Archive for the ‘Licensing’ Category
Wednesday, January 9th, 2013
By 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.
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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!
Tags:ascap, bmi, Brian Taylor, composer, copyright, Education, Goldstein, license, Licensing, live performance, live performances, music, Non-Profits, performer, permission, recitals
Posted in Arts Management, Copyrights, Law and Disorder: Performing Arts Division, Licensing, Music Rights, Non-Profits, Presenters, Publishing, Recordings | Comments Closed
Wednesday, November 28th, 2012
By 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!
Tags:Brian Taylor, community orchestras, copyright, copyright infringement, copyrightable material, Goldstein, Liable, license, orchestra, orchestral performances, orchestras, ownership, permission, recording, sheet music
Posted in Arts Management, Contracts, Copyrights, Law and Disorder: Performing Arts Division, Liability, Licensing, Music Rights, Non-Profits, Recordings | Comments Closed
Wednesday, November 21st, 2012
By Brian Taylor Goldstein, Esq.
Dear Law and Disorder:
I have a small venue. All 3 licensing companies are claiming I need to pay them for my karaoke and music that occurs weekly, but the bands that I have sign contracts making sure they only play their original music, nothing copyrighted. These companies have been strong-arming me with threats that there’s no such thing as original music anymore and that I must pay or I will be heavily fined. Is this true and, if so, is there blanket licensing that I may acquire for all 3?
Well, if there’s “no such thing as original music anymore”, that’s news to me and, I suspect, the thousands of composers out there!
If you require your bands to perform only original music that they composed themselves, then you do not need to obtain performance licenses from ASCAP, BMI or SESAC. The bands can give you all the permissions you need. However, if the bands breach their contract by “sneaking in” a few covers and performing music written by other bands or artists, then you would be liable for not having the proper performance licenses in place. (The band would be liable, too—for both breach of contract AND copyright infringement—but the performing rights organizations are more likely to go after you than the band.)
The karaoke is another matter. Karaoke machines, like jukeboxes, require licenses to be used in public venues such as yours. If you are featuring weekly karaoke nights, then you definitely must obtain karaoke licenses. The good news, such as it is, is that you can, indeed, obtain blanket karaoke licenses from each of the three performing rights organizations. The licenses will be based on the size and income of your venue.
Thanks for writing…and thanks to all of you who have written in, supported our blog, and asked great questions! Keem ‘em coming! Happy Thanksgiving!
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For additional information and resources on this and other legal and business issues for the performing arts, visit ggartslaw.com
To ask your own question, write to lawanddisorder@musicalamerica.org.
All questions on any topic related to legal and business issues will be welcome. However, please post only general questions or hypotheticals. GG Arts Law reserves the right to alter, edit or, amend questions to focus on specific issues or to avoid names, circumstances, or any information that could be used to identify or embarrass a specific individual or organization. All questions will be posted anonymously.
__________________________________________________________________
THE OFFICIAL DISCLAIMER:
THIS IS NOT LEGAL ADVICE!
The purpose of this blog is to provide general advice and guidance, not legal advice. Please consult with an attorney familiar with your specific circumstances, facts, challenges, medications, psychiatric disorders, past-lives, karmic debt, and anything else that may impact your situation before drawing any conclusions, deciding upon a course of action, sending a nasty email, filing a lawsuit, or doing anything rash!
Tags:ascap, bmi, breach, Brian Taylor, composers, copyright, copyright infringement, Goldstein, karaoke nights, license, Licensing, music, original music, performance license, performing music, permission, public venue
Posted in Arts Management, Copyrights, Law and Disorder: Performing Arts Division, Liability, Licensing, Music Rights, Venues | Comments Closed
Tuesday, October 23rd, 2012
By 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!
Tags:Brian Taylor, choreographer, choreography, contract, copyright, creative works, dance, dance company, Goldstein, license, Licensing, ownership, performance rights, permission, playwright, royalty, video footage, videographer, videotape, videotapes, work
Posted in Arts Management, Contracts, Copyrights, Law and Disorder: Performing Arts Division, Licensing, Recordings | Comments Closed
Tuesday, September 11th, 2012
By Brian Taylor Goldstein
THIS WEEK’S BLOG IS BEING WRITTEN FROM THE MIDWEST ARTS CONFERENCE IN GRAND RAPIDS, MICHIGAN WHERE ROBYN AND I ARE TEACHING SEMINARS AND WORKSHOPS. HERE’S A SHOUT OUT TO THE INCREDIBLE STAFF AT ARTS MIDWEST!! And now back to our regularly scheduled blog…
We re-booked a popular classical artist to perform at our venue. In promoting the concert, we used a photograph of the artist that one of our staff took the last time the artist performed here. Then we got a nasty phone call from the artist’s manager saying that we could only use “approved” photographs. Is this true? Since we took the photograph in the first place, don’t we own it?
Personally, without some significant costuming and airbrushing available, I hate having my photograph taken. Fortunately, I’m not a public figure who needs to attract audiences or sell albums. However, for those who are, there’s a reason agents and managers want to control what images are used to promote their artists: not everyone looks good in a candid photo. And it’s not merely a question of vanity. Singers and musicians often contort themselves into considerably unnatural—and unappealing—positions to achieve just the right note or sound. How an artist looks during a performance, or even in candid shots taken backstage after a performance or during a donor reception, doesn’t necessarily reflect how the artist wants to be seen professionally. And that’s really the point. At the end of the day, it’s the artist’s decision, not yours.
Just because you took the photograph, doesn’t mean you have the right to use it. Legally, there are two sets of rights inherent in every photograph: the rights of the photographer and the rights of the person being photographed. In order to use a photograph for commercial purposes (which includes marketing and publicity), you need to have permission from both. Most booking contracts require the manager or agent to approve all photographs precisely so that the artist can control their publicity and image, but even if the contract doesn’t require this, you still have no right to use anyone’s image for publicity or marketing without their permission.
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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!
Tags:agent, artist, Brian Taylor, commercial purposes, contract, Goldstein, image, marketing, photo, photograph, photographer, publicity
Posted in Artist Management, Arts Management, Contracts, Copyrights, Law and Disorder: Performing Arts Division, Licensing, Presenters, Venues | Comments Closed
Wednesday, September 5th, 2012
By 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!
Tags:Brian Taylor, contract, copyright, copyright infringement, Goldstein, license, manager, music, musician, ownership, permission, recording, release, royalties
Posted in Artist Management, Arts Management, Contracts, Copyrights, Law and Disorder: Performing Arts Division, Licensing, Music Rights, Publishing, Recordings | Comments Closed
Wednesday, August 8th, 2012
By 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.
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!
Tags:agent, artist, Brian Taylor, cannot make copies, commentaries, commercial context, copy, copyright, copyright infringement, european countries, Goldstein, license, Licensing, manager, permission, photograph, quotations
Posted in Artist Management, Arts Management, Copyrights, Law and Disorder: Performing Arts Division, Licensing | Comments Closed
Wednesday, August 1st, 2012
By Brian Taylor Goldstein
We teach classes, put on concerts and run festivals. At all of these events we take photos of the participants along with the members of our group. We want to be able to use the photos on Facebook and our website. So I am looking for a “blurb” to put in our programs and registration forms that says we have their consent to use photos of them, without having to get actual signed releases from everyone who attends our events in case we end up using their photo.
I don’t know that there is one magic “blurb” that will cover all of these scenarios. The closest, most generic thing I can think of would be: “I understand and agree that, by participating or attending this event or program, my photograph may be taken and used to market and promote other programs and performances of _____________.”
Generally, you don’t need anyone’s permission to take a crowd shot or a photograph of someone attending a public event as there is no right of privacy when people attend public events. That would allow you to put the photograph on a website or facebook. However, if you liked a particular image of a particular individual (ie: close up or head shot) so much that you wanted to feature it alone on posters, billboards, postcards, or as part of a featured publicity campaign, then you may be intruding on rights of endorsement/publicity and would need specific permission. Also, as a general rule, if you want to take the photograph or video of audience members attending a concert, you want to put a sign or placard out front stating that photographs will be taken at this performance so that, by proceeding, they can make the decision whether or not to participate. Printing a release in the program which they may or may not even read until after the concert doesn’t accomplish anything. On the other hand, if someone is filing out a registration form for a class or workshop, that’s the perfect place to put in the necessary language so that they can actually provide their consent when they sign and return the form.
Tags:audience members, Brian Taylor, crowd, endorsement, facebook, Goldstein, necessary language, participants, permission, photograph, publicity campaign, release, right of privacy
Posted in Artist Management, Arts Management, Copyrights, Law and Disorder: Performing Arts Division, Licensing | Comments Closed
Wednesday, June 27th, 2012
By Brian Taylor Goldstein
Do we legally have to have a music license if we have bands performing in our Country Club at weddings, social events, etc.?
Yes. Anytime music is publically performed, either live or by playing a recording through a sound system, a “performance license” is required. A “performance license” is a fee paid to the composer for the right to perform his or her composition publically (as opposed to performing music in your living room for friends and family.) Whenever you hear music being played in a department store, or in a restaurant, or in an elevator—even though its being played in the background and even though there are no fees or tickets to listen to the music—someone, somewhere has paid a performance license so you can enjoy an enhanced shopping, dining, or elevator-riding experience. Similarly, whenever music is performed live at a concert hall, nightclub, restaurant, or even, yes, at a private wedding held at a country club, someone, somewhere must obtain a performance license.
As the owner/operator of a performance space/venue, it is your legal responsibility to ensure that the necessary rights and authorizations have been obtained with respect to all copyrighted music that is publicly performed in your venue—even if the “performance” is for a private party. Just because the party is “private” or “by invitation only”, a country club itself is a public venue and the wedding guests are “public.” So, if your space is used for a wedding, and the happy couple hires a wedding band, it is your responsibility to ensure that there are appropriate licenses for the music being performed by the band.
While you could require the band or the event organizer to obtain the necessary licenses, that will not relieve you from responsibility (ie: liability) should they fail to do so. Most venues where live music is performed are better advised to obtain blanket performance licenses from the three performance rights licensing organizations: ASCAP, BMI and SESAC. Each of these organizations controls the rights to 1000s of compositions and a “blanket license” permits all the music from their catalogs to be performed at your venue. Its like one stop license shopping. While this will require you incur the license costs yourself, you can pass the costs along through your rental fees. Its also the best and only way to ensure that your legal responsibility as the owner/manager of the venue is being met. In other words, you need to obtain music licenses for the same reason you carry insurance: to protect the venue from liability.
If nothing else, think of it this way: for many artists/composers with lousy record deals, their performance licenses may be the only fees they receive for their work. If dancing and listening to their music makes the wedding guests happy, and happy wedding guests means happy Country Club members/renters, then all that happiness is at least worth a fee to the composer.
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“Law & Disorder:Performing Arts Unit” will take a short break on Wednesday, July 4. Our next post will be on Wednesday, July 11.
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For additional information and resources on this and other 
legal and business issues for the performing arts, visit ftmartslaw-pc.com.
To ask your own question, write to lawanddisorder@musicalamerica.org.
All questions on any topic related to legal and business issues will be welcome. However, please post only general questions or hypotheticals. FTM Arts Law reserves the right to alter, edit or, amend questions to focus on specific issues or to avoid names, circumstances, or any information that could be used to identify or embarrass a specific individual or organization. All questions will be posted anonymously.
__________________________________________________________________
THE OFFICIAL DISCLAIMER:
THIS IS NOT LEGAL ADVICE!
The purpose of this blog is to provide general advice and guidance, not legal advice. Please consult with an attorney familiar with your specific circumstances, facts, challenges, medications, psychiatric disorders, past-lives, karmic debt, and anything else that may impact your situation before drawing any conclusions, deciding upon a course of action, sending a nasty email, filing a lawsuit, or doing anything rash!
Tags:ascap, bmi, Brian Taylor, composer, Goldstein, legal responsibility, license, Licensing, music, necessary licenses, performance license, performance rights, performance space, private party, public venue, wedding band, wedding guests
Posted in Arts Management, Copyrights, Law and Disorder: Performing Arts Division, Liability, Licensing, Music Rights | Comments Closed
Wednesday, June 13th, 2012
By Brian Taylor Goldstein
Dear FTM Arts Law:
Could owning copyrights individually (as opposed to being owned by a corporate entity) ever be a personal liability? I understand that if copyrights are held in the name of a S-corp, C-corp, or possibly LLC, the corporate veil would shield my personal assets.
There is no liability in “owning” a copyright—unless you’ve written something really horrible and would rather not be credited. However, there can be considerable personal liability in stealing (or what attorneys call “infringing”) someone else’s copyright.
Let’s assume, for the sake of argument, that you are a composer and another composer claims that portions of your famous zither concerto contains unlicensed portions of the other composer’s music. If you own the copyright in your zither concerto personally, then you can be personally liable. But what if you had transferred or assigned the copyright to your publishing company and your publishing company is a Limited Liability Company (LLC)? Then both you and your company can be sued! In other words, a corporate veil does not protect you or your personal assets from liability for copyright infringement!
In most cases, you are correct that when your form a valid corporate entity (C-corp, S-corp, or LLC), then a “corporate veil” descends between the entity and the owners (even if there is only one owner) and the owners are not personally responsible or liable for the debts of the corporate entity. If, for example, your corporate entity enters into a contract to pay for services, and your corporate entity breaches the contract and refuses to pay, then only the corporate entity is liable, not you personally. However, this “corporate veil” only protects you from liability for debts, bad business deals, or contract breaches. It does not protect you from liability from what are called “torts.”
A “tort” is any thing other than a breach of contract which causes damages to another person and includes such things as fraud, negligence, assault, battery, defamation, and….copyright infringement. So, if the president of a corporate entity commits fraud, then both the corporate entity can be liable as well as the person who “personally” committed the fraud. Or, if a truck driver runs a red light and causes an accident, then both the truck driver can be sued, as well as the company he or she works for. It is the same with copyright infringement.
If you are accused of using unlicensed material in your zither concerto, it doesn’t matter who holds or owns the copyright. If it is ultimately determined that you used someone else’s copyrighted materials when creating the work in the first place, then you are personally liable. And it gets worse. Through a legal theory called “vicarious liability”, the musicians who perform you work could be liable, the agent or manager who promoted it could be liable, even the venue where it is performed could be liable.
In the end, the smartest way to protect your personal assets from potential claims of copyright infringement is either by using only original works or by ensuring that you have all of the proper licenses and permissions in the first place. Also, in order to protect yourself from frivolous lawsuits and false claims of infringement, register your copyrights with the US Copyright and Trademark Office.
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For additional information and resources on this and other legal and business issues for the performing arts, visit ftmartslaw-pc.com.
To ask your own question, write to lawanddisorder@musicalamerica.org.
All questions on any topic related to legal and business issues will be welcome. However, please post only general questions or hypotheticals. FTM Arts Law reserves the right to alter, edit or, amend questions to focus on specific issues or to avoid names, circumstances, or any information that could be used to identify or embarrass a specific individual or organization. All questions will be posted anonymously.
__________________________________________________________________
THE OFFICIAL DISCLAIMER:
THIS IS NOT LEGAL ADVICE!
The purpose of this blog is to provide general advice and guidance, not legal advice. Please consult with an attorney familiar with your specific circumstances, facts, challenges, medications, psychiatric disorders, past-lives, karmic debt, and anything else that may impact your situation before drawing any conclusions, deciding upon a course of action, sending a nasty email, filing a lawsuit, or doing anything rash!
Tags:breaches, Brian Taylor, c corp, composer, copyright infringement, Copyrights, corporate entity, corporate veil, debts, ftm, Goldstein, license, limited liability company, manager, permission, personal assets, personal liability, publishing company, s corp, torts
Posted in Arts Management, Contracts, Copyrights, Law and Disorder: Performing Arts Division, Liability, Licensing, Limited Liability Companies | Comments Closed
legal and business issues for the performing arts, visit ggartslaw.com
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.
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!
Tags:agent, artist, Brian Taylor, cannot make copies, commentaries, commercial context, copy, copyright, copyright infringement, european countries, Goldstein, license, Licensing, manager, permission, photograph, quotations
Posted in Artist Management, Arts Management, Copyrights, Law and Disorder: Performing Arts Division, Licensing | Comments Closed