Posts Tagged ‘Education’

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

Advice For The Young and Restless

Thursday, May 14th, 2015

By Robyn Guilliams     

GG Arts Law and GG International are in the process of hiring a new administrative assistant.  As I’ve been reviewing applications, I’m sad to say that I am shocked – shocked! – at the very poor quality of some of the cover letters and resumes we’ve received.

So, as a public service to all of you “young’uns” out there who are searching for a job in the performing arts field, or for those of you who already work in the arts and would like to move up the ladder as quickly as possible, I’d like to offer a bit of advice – some pitfalls to avoid – when submitting a cover letter and resume to a potential employer:

  • Spelling errors:  This is the most prevalent problem, and the one that is most easily remedied.  Do not rely on spell-check, people!  Proof-read your letter and resume, and then proof them again.  I realize we all make the occasional spelling mistake (my own emails are proof of this), but the documents you submit as your job application are the only criteria by which you are judged for a job, at least initially.  If you won’t take the time to proof-read your letter and resume, this tells me everything I need to know about what kind of employee you will be.  When I see these types of errors, the letter and resume immediately go into the recycling bin.
  • Writing Style:  The ability to write well is required for many jobs in our industry.  (And even if not, it’s a great skill to have!)  A number of the cover letters we’ve received, while not being grammatically incorrect, are very awkwardly written.  I highly recommend “The Elements of Style”, by William Strunk and E.B. White, to anyone wishing to improve his or her writing skills.  This book is a great resource for young professionals who want to learn to communicate more effectively through writing.
  • Irrelevant Job Experience:  Tailor your resume to the job for which you’re applying.  There is no reason to include work experience that is completely irrelevant.   For instance, don’t include in your “employment history” your job as a bag-boy at Piggly Wiggly when you were 14 years old.  I don’t care.  Don’t tell me about working as a ball-girl for your college softball team.  Seriously.  Nothing about that work experience is going to make me say, “This is the person we’ve been looking for!”
  • Try to keep your resume to one page.  Unless your professional career began at age eight, you probably don’t have enough relevant content to justify a longer resume.  Keep in mind – there’s no need to write a long narrative describing the responsibilities of each of your jobs.  Bullet points will do.  And, please, please, don’t use an 8-point font in an effort to cram everything on to one page.  I’m old, and I can’t read anything written in an 8-point font unless I hold the page an inch from my face.  I don’t like doing this.  It’s annoying, and it makes me feel old.
  • Don’t include the details of your entire professional life in your cover letter.  This is why you attach a resume.  Pick a few items from your resume that are directly relevant to the job for which you are applying, and include a detail or two about each experience.  Your cover letter should be no more than three paragraphs, and should be concise.  As I’m reviewing 150 letters and resumes, and I come across your two-page, ten-paragraph cover letter, I’ll want to stick a fork in my eye.  I already don’t like you.  (This really isn’t the reaction you’re looking for from your potential employer, is it??)
  • Avoid hyperbole in your cover letter.  Don’t tell me about your “extensive” experience in whatever.  If you are in your early twenties, it’s highly unlikely that you have extensive experience in anything.  (See above regarding the one-page resume.)  Along the same lines, don’t tell me about your “professionalism”, “strong work ethic” or “integrity”.  I see these descriptions so often that they’re virtually meaningless.  And don’t describe yourself as “an ideal fit” or “exceptionally qualified” (particularly when you are not at all qualified).  Your resume will speak for itself in this regard.
  • Don’t describe yourself as “detail-oriented” in your cover letter.  (This goes over especially badly when your letter is riddled with typos.)  When applying for a job, everyone describes themselves as detail-oriented.  Who the heck is going to say “I’m not so great with details”?  I can get an idea of your attention to detail from how carefully you’ve crafted your resume and cover letter, the types of jobs you’ve held in the past, and your responsibilities in those jobs.
  • In your cover letter, there’s no need to write about how “passionate” you are about the arts, how much you love going to the theater, or that Beethoven’s Eroica is your favorite musical work.  This is not your OkCupid profile.  Everyone goes into our field because we feel strongly about the arts, and we wouldn’t be happy working in any other field.  Your education, work history and other relevant experiences will show that you are committed to a career in the arts!

We’re excited about the prospect of bringing on someone new, although we’re sad that our current assistant, Ann, is leaving.  Take care, Ann – we’ll miss you!

_________________________________________________________________

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 Arts Management, Employees, Law and Disorder: Performing Arts Division | Comments Closed

Is There A Showcase Visa Exception?

Thursday, December 4th, 2014

By Brian Taylor Goldstein, Esq.   

Dear Law and Disorder:

We have arranged for one of our foreign groups to perform a showcase at the upcoming APAP conference in New York. Will they need artist visas? Obviously, we’d like to avoid that time and expense. The artists are all from Europe and could enter as visitors under ESTA. Couldn’t we just say that the performance is intended to educate presenters and the US market about the group and is, thus, “educational”?

Nice try. Please see the bailiff on the way out to make arrangements to pay your fines and penalties. While visitors to the US are permitted to attend seminars or engage in “short courses of study”, the education must be for the benefit of the visitor, not the audience. When traveling through the demented kingdom of US arts immigration, never take a circuitous route through the fire swamp of cute arguments and clever schemes on the rare occasion when a straightforward path may actually present itself.

The official rule is and has always been that artists cannot perform in visitor status (which means either entry with an actual visitor visa or entry through the visa-waiver/ESTA programme.)  If an artist performs in the US (and does not have either a student (F) visa approved for “practical training” or a similar training-based visa such as a J or M), then the artist must have either an O or P visa. It doesn’t matter if the artist isn’t being paid. It doesn’t matter if tickets are free. It doesn’t matter if the audience is enthralled, inspired, impoverished, infirmed, intoxicated, or indifferent. Any performance in front of an audience triggers the need for an O or P visa.

HOWEVER, an artist IS allowed to enter the US in visitor and/or ESTA status and perform if the performance constitutes an “audition.” Several years ago, USCIS clarified that “showcases” at official booking conferences such as Arts Midwest, APAP, etc. could qualify for this exception provided certain conditions were met:

(1) The showcase cannot be open to the public (regardless of whether or not tickets are sold or free);

(2) The performance can only be for the benefit of registered conference attendees; and

(3) The artist(s) cannot engage in any other performances while in the US.

So, if your showcase is of the variety that are held in one of the ersatz performance spaces at the Hilton and open only to official, registered conference attendees with official, multi-beribboned badges, then you are in luck. On the other hand, if your showcase is of the kind that are held around New York City in an actual performance space where the general public will be attending, but APAP conference registrants can come for free, then your artists will need O or P visas. In other words, its not enough merely to call a performance a showcase—it must be an APAP-only showcase or it doesn’t count.

If you believe that your artists qualify for the showcase/audition exception, then I would still strongly recommend that each artist travels and enters the US with a signed letter from you, on your official letterhead, confirming their entry and departure dates and confirming that all of the above-conditions are met.

__________________________________________________________________

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 Artist Management, Law and Disorder: Performing Arts Division, Visas | Comments Closed

“Fair Use” Just Isn’t Fair!

Wednesday, May 29th, 2013

By Brian Taylor Goldstein, Esq. Dear Law and Disorder: I have read your clearly stated articles about mechanical use and rights.  What about “fair use”? Aren’t there specific scenarios where permission is not needed to use a recording of someone else’s music? Beware of what you ask. You are about to open a box whereupon a thousand nasties will fly out! Now that you have been duly warned…. Copyright Law gives the owner of a copyright the exclusive right to perform, edit, arrange, or reproduce a protected work in copies or recordings, as well as the exclusive right to authorize others to do so. Anyone who copies, performs, or records a protected work without the copyright owner’s permission, even including small excerpts, is guilty of copyright infringement. Fair Use is a legal doctrine whereby certain usages of a particular work “may” be considered permissible without the copyright owner’s permission, if the purpose for which the work was used is determined to be “fair”, such as criticism, comment, news reporting, teaching, scholarship, research, and parody. As the U.S. Copyright Act is intended, albeit arguably, to afford the maximum protection of copyright owners and the creators of protected works, it does not set forth specific usages that are inherently “fair.” Rather, the analysis and determination of what constitutes Fair Use is left entirely to a judge to decide in her or her sole discretion. In other words, should you decide to use any portion of a protected work without the owner’s permission, you won’t know whether your use is a permissible Fair Use or a prohibited infringement until after the copyright owner files a lawsuit claiming an infringement and everyone goes to court, makes arguments, and the judge decides. The only guidance given by the U.S. Copyright Act is the following four-part test which judges use in making the Fair Use analysis and determining whether or not a particular use is “fair”: (1) the purpose and character of the use, including whether such use is of commercial nature or is for non-profit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work. As you may imagine, the application of these factors is both highly fact specific and highly subjective. Any one factor can tip the balance for or against Fair Use. More significantly, just because one judge determines a specific usage to be Fair Use within a specific scenario does not mean that a different judge will determine that a similar usage will be Fair Use in a similar scenario. Determinations can, and do, change from judge to judge. Case law is filled with conflicting examples of recordings where one judge ruled that a specific usage of a melody was a parody (Fair Use) and another judge in another state said a similar use of a different melody was satire (not Fair Use). Similarly, judges have ruled the use of as little as thirty seconds to be an infringement and usage of entire works to be Fair Use. Essentially, this means that Fair Use is an exception, or defense, to a claim of infringement, not a right in and of itself. To be fair, there are many legal scholars who would argue, correctly, that Fair Use is not a mere defense, but is, in fact, an important right that balances copyright law with the First Amendment and that the current system gives far too much power to wealthy copyright owners who can use the mere threat of lawsuits to quash any usage of their works, even usage that might legitimately constitute Fair Use. I don’t necessarily disagree with this position. However, it’s more aspirational than reflective of the current realities that you and I have to deal with. Until Congress comes up with better guidelines (and the likelihood that Congress can “come up” with much of anything these days is slim), we are stuck with the current system and all its inherent flaws and inconsistencies. Despite the distinctions between Fair Use and infringement being uncertain and difficult to define, there are, nonetheless, a few certainties which you can depend upon: There is no specific number of words, lines, or notes that may safely be taken without permission. Acknowledgement of the source of the copyrighted material does not constitute Fair Use and is not a substitute for obtaining permission where permission is required. Just because something is used by a non-profit and/or used for “education” does not mean its “fair.” Materials you find on the Internet is neither inherently public domain nor Fair Use. Just because you do not sell anything, does not make your use of someone else’s work Fair Use. At the very least, when determining whether or not using someone else’s work without permission might be Fair Use, take only the smallest amount of a copyrighted work necessary to accomplish your goal of criticism, comment, news reporting, teaching, scholarship, research, and/or parody. As a general rule, the more you take, the less likely your use will be considered “fair.” It is also reasonable to assume that if you are using any part of a copyrighted work for promoting or marketing your services or performances, or your organization’s services or performances, even if no copies are being sold, it probably IS NOT fair use. Of course, the safest course is always to get permission from the copyright owner before using copyrighted material. __________________________________________________________________ For additional information and resources on this and other legal and business issues for the performing arts, visit ggartslaw.com To ask your own question, write to lawanddisorder@musicalamerica.org. All questions on any topic related to legal and business issues will be welcome. However, please post only general questions or hypotheticals. GG Arts Law reserves the right to alter, edit or, amend questions to focus on specific issues or to avoid names, circumstances, or any information that could be used to identify or embarrass a specific individual or organization. All questions will be posted anonymously. __________________________________________________________________ THE OFFICIAL DISCLAIMER: THIS IS NOT LEGAL ADVICE! The purpose of this blog is to provide general advice and guidance, not legal advice. Please consult with an attorney familiar with your specific circumstances, facts, challenges, medications, psychiatric disorders, past-lives, karmic debt, and anything else that may impact your situation before drawing any conclusions, deciding upon a course of action, sending a nasty email, filing a lawsuit, or doing anything rash!

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

THE REGENERATION GAP

Tuesday, February 19th, 2013

By James Conlon

A few months ago I wrote about two extraordinary projects in Rome that introduce children, from five to eighteen years of age, to opera. Performances of The Magic Flute and Don Giovanni were presented to thousands of young people by two completely separate entities:  the Rome Opera and the Tito Gobbi Foundation. The method I witnessed seemed to me an ideal model for introducing opera through participatory–“interactive” if you like–performances.

In the course of a recent series of concerts in Berlin and tour in Spain with the Deutsches Symphonie Orchester Berlin, I conducted an introductory program for children (ages six to twelve) of Dvořák’s New World Symphony, excellently presented by moderator Christian Schruff. It consisted, naturally, of musical excerpts, and the participation of special guest, Jocelyn B. Smith, a New York born jazz singer who has lived in Berlin for many years, who coached the audience in singing “Swing Low, Sweet Chariot,” while explaining its coded meaning. The cost was four euros for children and ten for the adults who accompanied them.

Not long ago I participated in a similar program in Leipzig with the Gewandhaus Orchester: Alexander Zemlinsky’s Die Seejungfrau (The Mermaid) interlaced with Hans Christian Andersen and the composer’s life as a young man in love with Alma Schindler (later Mahler).

We do all this in the United States, and, in many places, we do it well. But what struck me about the success of these European ventures was the depth of commitment on the part of all the participants; musicians, moderator and parents.

Concerts take place on weekends, so families can attend together. Whereas events organized through schools are often excellent, I believe that arts attendance with older members of the family adds a valuable additional context to the experience.  My septuagenarian friend from Berlin brought his granddaughter with him for her eighth birthday. Two musician friends, who had travelled from Cologne, were joined by their twenty-five year-old (!) daughter who studies in Berlin. On the way out, they told me, they had overheard a little boy, who they had guessed to be about five or six, turn to his mother and say (roughly translated): “That was not at all as terrible as I expected!”

This is a tiny example of how things can be turned around in rebuilding a future audience and in maintaining a great tradition. This is one more young person for whom the beautiful world of classical music has possibly been opened, despite the negative preconceptions that surround him and many others.  The point is that Germans have recognized that the process of whetting an appetite for classical music must begin early and may be best accomplished with family participation. Their systematic and broad commitment to reaching children is exemplary and merits our attention.

And what happens when those children are in their twenties and actually want to go to concerts but can’t afford to? Two striking examples I have encountered in as many months have suggested to me that we can also do better on that count.

At La Scala in Milan, I conducted ten performances of Berlioz’ Roméo et Juliette (turned into an opera/ballet), the first of which was part of a series called “Preview.”  The theater was sold out (sold out!), exclusively to an audience under thirty years old. Top age, thirty years; top price, thirty euros.  La Scala has tacitly recognized and addressed the financial challenge to our young people. It is no use only educating the young and then abandoning them when they cannot (yet) afford to buy tickets. The “Preview” model at La Scala is helping them (and us) foster a love for classical music (in this case, opera). These previews are not rarities, but a regular part of La Scala’s season. The low ticket prices are obviously highly successful in drawing an audience. In the U.S. we face the same challenges, but there is no consensus as to how to resolve them.

Once a year at LA Opera we offer two performances in Los Angeles’ Cathedral of Our Lady of the Angels. Six thousand free tickets are requested each year within hours of the announcement of their availability over the Internet.  This would seem to indicate that “ordinary” people do want to come, and will come, when they can afford to so. It is interesting to note that, though one hears so much talk about how classical music needs a way to “get the message out,” thousands of people do respond within hours when financial obstacles are removed.  This suggests that the message is out—that classical music and opera are things people believe they will enjoy, and when they can afford it, they will come to performances.

The tradition of attending Classical music concerts will have difficulty prevailing, given the many factors mitigating against it, if we don’t abandon, at least temporarily, economic models that may have satisfactorily functioned for the last half century but cannot be expected to do so any longer.

In November I returned to Madrid to conduct the Orquesta Nacional de España. Three subscription concerts were relatively well attended, given the severe economic difficulties at the moment. Given those difficulties, I was struck by the large and very enthusiastic presence of young people in the audience. The Spanish have clearly been effective in developing a young audience that, despite today’s challenges, has integrated concert-going into their lives.

It can be done, and there is hope for all of us in the future.

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Posted in A Rich Possession | 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 4th Floor of the Hilton and say hello!

_________________________________________________________________

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

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

All questions on any topic related to legal and business issues will be welcome. However, please post only general questions or hypotheticals. GG Arts Law reserves the right to alter, edit or, amend questions to focus on specific issues or to avoid names, circumstances, or any information that could be used to identify or embarrass a specific individual or organization. All questions will be posted anonymously.

__________________________________________________________________

THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

The purpose of this blog is to provide general advice and guidance, not legal advice. Please consult with an attorney familiar with your specific circumstances, facts, challenges, medications, psychiatric disorders, past-lives, karmic debt, and anything else that may impact your situation before drawing any conclusions, deciding upon a course of action, sending a nasty email, filing a lawsuit, or doing anything rash!

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

Thinking About the Future

Monday, January 9th, 2012

By Alan Gilbert

On January 4 the Philharmonic made a very important announcement: Matthew VanBesien has been named the next Executive Director of the Orchestra. I feel very positive about this choice, as I was quoted as saying, but here I want to discuss some of the thoughts that have come to my mind in the wake of the announcement.

Filling Zarin Mehta’s shoes has been a challenge for a couple of reasons. First of all, he’s a master at what he does. He’s a legend in the business, and deservedly so: there’s nobody who has existed at this level of orchestral endeavor for as long as he has and with the success he’s had. Zarin’s sense of what the New York Philharmonic is, and of what it can and should be, is full of respect for the traditions of music. His connections with guest soloists and conductors and with concert presenters around the world are epic.

We looked for someone who could step into the role that Zarin has filled who would fully respect the heritage and the venerable traditions of the New York Philharmonic and, at the same time, have the ability to carry forward into the 21st century both the New York Philharmonic and the elusive notion of what an orchestra should be. It remains to be seen what will actually happen, but the discussions that the Philharmonic’s Board, the Search Committee, the musicians, and I have had were extremely positive and extremely optimism-inducing. What we’re trying to do is nothing less than to redefine the shape, function, and role of the modern symphony orchestra.

Certain things are not going to go away. We will continue playing concerts in our home — a concert hall that, by the way, we’re going to be renovating, if not completely reconceiving. That’s going to be an enormous project on Matthew’s plate. But also up for discussion is the way we interact with our audience, beyond the traditional concert format, how we connect with our community. This very broad concept of outreach — which means going out and not expecting people to come to us — is very important to us, and I think it is something that contains an enormous amount of potential. Also, we can expand the types of concerts we give — working with mixed media, blending cultural trends and forces, collaborating with other institutions in New York City such as arts and dramatic organizations, theaters, museums, schools. There are a lot of ways in which we can expand our reach in what will hopefully be a consistent philosophical mode; not in a way that would be gratuitous and or extraneous, but which would actually be central to what we, as an orchestra, can mean.

In terms of education, there has been a clear shift. Schools are not spending as much time, energy, or resources on music education. Orchestras are trying to pick up the slack — the Philharmonic already has been very active in this area, with our School Partnership Program and other projects (http://nyphil.org/education/schools_overview.cfm) — partly because they can, and also because I think it is becoming an essential part of what an orchestra is. In a sense, everything we do is “education.” When we introduce new music to audiences, or when we try to show connections between pieces on a given program that may not be immediately evident, that’s also education. So it’s not really a stretch to expand the function of the modern symphony orchestra to increase actual educational activities. The capacity of musicians to be teachers, to be advocates for music itself, is something we’re tapping into more and more.

Matthew is very committed to all these things and is interested in thinking out of the box, much as I hope to do.

(For more information on Alan Gilbert and the New York Philharmonic, visit nyphil.org.)

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