Posts Tagged ‘composition’

Who Has To Pay The Likes of ASCAP, BMI, Etc?

Thursday, February 18th, 2016

By Brian Taylor Goldstein, Esq.   

I haven’t found an example that matches the situation of a 501(c)(3) I am familiar with. They throw a once-yearly art festival that spans a weekend (2days). They don’t charge the public any admittance. They raise money by charging fees for booth (10×10) spaces for (visual) arts vendors to sell their merchandise. They raise money for: their operating expenses, student art scholarships, member art scholarships, honoraria for program presenters at meetings, a fund for a permanent “home” for the 501c3 where they can hold meetings and store various gear for the meetings between times. They also have an open air music stage at that festival where local musicians perform. The musicians are paid under $150.00 for a 2 hour performance that includes 5 minutes each for set-up, a break, and stage clear-off. Most, but not all of the pieces performed are written by the performers. The “audience” is anyone who wanders by and stays to listen for a while. So, who, if anyone, has to pay fees to the likes of ASCAP, BMI, etc.?

It sounds like the 501(c)(3) organization in your scenario is trying to raise money for some very admirable and worthy goals: art scholarships, arts education, and even providing a place for local musicians to perform. In fact, these goals sound so worthy that I’m sure you wouldn’t object to the organization using your house for meetings or taking your car whenever they needed it to transport students to art classes, all without your permission and without paying you any fees. While you might be more than willing to donate your home or car on occasion, my suspicion is that you’d at least like to be asked first. As a general rule, the involuntary donation of other’s property without their permission—even if it’s for a really good cause—is also called “stealing.”

A musical composition—just like a home or a car—is considered property. It is no less valuable—indeed, I would argue, it is of greater value—than anything else you are required to pay for that has a physical price tag attached. A musical composition belongs to the composer who wrote it and/or the composer’s publishing company. Under U.S. Copyright Law, whoever owns a musical composition also has the absolute right to control and determine all uses of the property—this includes the right to perform the music live, record the music, play a recording of the music for the public, change the lyrics, make arrangements, or just about anything else you can think of to do with music; including the right to determine whether or not to donate the use of the composition for a worthy cause or project.

This means that any time a musical composition is performed live or a recording of the composition is played—whether it’s at a theater, concert hall, or out-door street festival (for-profit or non-profit)—“someone” needs to obtain the composer’s permission and, in most cases, pay a usage fee called a “Performance License.” ASCAP, BMI and SESAC are not roving bands of brigands waiting to pounce on unsuspecting non-profits who are merely trying to promote the arts. Rather, these organizations are trying to promote the arts too—primarily by reminding people (including other artists) not to take music for granted as a valueless commodity. ASCAP, BMI, and SESAC are organizations that represent composers, issuing performance licenses and collecting fees on their behalf.

If musicians are performing original music they composed themselves, then they can certainly agree to perform their own music for free. That can be a condition of hiring them to perform in the first place. However, if a musician or band is playing (“covering”) music composed by others, then just because the musicians agree to perform for a reduced fee, or even for free, doesn’t mean that the composers have allowed their music to be performed for free as well. A performance requires a performance license.

As for whose responsibility it is to obtain the necessary license, its legally everyone’s responsibility. If an unlicensed song is performed at a festival (even a free festival), then the U.S Copyright Act allows all the parties involved in arranging the performance—the artist as well as the venue or festival, and sometimes even the promoter, producer, or booking agent—to be liable for copyright infringement. So, while you could require the musicians to obtain their own licenses with regard to any music they are performing which they have not composed themselves, in my opinion that is a foolish policy. Why? Because most musicians will simply not bother and elect to take the risk of not getting caught. However, if they do get caught, it is the venue or festival who will be liable as well. It doesn’t matter that the festival may have required another party to obtain the license. That simply entitles the festival to sue the other party. The festival itself will remain liable to the composer.

So, in your case, while there are a number of factors that can determine the cost of obtaining performance licenses—the size of the venue, the price of tickets (or lack thereof), the number of performances, etc.–ultimately, it’s in the festival’s or organization’s best interest to ensure that the necessary permissions and licenses are obtained. While it might be tempting 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, 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.

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For additional information and resources on this and otherGG_logo_for-facebook legal, project management, and business issues for the performing arts, visit ggartslaw.com

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

All questions on any topic related to legal, management, 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 and/or posthumously.

__________________________________________________________________

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, Liability, Licensing, Music Rights, Non-Profits, Presenters, Publishing, Venues | Comments Closed

When Is A Plumber Worth More Than A Violinist?

Thursday, July 9th, 2015

By Brian Taylor Goldstein, Esq.   

We spent a lot of money making a CD to promote our orchestra. Now the composer’s publisher wants mechanical royalties. I just don’t understand why I have to pay mechanical royalties for a CD I am not selling, just giving to donors. Doesn’t the Composer want people to listen to his music?

Does your orchestra sell tickets to its concerts? Why? Don’t you want people to come and listen to the music?

While everyone in the performing arts end of the entertainment industry appreciates the importance of music, not as many appreciate or understand its value. In fact, many don’t like discussing commercial or business concepts like “value” at all. However, an artist’s time and talent is the artist’s service. It’s no less of a commodity that any other service like a plumber or electrician. While many would argue, and I would agree, that an artist is worth even more, when a pipe once burst in my house in the middle of the night, I was far more relieved to see a plumber show up than a violinist!

Whether a musician’s performance is enjoyed live or on a recording, the musician needs to be paid for providing his or her talent. Musicians have bills to pay just like everyone else. For the same reason, when a composer’s composition is performed, either live or on a recording, he or she needs to be paid for providing his or her talent in creating the composition in the first place. While it’s true that some composers receive commissions to create a work, not all do, and a commission fee only pays for the creation of the work itself. Just like an author gets a royalty every time her book is sold and a playwright gets a royalty every time his play is produced, a composer gets a royalty every time her music is performed or a recording made of the performance. When a composition is performed, the performer must pay a performance royalty, most often by obtaining a performance license from ASCAP, BMI, or SESAC. When a composition is recorded, the performer must pay a “mechanical royalty” (an outdated term for a “recording royalty”) directly to the composer or the composer’s publisher. The mechanical royalty is based on the length of the composition and how many copies are made of the recording of the performance of the composition.

I appreciate your frustration in having to pay mechanical royalties for CDs that are given away, but that’s like saying that musicians should be paid less if a concert is free or only based on the number of tickets sold. Whether or not you choose to sell the recordings does not change the fact that you recorded a performance of the composer’s composition. Just because you want to purchase a television to donate to an orphanage doesn’t mean that Best Buy is going to let you walk out of the store with it for free.  While many artists do graciously give freely of their time and talents in promoting the performing arts, that decision is not yours to make for them. Largesse and munificence should be offered, never presumed. If yours is the first recording of this particular work and the composer is not already widely performed and listed to, I bet the composer would consider receiving a number of free CDs in lieu of mechanical royalties.

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For additional information and resources on this and other GG_logo_for-facebooklegal, project management, 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, management, 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 and/or posthumously.

__________________________________________________________________

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 Contracts, Law and Disorder: Performing Arts Division, Licensing, Music Rights, Presenters, Publishing, Recordings | Comments Closed

How Is Copyright Infringement Like An Ugly Car?

Thursday, November 20th, 2014

By Brian Taylor Goldstein, Esq.   

Dear Law and Disorder:

What rights does a translator have? I translated a non-English script into English. All of the prior translations were very bad, which is why I did my own.  Everyone agrees mine is the best, even the original author. However, now that I am getting offers to produce my English version, the author and his publisher are insisting that, if I want to proceed, then they will own the translation and just pay me royalties for English productions using my translation. That doesn’t seem fair. The translation is all my work. I thought translators own the copyrights in their translations, so, don’t I already own it?

Robyn always tells me I never met an analogy I didn’t like, and I feel one coming on now.

Let’s assume I own a car which drives well, but is a hideous colour of besmirched baby blue (which, as it happens, was, in fact, the hideous colour of the first car I ever owned—a ’72 Buick Skylark which had belong to my grandfather, but I digress). You believe that you can re-paint my car and make it look like a Ferrari and offer to do so. Assuming I accept your offer, just because you paint my car doesn’t mean you now own the car or have any rights to drive it. I might owe you for your time and materials, but even if you make the car look better, the car itself still belongs to me. More importantly, let’s assume that I decline your offer, but you break into my garage and paint my car anyway. Even if you were somehow successful in turning my Buick into a Ferrari, you would still not have any ownership rights or control. You’d also be guilty of trespassing. (Incidentally, my mother did this very thing, erroneously believing that I would be touched and delighted with her thoughtfulness in having my car repainted, without my knowledge, from besmirched baby blue to her choice of vibrant puce. I was not.)

A copyright is like a car. The owner of a copyright has the exclusive right to determine who uses it and how—including the rights to edit it, make copies of it, perform it, record it, re-arrange it, re-orchestrate it, translate it, or create derivative works from it. A “derivative” work is anything that “derives” from the original work, such as a play or novel made into a film, a composition used to create a toy music box, etc. In short, there is nothing you can do without the owner’s permission and, in exchange for such permission, the owner can set any terms, reasonable or unreasonable, that the owner wants—including the right to refuse permission entirely. (Ok, there are one two minor exceptions, but they don’t apply to your question.)

If you want to translate someone else’s work, you must have the original author’s permission. If you don’t like the terms of the author’s permission, don’t do the translation and move on to another project. You are correct that, if translations contain a sufficient amount of creativity (as opposed to, say, a Google translation), then the translation is, itself, subject to its own copyright owned by the translator. However—and this is a BIG “however”—if you didn’t have the original author’s permission to make the translation in the first place, then your copyright is meaningless. It doesn’t matter how artistically nuanced, sensitive, or authentic it may be. As an unauthorized translation, any use of the translation would constitute an infringement of the original author’s copyright. Owning the copyright in the translation merely gives you the right to stop others, including the original author, from using it, but it doesn’t give you any right to use it without the original author’s permission.

Learn from my Mother—step away from the car!

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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 and/or posthumously.

__________________________________________________________________

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, Liability, Licensing, Music Rights, Publishing | Comments Closed

Does Background Music Require A Dramatic License?

Thursday, April 3rd, 2014

By Brian Taylor Goldstein, Esq.   

Dear Law and Disorder:

I have written a one-man show. Do I need to get a dramatic license for background music?

Just to make sure we’re all on the same page, let’s review:

In order for music to be “performed” (either live or via a recording) in a public place, there needs to be a “performance license.” Most often, these licenses are obtained from one of the performance rights organizations (ASACP, BMI or SESAC) and, most often, they are obtained by the theater, concert hall, or venue where the performance is taking place.

In order to perform music “dramatically”—that is, to use a composition as an integral part of a story or plot, or to interpret the composition dramatically, such as through the use of movement, costumes, and props—you must obtain a “dramatic license.” Most often, these licenses are obtained by the composer or producer of the dramatic work.

In short, you will always need a performance license to “perform” music. Whether or not you also need to obtain a “dramatic license” depends on the context of how you are using the composition. These contextual distinctions can be articulated as follows: if you plan to stand and perform, you only need a performance license. If, on the other hand, your performance involves sets and costumes and you will be performing the composition to help tell a story, develop a character, or interpret the composition, you will need both a dramatic license as well as a performance license.

In your case, your answer depends on what you mean by “background music.” If the music is being used purely to create a mood or theme and could easily be replaced with other music with a similar mood or theme (ie: “insert disco music here” or “play something peppy here”), then you only need a performance license. If, on the other hand, your show requires a specific work to be performed in the background at a specific time to help you dramatically convey a specific emotion or event in your narrative (ie: “Somewhere Over The Rainbow” plays in the background while you tell the story of the tornado that dropped a house on your sister), and the thought of replacing that work with anything else renders you heartsick and artistically impotent, then you need a dramatic license.

If you plan on re-recording the works (or recording your own performance), changing the orchestrations, or otherwise making any significant changes or adaptations other than those written by the composer, other licenses may be required as well. As a general rule of thumb, when using any creative material you did not create yourself, its always safest to ask first and use later.

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For additional information and resources on this and other GG_logo_for-facebooklegal 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, Music Rights, Publishing, Venues | Comments Closed

What Do You Mean I Need To PAY For Music?

Thursday, January 23rd, 2014

By Brian Taylor Goldstein, Esq.

Greetings,

I have recently been contacted by ASCAP asking for fees based on music played by live musicians. Are we required to pay if we do not pay the musicians? Any musician who plays at the location is not compensated for their efforts.

Is anyone else who works at or for your location compensated for their “efforts”? Waiters? Staff? Vendors or suppliers? Do you have to pay for liquor if you give it away? Who pays for the electricity or the heat? People can always agree to donate goods and services, and many do. However, as a general rule, society discourages the involuntary donation of other’s property without their permission—even if it’s for a really good cause.

A musical composition—just like a computer, a watch, or a car—is considered property. It is no less valuable—indeed, I would argue, it is of greater value—than anything else you are required to pay for that has a physical price tag attached. A musical composition belongs to the composer who wrote it and/or the composer’s publishing company. Under US Copyright Law, whoever owns a musical composition also has the absolute right to control and determine all uses of the property—this includes the right to perform the music live, record the music, play a recording of the music for the public, change the lyrics, make arrangements, or just about anything else you can think of to do with music. Any location where music is performed—whether it’s a theater, concert hall, or other venue (for-profit or non-profit) where music is performed live or whether it’s a restaurant or store that plays recorded music for their patrons’ listening pleasure whilst shopping or eating—needs to obtain the composer’s permission and, in most cases, pay a usage fee called a “Performance License.”

ASCAP, like BMI and SESAC, is an organization that represents composers and helps them by issuing performance licenses and collecting fees on behalf of the composer. It helps locations, too, because, rather than having to contact every composer individually, you can purchase a performance license from ASCAP to cover all of the composers they represent. It’s like one-stop shopping. However, as they don’t represent every composer, most locations need to purchase licenses from BMI and SESAC, as well.

If your musicians are performing original music they composed themselves, then they can certainly agree to perform their own music for free. However, if they are playing (“covering”) music composed by other artists, then just because the musicians agree to perform for free doesn’t mean that the composers have allowed their music to be performed for free as well. If ASCAP contacted you, it’s because music is being performed in your location and ASCAP is trying to ensure that you have obtained permission from each composer they represent to have their music performed. While there are a number of factors that can determine the cost of obtaining performance licenses—the size of your venue, the price of tickets, the number of performances, etc.–ultimately, it’s your responsibility to ensure that the necessary permissions and licenses are obtained.

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

Is The Term “Work-For-Hire” A Magic Phrase?

Thursday, December 12th, 2013

By Brian Taylor Goldstein, Esq.

An orchestra wants to commission a composer we represent to create an arrangement of a piece they want to perform. We were hoping that our composer would retain ownership of the arrangement so that in the future if the orchestra, or anyone else, ever wanted to play his arrangement, he would get a royalty. However, the most important thing is that we want the composer get credit for the arrangement whenever it is performed. In the commission agreement they sent us it says that the orchestra will get the right to perform the arrangement for one year, but it also says that: “Artist agrees that this work stated above shall not generate further monetary remuneration to the Artist (ie: a “work for hire”).” This doesn’t make any sense. If we agree to this, would our composer at least get credit ever time his arrangement is performed?

You’re correct. The commission agreement contains conflicting terms. It’s bad enough when attorneys use “legalese”, but when normal people try to use legal phraseology that they do not understand–or, worse, that they “think” they understand—chaos, rather than clarity, often ensues.

As a general rule, the person who creates something automatically owns it and controls all rights. The mere fact that you pay someone for their services does not inherently mean that you own the work they produce or have any rights to the work. For example, paying someone to design your website does not mean you also purchase ownership of the design or have any rights to use the design. Similarly, commissioning someone to provide creative services (such as composing music) does not mean that you own the material they create or have any rights to perform the composition. All rights remain with the author of the work unless either there is an agreement between the parties specifying rights and ownership or the work constitutes a “work for hire.”

A “work-for-hire” means that the person who paid for the work is considered to be the author and owns all rights to the work. However, under U.S. copyright law, a “work-for-hire” occurs in only one of two very specific scenarios:

1)         When an employee creates material for an employer within the scope of the employee’s employment, the employer and not the employee is considered to be the author and the employer automatically holds the copyright. The employee gets nothing but a pay check; or

2)         A work is specially ordered or commissioned for use as a contribution to a collective work; a part of a motion picture or other audiovisual work; a translation; a supplementary work; a compilation; an instructional text; a test; answer material for a test; or an atlas AND the parties expressly agree in a written contract signed by both parties that the work shall be considered a work made for hire.

In your case, I am sure that the orchestra believe that merely using the magic words “work for hire” will automatically transfer all rights and ownership in the arrangement to them. It does not. Why? Because although there is a written contract, the arrangement will not be used as a contribution to a collective work; as part of a motion picture or other audiovisual work; a translation; a supplementary work; a compilation; an instructional text; a test; answer material for a test; or an atlas. (Yes, this is a very odd and restrictive list. Blame Congress…while you’re at it, blame the lobbyists for the motion picture industry, text book industry, etc.) Unless both elements are present, it does not create a “work for hire.” If the orchestra wanted to own the arrangement, the commission agreement would need to include an assignment of copyright and a grant of all rights and title. As it doesn’t, if you were to sign the agreement, the orchestra would, in fact, have no rights to the arrangement. However, you’d also be taking advantage of the orchestra’s obvious lack of knowledge of copyright law as, clearly, they believe they would be owning the arrangement. Should they ever attempt to assert their rights, your composer would need to bring a lawsuit to assert his ownership and nullify their claims. This would not only result in needless legal expenses, but probably make any other orchestra think twice about commissioning your composer.

Rather than engage in legal games, if your composer is not willing to transfer ownership to the orchestra, I would strongly advise you to bring that to the orchestra’s attention and discuss the matter. If the orchestra insists on owning the arrangement, then you can decide whether or not to decline the commission or edit the commission agreement to specify the parties’ intentions. Should your composer decide to assign ownership to the orchestra, the parties can always agree that your composer would be given credit as the composer. However, that must also be specified in the contract! Preferably, in English.

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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 Agents, Artist Management, Arts Management, Contracts, Copyrights, Law and Disorder: Performing Arts Division, Licensing, Music Rights, Presenters, Publishing, Recordings | 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.

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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!

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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