Archive for the ‘Licensing’ Category

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A “Thank-You” Note Is Not The Same As A License

Thursday, November 21st, 2013

By Brian Taylor Goldstein, Esq.

Dear Law and Disorder:

I was wondering if I have my own blog and post a music video from iTunes in the blog, giving full credit to the musician, including the musician’s original link, would this be legal? And can you please specify on what full credit means.  Further, if I can’t do this, how do you go about getting permission from the musician??  Thank you!

A “copyright” is literally the right to make copies. A copyright “infringement” is when you make a copy of something without the owner’s permission.

Almost everything you can find on the internet (photos, images, videos, text, etc.) is someone else’s property. Part of the challenge of understanding digital rights is that the ease with which we can download and copy materials on the internet tends to make us forget that copying any materials without permission is still copyright infringement.

Without question, many people post pictures, videos, and other materials and are more than happy to have others repost and share them; but that decision is entirely up to the person who owns the materials. In other words, just because a car is parked on the street, doesn’t mean its free for the taking.

Purchasing and downloading a video from itunes only gives you the right to enjoy it. It doesn’t give you the right to re-post or copy the video. As such, posting someone else’s video on your blog would constitute copyright infringement unless you had permission from the owner of the video.

If you are commenting on or reviewing the video or the artist, then, arguably, you might be able to claim that posting the video constitutes “fair use.” However, the more of an item you post, the less “fair use” it becomes. So, an excerpt of a video is more likely to be “fair use” than posting the entire video. The better option would be for you to post a link to the video rather than post the video itself. In other words, you would be inviting your readers to go to itunes or the artist’s own website to view the video. This way, the owner can control whether or not they want the video to be shared.

I know many people who subscribe to the theory that, in practical terms, you should post anything you want until someone tells you to take it down. However, in practical terms, that’s also called “really bad advice.”

As for giving “full credit”, giving an owner credit in any form or manner neither gives you any rights to post materials nor absolves you of copyright infringement. Stealing a car, but leaving a thank you note crediting the owner, doesn’t make it any less a crime. If you want to get actual permission to repost a video, photograph, or any other copyrighted material, then you need to get permission (aka “a license”) from the owner—which may or may not be the artist. More often than not, video rights are controlled by record labels. Nonetheless, when seeking licenses, the best place to start is always the musician’s publisher, manager, or agent.

__________________________________________________________________

For additional information and resources on this and otherGG_logo_for-facebook 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!

 

 

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Posted in Arts Management, Copyrights, Law and Disorder: Performing Arts Division, Licensing | Comments Closed

How Does An Unauthorized Arrangement Become Grand Theft Auto?

Wednesday, August 21st, 2013

By Brian Taylor Goldstein, Esq. Dear Law and Disorder: Several years ago, our small ensemble hired a composer to arrange and re-orchestrate a work for us to play. The work itself, which is still under copyright, was originally written and arranged for a large orchestra. Recently, we made a video of our group performing the piece, put it on YouTube, and the composer’s publisher had it taken down. The publisher also told us that the composer had not authorized any arrangements or re-orchestrations. They also told us we couldn’t even perform it live anymore. Is this true? Even though we paid for the re-arrangement ourselves? Even though we have always obtained performance licenses through BMI? We have been performing this arrangement for years and the publisher has never objected before. It doesn’t seem fair. We have engagements in 2013/2014 to specifically perform this piece as part of our repertoire. When you obtain a performance license through ASCAP, BMI or SESAC, you obtain the right to perform a work as written. This includes the right to “interpret” the work to reflect your own style, artistry, expression, etc. However, it does not include the right to re-orchestrate or re-arrange a work in a manner that changes the fundamental nature of the work. For example, obtaining a performance license to perform a work written for a chamber ensemble does not give you the right to “re-arrange” it for four banjos and a zither—as tempting as that may be! The fact that you paid for the re-arrangement doesn’t give you any rights to perform it, if the re-arrangement itself was unauthorized. That’s like stealing a car, but arguing that it wasn’t a crime because you paid for the gas. (My partner, Robyn, says I never met an analogy I didn’t like…so let’s go with that.) However, on the plus side, such as it is, should the composer/publisher of the work ever decide they like your arrangement, they can’t use it without your permission either. The right to the re-arrangement belong to the owner of the re-arrangement—which could be your ensemble or the composer of the re-arrangement, depending on how your commission agreement was drafted. (Remember, the mere act of paying for something doesn’t inherently convey any rights.) The fact that you have been performing this arrangement to date without any trouble might buy you an argument—albeit a weak one—that your past performances were “implicitly” licensed. However, now that the publisher has officially told you that your arrangement is unauthorized, any future performances beyond this point would constitute copyright infringement. The line has been drawn. I know it doesn’t seem fair when a composer, author, publisher, or copyright owner refuses to give you the rights you need—especially in a situation such as yours where your arrangement obviously has artistic merit or else you wouldn’t be getting engagements to perform it. However, bear in mind that those same rules also protect your own rights. Imagine your position if someone had taken that video you posted on YouTube and, without your permission, altered it or used it in such a way that you found artistically objectionable. You would be just as adamant that they must stop. Also, bear in mind that its almost always easier (not to mention legally required) to get rights by asking and negotiating ahead of time, rather than taking what you want and then asking for forgiveness or permission after the fact. It’s the difference between borrowing and stealing a car. __________________________________________________________________ For additional information and resources on this and other legal and business issues for the performing arts, visit ggartslaw.com To ask your own question, write to lawanddisorder@musicalamerica.org. All questions on any topic related to legal and business issues will be welcome. However, please post only general questions or hypotheticals. GG Arts Law reserves the right to alter, edit or, amend questions to focus on specific issues or to avoid names, circumstances, or any information that could be used to identify or embarrass a specific individual or organization. All questions will be posted anonymously. __________________________________________________________________ THE OFFICIAL DISCLAIMER: THIS IS NOT LEGAL ADVICE! The purpose of this blog is to provide general advice and guidance, not legal advice. Please consult with an attorney familiar with your specific circumstances, facts, challenges, medications, psychiatric disorders, past-lives, karmic debt, and anything else that may impact your situation before drawing any conclusions, deciding upon a course of action, sending a nasty email, filing a lawsuit, or doing anything rash!

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Posted in Artist Management, Arts Management, Contracts, Copyrights, Law and Disorder: Performing Arts Division, Licensing, Music Rights, Publishing, Recordings | Comments Closed

Licensing May Not Be Music To Your Ears

Wednesday, August 7th, 2013

By Brian Taylor Goldstein, Esq. Dear Law and Disorder: Since ASCAP does not cover dance or theatrical performances, how does a dance group go about getting the appropriate permissions/ copyright releases needed for their performance? Another word for “permission” or “copyright release” is “license.” Dance performances, like theatrical performances such as opera or theater, as well as any other performance of music other than a concert, most often require two types of licenses for their performances: (1) a “Performance License” which is required for music to be performed (either live or via a recording) and (2) a “Dramatic License” for the music to be interpreted dramatically either through choreography or by performing the music as part of a play, musical, or opera. While ASCAP (as well as BMI and SESAC) does not issue dramatic licenses, they do issue performance licenses. Typically, most venues, theaters, presenters, etc. will obtain yearly blanket performance licenses from ASCAP, BMI and SESAC which allow the music in the ASCAP, BMI and SESAC catalogs to be performed in the venue. In such cases, that means you would only be required to get dramatic licenses for your group’s performances. However, not every venue obtains ASCAP, BMI and SESAC blanket performance licenses. Some erroneously believe that non-profits are somehow exempt from such licenses. Others believe it is the artist’s responsibility while others simply hope they won’t get caught. There are also instances where the music you want to dance to may not be represented by ASCAP, BMI or SESAC. Regardless of the reason, in instances where either the venue doesn’t have a performance license or the performance license doesn’t cover the music you need, you will be required to obtain both performance licenses as well as dramatic licenses. As for how your group actually obtains the necessary licenses, you would need to identify the composer or publisher of each musical work you want to use in your performance and contact the composer or publisher directly. Identifying composers and publishers isn’t actually that hard. ASCAP, BMI and SESAC maintain free, searchable databases, as does the Copyright Office website. You can also search the databases of other licensing organizations such as the Harry Fox Agency (which issues mechanical licenses.) You may have to be persistent and allow for lots of time. Not every composer or publisher will respond right away—or even respond at all. You may need to make repeated requests. If you don’t’ get a response, assume the answer is “no” and select different music. “Silence” is never golden which it comes to licensing. Also, just because you request a license doesn’t mean the composer or publisher will agree. And even if they agree, they can charge whatever they want. Composers and/publishers are free to be as arbitrary as they want when it comes to issuing licenses and setting fees. As I frequently remind everyone, there is no such thing as “industry standard.” If all of this seems daunting, keep in mind that, more often than not, you will be able to get the licenses you need provided you invest the necessary time and attention. Do not leave the licensing process to the last minute and do not assign this task to a volunteer intern helping out at your office. Also, bear in mind that the same rules that may seem to thwart your ability to use the music you want also protect you when it comes to controlling the ability of other dance groups to copy and perform works that you create and control. If all else fails, consider supporting a composer and commissioning your own music. _________________________________________________________________ For additional information and resources on this and other legal and business issues for the performing arts, visit ggartslaw.com To ask your own question, write to lawanddisorder@musicalamerica.org. All questions on any topic related to legal and business issues will be welcome. However, please post only general questions or hypotheticals. GG Arts Law reserves the right to alter, edit or, amend questions to focus on specific issues or to avoid names, circumstances, or any information that could be used to identify or embarrass a specific individual or organization. All questions will be posted anonymously. __________________________________________________________________ THE OFFICIAL DISCLAIMER: THIS IS NOT LEGAL ADVICE! The purpose of this blog is to provide general advice and guidance, not legal advice. Please consult with an attorney familiar with your specific circumstances, facts, challenges, medications, psychiatric disorders, past-lives, karmic debt, and anything else that may impact your situation before drawing any conclusions, deciding upon a course of action, sending a nasty email, filing a lawsuit, or doing anything rash!

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Posted in Arts Management, Copyrights, Law and Disorder: Performing Arts Division, Licensing, Non-Profits, Presenters | Comments Closed

Who’s Responsible For Performance Licenses?

Wednesday, June 26th, 2013

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!

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Posted in Agents, Artist Management, Arts Management, Contracts, Copyrights, Law and Disorder: Performing Arts Division, Liability, Licensing, Music Rights, Non-Profits, Presenters, Publishing, Venues | Comments Closed

“Fair Use” Just Isn’t Fair!

Wednesday, May 29th, 2013

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!

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Posted in Agents, Artist Management, Arts Management, Copyrights, Law and Disorder: Performing Arts Division, Liability, Licensing, Music Rights, Non-Profits, Presenters, Publishing, Recordings, Venues | Comments Closed

When To Negotiate A Contract

Tuesday, April 30th, 2013

By 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.

__________________________________________________________________

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!

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Posted in Agents, Artist Management, Arts Management, Contracts, Copyrights, For Profits, Independent Contractors, Law and Disorder: Performing Arts Division, Licensing, Music Rights, Non-Profits, Presenters, Publishing, Recordings, Touring, Venues | Comments Closed

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!

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Posted in Artist Management, Arts Management, Copyrights, Law and Disorder: Performing Arts Division, Licensing, Music Rights, Presenters, Publishing, Recordings, Venues | Comments Closed

The Mechanics of Mechanical Licenses

Wednesday, March 6th, 2013

By 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).

_________________________________________________________________

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!

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Posted in Artist Management, Arts Management, Copyrights, Law and Disorder: Performing Arts Division, Licensing, Music Rights, Publishing, Recordings | Comments Closed

Dad, May I Borrow the Car?

Wednesday, February 13th, 2013

By 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.

_________________________________________________________________

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!

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Posted in Arts Management, Copyrights, Law and Disorder: Performing Arts Division, Licensing, Music Rights, Publishing | Comments Closed

Commissioners Beware!

Wednesday, January 23rd, 2013

By 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!

________________________________________________________________

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!

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Posted in Artist Management, Arts Management, Contracts, Copyrights, Employees, Law and Disorder: Performing Arts Division, Licensing, Music Rights, Publishing | Comments Closed

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