is needed. While this is technically true, an implied license can also be revoked at any time. This means that she could wait until the CD was a big commercial success, revoke her license, and use the threat of a copyright infringement lawsuit to negotiate for a large royalty or payment.
While written permission or a release is better than nothing, if he really wants to make sure there are no future problems, the written permission (also called a “license”) needs to specify that it is “irrevocable, perpetual, and worldwide.” Even better, skip the license and have her confirm that she is assigning (ie: granting) all rights and ownership in the recording of her performance to him. Either way, in order for the “writing” to be enforceable as contract, it also needs to confirm what she is getting in exchange for the license or assignment. A flat fee? Royalties from sales of the CD? Even if she agreed to do the recording out of friendship in exchange for nothing, the writing should confirm that she will be given credit and acknowledgement “in exchange” for the assignment or license. While this may seem like an unnecessary formality for a first CD, it’s far wiser to plan for success rather than have it derailed by someone else’s plan.
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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 Newspapers Charge To Quote Reviews??
Wednesday, August 8th, 2012By Brian Taylor Goldstein
Dear Law & Disorder:
I recently came across the website of an artist management agency in Europe where they had posted the following: “The press review is temporarily not available. German newspapers Frankfurter Allgemeine Zeitung and Süddeutsche Zeitung recently started to pursue institutions and artists using texts (press reviews, interviews, commentaries etc.) published by those newspapers on their websites or in any other commercial context without having paid for them. We have been advised to remove all press quotations from our website as the same phenomenon seems to happen in other countries like Switzerland and Austria.” Is this a copyright trend that will spread to other European countries and the USA? Will agents, and artists have to start paying for the use of (press reviews, interviews, commentaries) used to promote an artists career? Also, if an American agency has press reviews, interviews, commentaries from Europeans newspapers on their websites, such as from the Frankfurter Allgemeine Zeitung and Süddeutsche Zeitung, will these agencies be liable for payment of the use for this information, as well, as it is being used in a commercial context? (Thank you for your column on Musical America, and I also thank Ms. Challener for her leadership in including such information in the weekly email Musical America updates.)
Newspapers and magazines have always owned the exclusive rights to the articles, reviews, editorials, and interviews they publish. Just like you can’t make copies of sheet music, CDs, books, and other copyrighted materials, you cannot make copies of articles and reviews and re-post them without the owner’s permission. Even if you are not “re-selling” an article or review, anything that is used to promote, advertise, or sell a product or service (ie: an artist!) is a “commercial” use.” While “quoting” or “excerpting” a positive review is most often considered a limited “fair use”, making copies of the entire article or review is not. While it should go without saying, you also cannot “edit” or revise articles and reviews in an effort to make a bad review sound more positive. (That’s not only copyright infringement, but violates a number of other laws as well!)
The website you encountered was in response to certain German newspapers, in particular, who began making significant efforts to require anyone who wanted to copy or quote their articles or reviews to pay a licensing fee. In the United States, for the most part, most newspapers and magazines have not actively pursued agents or managers who have quoted articles and reviews on their websites to promote their artists. However, I am aware of managers and agents who have been contacted by certain publications where entire articles have been copied and made available for download. In such cases, the publication has demanded that the copy either be licensed or removed. I also know of agents and managers who have posted unlicensed images on their websites and then been contacted by the photographers demanding licensing fees.
As for the ability of an American agent to quote or copy articles from the Frankfurter Allgemeine Zeitung and Süddeutsche Zeitung, under the applicable international copyright treaties, they could require American agents to pay as well. While I don’t necessarily see this becoming a trend among US publications, its certainly worthwhile to reflect that anytime an agent, manager, or presenter uses images, articles, videos, other materials to promote an artist or performance, there are copyright and licensing considerations that need to be taken into consideration.
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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.
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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!
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