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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.

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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, Copyrights, excerpts, Goldstein, images, license, music, orchestra, orchestral performance, ownership, performance rights, performing rights society, physical possession, purchasing music, sesac, sheet music
Posted in Arts Management, Copyrights, Law and Disorder: Performing Arts Division, Licensing, Music Rights, Publishing | Comments Closed

Responsibility…Its Not Just About Visas

Wednesday, January 30th, 2013

By Brian Taylor Goldstein, Esq.

Dear Law & Disorder:

We are facing a visa problem for one of our Russian singers. She is supposed to sing in the United States at the end of February with a US Orchestra. Now it turns out that the orchestra is neither willing to apply nor to pay for the visa fees that would be a total of $1800 ($250 for the AGMA union consultation, plus $325 to USCIS, plus another $1,225 to USCIS to have the approval notice expedited) and the artist does not want to pay this big fee for just one engagement of 8 days. The visa petition is ready to be mailed, but now we are wondering if there is a way of reducing the costs. The singer has been to the US many times to perform, and is a member of AGMA. On the top of the visa petition, she will also have to pay $190 for an interview at the US Embassy in Moscow. Would there be a way of getting her a visa without having to pay all these costs (or at least pay less?) Help!

If the singer is a current AGMA member, AGMA may waive its $250 consult fee, but you’ll need to contact AGMA directly to confirm their current policy. Otherwise, sadly, there is no way to reduce the costs you have listed.

USCIS charges a basic filing fee of $325 for standard processing. USCIS standard processing times can vary wildly, and change without notice. USCIS has recently been processing petitions within 3 – 4 weeks of filing, sometimes even sooner. However, if you can’t take the risk, you will, indeed, need to pay an additional fee of $1225 for premium processing in exchange for which USCIS will guarantee to review the visa petition within 15 days of filing. (Remember, “review” does not guarantee “approval.” USCIS can always review the petition and still return it, asking for more evidence or supporting materials.) While there is a process by which you can ask for an “emergency expedite” and waive the premium processing fee, this is reserved for instances of true “emergencies” (ie: an ill performer requires a last minute replacement). Financial hardship won’t qualify as an “emergency.” There is also no mechanism by which to avoid the $190 visa application fee required to be paid to the consulate. (Some consulates charge even more.)

What makes this situation truly unfortunate is that all of this could have been avoided. When a non-US artist is engaged to perform in the US, who will bear the artist’s visa costs, along with who will take responsibility for preparing and filing the artist’s visa petition, is something that can and should be negotiated at the time of the engagement. I encounter far too many situations where artists are booked and, while fees and travel arrangements are discussed at length, no one discusses any of the other details that are critical to a successful engagement—such as visas and tax withholding. Managers too often assume the opera companies, orchestras, or presenters will handle it, the opera companies, orchestras, and presenters assume the managers will handle it, and the artists assume that they are paying a 20% commission for “someone” to handle it so they don’t have to. Remember, there are no industry standards!

While it won’t necessarily help your current dilemma, the solution in the future is quite simple: if you are a manager or agent, no matter how badly you want to book an engagement for your foreign artist, before you do so, confirm with the presenter or venue whether or not the artist already has a visa, will require a visa, and/or who will pay and petition for the visa. If you are an opera company, orchestra, or presenter, no matter how badly you want to book a particular foreign artist, always ask their manager or agent whether or not the artist already has a visa, will require a visa, and/or who will pay and petition for the visa. While you’re at it, you might as well negotiate and confirm everything else, too: licensing, cancellation terms, recording rights, etc. A lot of angst could be avoided if each party in an engagement contract makes it their responsibility to discuss with the other party all contingencies and potential problems that could arise. Avoiding an empty stage and an unhappy artist is everyone’s responsibility.

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WE WILL BE TAKING A BREAK THE WEEK OF FEBRUARY 4 AS WE RELOCATE OUR OFFICES.

OUR NEXT BLOG POST WILL BE ON FEBRUARY 13.

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For additional information and resources on this and other legal and business issues for the performing arts, visit ggartslaw.com

To ask your own question, write to lawanddisorder@musicalamerica.org.

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THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

Tags:agma, approval notice, artist, Brian Taylor, cancellation terms, engagement contract, Goldstein, last minute, manager, opera, orchestras, petitions, processing times, risk, uscis, visa application, visa fees, visa petition, visa problem
Posted in Agents, Artist Management, Arts Management, Contracts, Law and Disorder: Performing Arts Division, Presenters, Taxes, Touring, Venues, Visas | 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!

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For additional information and resources on this and other legal and business issues for the performing arts, visit ggartslaw.com

To ask your own question, write to lawanddisorder@musicalamerica.org.

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THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

Tags:Brian Taylor, commission fee, composer, copyright, copyright law, entertainment industry, Goldstein, music, ownership, recording, royalties, songwriter
Posted in Artist Management, Arts Management, Contracts, Copyrights, Employees, Law and Disorder: Performing Arts Division, Licensing, Music Rights, Publishing | Comments Closed

Distinguished Artists Are Extraordinary Artists!

Wednesday, January 16th, 2013

By Brian Taylor Goldstein, Esq.

Hi Musical America,

I am a Danish citizen and I plan to go to the Unites States on a promo tour in spring. I know that it is necessary to apply for an O-1B visa being a solo artist. I have a native US promoter who will petition for me. My question is: How am I going to prove that I have “extraordinary ability” as a performer to qualify for an O-1B visa? It sounds to me that you need to be either Rolling Stones or Anna Netrebko to get through the needle’s eye. My music is folk/new age/healing and it has a limited audience. I do not have a big international following or a large music sale to boast. Any advice is appreciated.

While the US government doesn’t do much to support the arts, they threw us a tiny crumb when they wrote the O-1B regulations. As opposed to other professions covered by the O-1B category (sports, business, education, and science), an artist seeking O-1B classification does not have to be “extraordinary” to qualify for an “extraordinary ability” visa. Rather, the artist has to show that he or she is “distinguished.” The applicable regulations define “distinguished” as “…a degree of achievement and recognition beyond that ordinarily encountered.” While Mick Jagger and Anna Netrebko would most certainly qualify, you do not need to be at that level to obtain an O-1B visa. Nor do you need to compare your level of achievement and recognition to all musicians in all other genres. Rather, you only need to establish that you have “some” degree of recognition and achievement within the genre of folk/new age/healing music.

In preparing your petition, you would need to provide documentation of your career and achievements to show that you are at least “distinguished” in some way. Most often, these include copies of articles, reviews, blogs, and programs from your live performances, as well as any other materials written about you. You would also want to include copies of your recordings as well as proof of any awards you have won. You would want to explain that the genre of folk/new age/healing music does not get the same degree of press and attention as other genres, but that, within the genre of folk/new age/healing music, your are at least “highly praised” or “well-known”.

The most important thing is to explain everything to USCIS. The biggest mistake most artists and agents make is preparing a visa petition, attaching documents, and failing to write a comprehensive cover letter explaining the evidence. You want to hold the USCIS examiners hand and walk them through your qualifications step-by-step. Do not assume that the USCIS examiner listens to your genre of music (or ANY genre of music, for that matter) or is familiar with your awards. Explain every nuance. Explain your achievements. Explain every detail. Above all, make sure to provide translations of anything not in English.

Everything you could possible want to know about obtaining a visa for an artist is on the website www.artistsfromabroad.org. With some time and patience, you should be able to create a visa petition to obtain your O-1B without having won a Grammy, though I sincerely hope, one day, you do!

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For additional information and resources on this and other legal and business issues for the performing arts, visit ggartslaw.com

To ask your own question, write to lawanddisorder@musicalamerica.org.

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THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

Tags:Brian Taylor, Goldstein, Tour, uscis, visa petition
Posted in Artist Management, Arts Management, Law and Disorder: Performing Arts Division, Touring, Visas | Comments Closed

Ask, and Ye “May” Receive…or Not

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 4^th 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.

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THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

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

What’s Wrong With Canada?

Wednesday, December 19th, 2012

By Robyn Guilliams, Esq.

Dear Law and Disorder

Why is it necessary for Canadian performers to obtain work permits in order to perform in the United States? Although Visas are not necessary, the work permit is necessary. Why are the artists not able to enter the way other business people under the North American Free Trade Agreement? Cultural industries exempt are books, films and recordings. Why is performance by artists in the USA not covered by the Agreement?

We get this question a lot from our “northern” artists and the answer, though simple, is frustrating: the North American Free Trade Agreement (NAFTA) doesn’t cover performing artists.

Just like performers from all other non-U.S countries, Canadian performers are required to obtain O or P work authorization to perform in the United States. It is true that certain types of Canadian and Mexican workers may enter the United States and work legally pursuant to NAFTA. Unfortunately, this NAFTA exception to the usual visa requirement does not extend to performers.

It’s also true that NAFTA includes provisions pertaining to “Cultural Industries,” which include the production, distribution and sale of items such as books and magazines, CDs, DVDs, and sheet music. However, these provisions of NAFTA do not apply to performances. For these reasons, the usual laws pertaining to the arts and entertainment industry – including those pertaining to immigration and taxes! – apply equally to Canadians as well as all other non-resident artists performing in the U.S.

As for “why” NAFTA does not cover performing artists and performers, you would have to ask the unholy alliance of lobbyists, legislators, diplomats, and bureaucrats who negotiate these things.

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LAW AND DISORDER WILL BE TAKING A BREAK FOR THE HOLIDAYS!

WE WILL RESUME ON JANUARY 8, 2013….JUST IN TIME FOR APAP!!!

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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.

__________________________________________________________________

THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

Tags:canadian performers, canadians, north american free trade agreement, performer, Robyn Guilliams, visa requirement, work authorization, work permits
Posted in Artist Management, Arts Management, Law and Disorder: Performing Arts Division, Taxes, Touring, Visas | Comments Closed

Can I Re-Use an Old Union Consult Letter for a Visa Petition?

Wednesday, December 12th, 2012

By Brian Taylor Goldstein, Esq.

Dear Law and Disorder:

Last year I filed a P-1 petition for a group. I obtained a consult letter from AFM. When I filed a petition for their 2013 tour, the USCIS said I needed to get a new consult letter. I thought that union opinion letters are good for 3 years? Did that rule change?

No, nothing’s changed. There’s just a bit of confusion, that’s all. Union consultations for O-1B petitions are good for 2 years provided the artist is performing within 2 years of the date of the original union consultation letter. If that’s the case, then you don’t need to get a new one. However, this has never been the rule with P-1 petitions or any other category: O-2, P-1S, etc.

So, if you obtained an O-1B for an opera singer and you have an AGMA consult letter dated October 1, 2012, then that same consult letter can be used for subsequent O-1B petitions for the singer’s subsequent engagements through October 1, 2014. You just need to be able to provide a copy of the prior consultation letter. Even if the original consult letter was written for a different petitioner, you can still use it. It’s the identity of the artist that counts. However, if you obtained a P-1 for a group and you have an AFM consult letter dated October 1, 2012, then any and all new petitions will require new consult letters.

In your case, I assume you received a Request for Evidence (RFE) from USCIS. You just need to get a new consultation letter from AFM and attach it to your RFE response. That should do the trick.

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For additional information and resources on this and other legal and business issues for the performing arts, visit ggartslaw.com

To ask your own question, write to lawanddisorder@musicalamerica.org.

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THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

Tags:3 years, afm, agma, Brian Taylor, consultation letter, consultations, engagements, Goldstein, petitioner, rfe, uscis, visa petition
Posted in Artist Management, Arts Management, Law and Disorder: Performing Arts Division, Touring, Visas | Comments Closed

Silence Is Not Golden!

Wednesday, December 5th, 2012

By Brian Taylor Goldstein, Esq.

Dear Law and Disorder:

Help! We are a small agency. We booked an engagement for one of our artists at a venue that has now cancelled the date. We had a series of emails with the venue confirming the date and fee and then sent them a formal contract that was never returned. We followed up with more emails confirming the date and asking for the contract to be signed and returned, but they never did. The venue is now claiming that because they never signed and returned the contract, they were never obligated to do the show. Are they correct? Don’t the emails count for anything? How to we keep this from happening in the future?

When it comes to contracts, silence is never golden. If you sent a contract and it was never signed and returned, that should have been a huge red flag or at least an implicit sign that read: “Stop! Go no further! Abandon all hope ye who enter here!”

If you have a series of emails confirming the engagement, and you can show that you relied on those emails by reserving the date and by turning away other bookings for that date and you can show that the venue knew you were relying and never stopped you, then, legally, you may be able to establish that there was an implicit contractual relationship. But that’s only going to get you so far! If the venue still refuses to honor the engagement or re-book or pay a reasonable cancellation fee, then you’re going to have to decide whether or not its worth pursuing a claim by filing a lawsuit.

And, of course, it all depends on what your emails actually say. Often, I’ve seen a chain of emails between a venue and agent that confirms the engagement date and fee, but ends with the agent writing something like: “Great. So we’re all set. I’ll get a contract out to you right away.” Such language can be legally construed as making the entire deal contingent on the contract. And if the contract contains additional terms and requirements that were never previously discussed, then, the contract will be legally construed as a “counter-offer”, which the venue can then refuse.

If you’re taking the time to send out contracts, then you need to make sure they are signed and returned—and, if they are not, assume the engagement is cancelled, re-book the date and move on. I realize that the realities of time and other logistics can make babysitting contracts difficult. There are many times when situations will demand that you proceed without a signed contract. However, when you choose to do so, know that you are assuming the risk. If there is a breach or cancellation, you can’t then go back and seek the protection of a contract you never followed up on or enforce terms that were never agreed upon.

Even when you have a signed contract, there’s no guarantee that the other party won’t breach it. Contracts are not self-enforcing. They merely give you the right to go into court and present a strong argument that you are entitled to damages. More importantly, they give both parties the opportunity to share concerns and expectations and access risks and challenges to the relationship. If things do go badly, the contract is a tool through which you can make an argument. For certain, it’s not the only tool, but I’d much rather pound a nail with a hammer than my head.

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For additional information and resources on this and other legal and business issues for the performing arts, visit ggartslaw.com

To ask your own question, write to lawanddisorder@musicalamerica.org.

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THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

Tags:agent, artist, bookings, breach, Brian Taylor, cancellation fee, Contracts, contractual relationship, damages, formal contract, Goldstein, venue
Posted in Agents, Artist Management, Arts Management, Contracts, Law and Disorder: Performing Arts Division, Liability, Presenters, Touring | Comments Closed

Can We Loan Sheet Music?

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.

__________________________________________________________________

THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

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

Does Original Music Exist Anymore?

Wednesday, November 21st, 2012

By Brian Taylor Goldstein, Esq.

Dear Law and Disorder:

I have a small venue. All 3 licensing companies are claiming I need to pay them for my karaoke and music that occurs weekly, but the bands that I have sign contracts making sure they only play their original music, nothing copyrighted. These companies have been strong-arming me with threats that there’s no such thing as original music anymore and that I must pay or I will be heavily fined. Is this true and, if so, is there blanket licensing that I may acquire for all 3?

Well, if there’s “no such thing as original music anymore”, that’s news to me and, I suspect, the thousands of composers out there!

If you require your bands to perform only original music that they composed themselves, then you do not need to obtain performance licenses from ASCAP, BMI or SESAC. The bands can give you all the permissions you need. However, if the bands breach their contract by “sneaking in” a few covers and performing music written by other bands or artists, then you would be liable for not having the proper performance licenses in place. (The band would be liable, too—for both breach of contract AND copyright infringement—but the performing rights organizations are more likely to go after you than the band.)

The karaoke is another matter. Karaoke machines, like jukeboxes, require licenses to be used in public venues such as yours. If you are featuring weekly karaoke nights, then you definitely must obtain karaoke licenses. The good news, such as it is, is that you can, indeed, obtain blanket karaoke licenses from each of the three performing rights organizations. The licenses will be based on the size and income of your venue.

Thanks for writing…and thanks to all of you who have written in, supported our blog, and asked great questions! Keem ‘em coming! Happy Thanksgiving!

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For additional information and resources on this and other legal and business issues for the performing arts, visit ggartslaw.com

To ask your own question, write to lawanddisorder@musicalamerica.org.

__________________________________________________________________

THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

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

Musical America Blogs

Archive for the ‘Arts Management’ Category

Dad, May I Borrow the Car?

Responsibility…Its Not Just About Visas

Commissioners Beware!

Distinguished Artists Are Extraordinary Artists!

Ask, and Ye “May” Receive…or Not

What’s Wrong With Canada?

Can I Re-Use an Old Union Consult Letter for a Visa Petition?

Silence Is Not Golden!

Can We Loan Sheet Music?

Does Original Music Exist Anymore?

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