Posts Tagged ‘Licensing’

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WE ALL NEED TO STREAM SOMETIME

Monday, June 15th, 2020

(Understanding Streaming Rights)

As we all try to figure out how to cobble the performing arts world together, more and more venues, presenters, and artists are turning to streaming–live streams, virtual performances, and showing archived footage of previously recorded concerts.

For now, these efforts are critical as a means to stay connected with audiences. Soon, these will need to be turned into additional revenue streams as well. Regardless, this is unchartered territory for many, particularly with regard to the rights and licenses necessary to stream performances and recordings.

But first things, first: We need to clear up a few definitions.

“Streaming” is where you upload a recording to a source or platform so that it can be heard or watched by an audience over the Internet. While this can be done through your own website or server, most recordings and videos are viewed through a third party platform such as YouTube, Instagram, FaceBook, Vimeo, SnapChat, Netflix, YouTube, Hulu, Pandora, Spotify, TikTok, RiffRaff, Taffeta, Titipu, KoKo, PishTush, PoohBah, and YumYum, among others.

Don’t be confused by the terms “Streaming” and “Live Streaming.” They mean the same thing. Remember, there is no standard terminology in the performing arts industry. Whether you intend to stream an archival recording of a performance, create and stream a new recording made in a studio or venue, broadcast a live concert to an audience who can watch it in real time as it is taking place, make a recording available for free, or make a recording available on-demand for a fee, these are just various types of “streaming.”

The key distinction is that a streamed recording remains at all times on the platform for the audience to watch only through the platform and cannot be downloaded. Downloading is when you are able to take a recording from the Internet and copy it from the platform to your own computer or phone. Apple I-Tunes, for example, is a downloading platform whereas Apple Music is a streaming platform. Streaming is like listening to the radio in your car. Downloading is like buying the CD. Similarly, Amazon Prime gives you the option of renting a movie to watch for a fixed period of time or buying a copy of a movie to download and watch on your own devices.

Whether using an archival recording or streaming a live concert, Obtaining the necessary rights and licenses to stream a concert or performance essentially involves the same considerations and questions you would ask (hopefully) with regard to presenting any live performance:

  • Do you need a license from the owner of the music to perform the music? 
  • Do you need a license from the owner of the music to use the music as part of a musical, dance performance, or opera?
  • Do you need a license from the owner of the music to make re-orchestrations, new arrangements or significant adaptations?
  • Do you need a license from the owner of the music to record and stream the performance of the music?    
  • Do you need a license from the performers to record and stream their performance?
  • Do you need a license from the owner of the recording of the music to stream the recording?

Essentially, to get permission to record and stream a performance, you will potentially need licenses from three different parties:

  1. The Performer(s)
  2. The owner of the music
  3. The owner of the recording

Licenses From The Performer(s)

If your intent is to stream an archival recording, you will need to ensure that you had the right to make an archival recording in the first place and what you are allowed to do with it. This should have been spelled out in the initial engagement contract for the performance. If not, you will need to go back to the artist(s) and request permission to stream the existing recording.

If you are seeking to create a new recording or record a live concert for streaming, then among the other engagement details you will need to request permission from the artist(s) to record and stream the performance. Certain artists, particularly orchestras, may have union contracts or other restrictions (such as exclusive recording agreements with labels) that will not permit any recordings or streaming without additional licenses and fees.

Even if you get all of the necessary licenses from the artist(s) to record and stream their performance, you are only a third done. Remember, unless an artist is recording her own music, artists do not control the music they perform. So, just because an artist gives you the right to make and stream an archival recording of the artist or the right to record and stream a live performance, you will still need to obtain permission from the owner of the music to perform, record, and stream. 

Licenses From The Owner of The Music

Any time you intend to perform music at a live concert, you need permission to perform it (what I like to call “stand and sing.”) Except for instances of music being used as part of a musical, dance, or opera production, such permissions are most often arranged by purchasing performance licenses through Performing Rights Organizations (PROs) such as ASCAP, BMI, SESAC, GRM, etc., when you purchase a performance license from a PRO, the terms of the license will govern what you can and cannot do with the music as part of the “performance.” Like everything else, nothing is standard. Everything depends on the type and terms of the license you purchased. These will differ from nightclubs to non-profit venues to schools to for-profit theatres, etc, so you will need to read your specific license to see what you can and cannot do and what additional rights you might need. However, here are some generalizations:

  • More often than not, streaming is covered in a performance license as long as the end user is viewing the recording on a platform licensed by the PRO, such as YouTube, Instagram, FaceBook, Vimeo, SnapChat or TikTok. Embedded, proprietary players owned by these licensed platforms (YouTube being the most common example) and embedded into the presenter website are also covered.
  • More often than not, streaming from the websites of colleges and universities (.edu) are also usually covered by the performance license.  
  • More often than not, streaming directly from the website of an artist, venue, or presenter is NOT COVERED without obtaining additional licenses. This is true of live streaming as well as archived videos of past performances. So, when in doubt, always opt to stream through a platform already licensed by the PRO.
  • Downloadable recordings are NOT COVERED. These rights need to be obtained directly from the owners or publishers of the music. Most PRO’s cannot issue such rights.
  • Performance licenses also do not cover the performance of music as part of a musical, dance performance, or opera. Those licenses must be obtained directly from the owner or publisher of the music. Most PROs cannot issue such rights.
  • Most performance licenses do not include the right to make re-orchestrations, new arrangements, or significant adaptations of the music. Those licenses must be obtained directly from the owner or publisher of the music. Most PROs cannot issue such rights.

Licenses From The Owner of The Recording

An oft overlooked concept is that recordings are separately, copyrightable creations. When a recording is made, it is owned by the person or organization that made, edited, and mastered the recording and NOT by the owner of the music which was recorded and NOT by the performer who performed it. (Believe me, this comes as quite a shock to composers and performers who presume that if they are on the recording then it’s also theirs to use.)  So, once you get all of the necessary rights and licenses to record and stream a performance, you will also need to make sure that you obtain permission from the person who recorded it—even if it is a volunteer or a member of your staff. In fact, especially if it is a volunteer. Short of children performing with fire and audience sitting on broken glass, volunteers are often the largest source of grief. (Ok, there’s also the board to consider, but I digress.)

A few final thoughts:

Everyone needs to obtain rights and licenses regardless of whether or not you charge a fee to watch the streaming concert.

  1. If you don’t know what rights you already have or what rights you need, always reach out to the performer(s), the owner of the music, and the owner of the recording. Never assume or just hope that someone else with do the “right thing.” The “right thing” is an extraordinarily subjective concept.
  1. Anyone can charge whatever they want to issue a license, or not charge anything at all, or refuse to issue a license for any reason. Everything is subject to negotiation as influenced by each person’s degree of largesse, munificence, guilt, desperation, fear, uncertainty, pride, greed, wrath, envy, lust, gluttony, and sloth.
  1. There are no special Covid-19 exceptions.
  1. There are no special non-profit or school exceptions.
  1. Everyone is screwed right now. No one is more or less screwed than anyone else. Everyone is going to need to compromise if we are going to survive this.

For additional information and resources on this and other legal, project management, and business issues for the performing arts, as well as to sign up for our newsletters and follow us on social media visit ggartslaw.com

THE OFFICIAL LEGALESE:

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, Law and Disorder: Performing Arts Division, Licensing, Music Rights, Uncategorized | Comments Closed

International Touring: A Report From The Front Lines

Thursday, November 19th, 2015

By Brian Taylor Goldstein, Esq.

As the U.S. Legal Advisor to the International Artist Managers’ Association (IAMA), I’ve been asked to prepare an update on a variety of current issues involving international touring at the next membership meeting in London on November 27, 2015. Not only do I adore IAMA, but as this would provide a lovely excuse for my wife and I to avoid having to spend Thanksgiving with either of our families, I was more than happy to agree. Robyn Guilliams and prepared this report, I thought I would share it with all of you…

Visa Stercus

1.  USCIS is presently taking a minimum of 8 – 10 weeks to process visa petitions at both the Vermont and California Service Centers. This means that, as of today, if you need to have an artist enter the U.S. any earlier than March 2016, you need to pay the additional $1225 for premium processing. (The official visa processing times that USCIS posts on its website have always been purely propaganda and should always be disregarded as such.)

    • As a reminder, visa petitions can be filed up to one year in advance of the performance date.

2.  For those of you who have Canadian musicians eligible for P-2 visas, we are receiving reports that Canadian AFM is experiencing a backlog in preparing filing petitions. This is in addition to the current USCIS processing time of 8 – 10 weeks.

3.  I’ve said this before, but the message not getting through, so its worth repeating. ARTISTS CANNOT DO ANYTHING IN THE U.S. ON A TOURIST VISA OR ESTA (Visa waiver) STATUS!!  Please stop listening to the colleges, universities, and festivals that tell you otherwise. They have nothing to lose other than perhaps having to find a replacement artist. On the other hand, I have recently learned of two artists—one from Germany and the other from Spain—who have had their ESTA status permanently revoked because they tried to enter the U.S. in ESTA status to perform in the U.S. Both artists had entered multiple times in the past and one were merely entering to “perform” a master class.

    •  It doesn’t matter whether an artist is paid or unpaid, whether the concert is free, or whether the performance is for educational purposes. They must have an appropriate visa—most often an O or P visa. United States Immigration Officers are taking this very seriously.

4.  In preparing visa petitions, please start collecting and providing the evidence USCIS wants as opposed to giving them what you have lying around in your press package. The days of being able to supply a bio and a few press articles are long gone and we are seeing more and more visa denials and delays because of this.

    •  I recently, and with much regret and sadness, had to advise a client to re-cast a role because the artist’s European management was simply refusing to cooperate in our efforts to obtain a visa for the artist. (In case that manager is reading this…no, USCIS will not “just google the artist to find out how famous he is!”)

Tax Stercus

1.  For those of you waiting to receive a refund check from the Internal Revenue Service (IRS) for a non-U.S. artist who has had 30% withheld from their gross engagements fees and are due a tax refund, please be advised: the check is NOT in the mail, and won’t be for the foreseeable future. The IRS has added an extra layer of scrutiny to nonresident tax returns involving refunds. Aside from the usual 2 to 3 month processing time, there is a second review to be sure that everything on the 1042-S form is accurate and complete.  If the IRS senses ANYTHING off, the taxpayer will receive a letter asking for more info. To be fair, the IRS has announced that it will be paying interest on all overdue refund checks. To be practical, it doesn’t matter how much interest they offer to pay if, in fact, they never issue the refund.

    • Bottom Line: There is currently a very good chance that if 30% is withheld from an artist’s engagement fee, the artist will not get that money back…or, at least, not for the foreseeable future. Please plan cash flow accordingly.

2.  A Central Withholding Agreement (CWA) is still the best way of avoiding or reducing the mandatory 30% withholding required from all engagement fees for non-U.S. artists. To be eligible for a CWA, among other requirements, an artist must have filed a U.S. tax return for each prior year in which they have ever performed in the U.S.– even where no tax was owned. If an artist has not filed past U.S. tax returns, he or she will be required to file them as a prerequisite to obtaining a CWA. Unfortunately, we are seeing a sharp increase in the instances where filing such past tax returns is triggering an IRS audit in which they are requesting documents and records from the artist’s world-wide income.

    • In this one particular area, the IRS has displayed a remarkable degree of efficiency in identifying artists who have simultaneously made the least amount of money and kept the least amount of records to prove it.

3.  Obtaining Social Security Numbers (SSNs) and Individual Tax Payer Identification Numbers (ITINs) continue to be a challenge. While SSSs are not any easier for an artist to obtain, they have not become harder. ITINs, on the other hand, have become increasingly difficult, if not impossible, to get. Despite both staffing and budget cutbacks, the IRS has been requested to scrutinize ITIN requests more closely—particularly with regard to proof of identity. For most non-US residents, the most obvious and best proof of identity is a copy of their passport. However, the IRS lacks the resources and training to evaluate how to tell legitimate passports from forged ones. As a result, the IRS is now only accepting copies of passports that have been certified by the actual agency that issued the passport. However, even when this is provided, we are seeing the IRS send notices requesting that the actual, physical passport be sent to them instead. DO NOT DO THIS! You will never see that passport again!

    • There IS one option for some Europeans:  There are IRS offices located in the U.S. Consulates in Paris and London. One can go to these offices and request an ITIN in person (with an original passport, which the IRS will review and return on the spot.)  HOWEVER – one can obtain an ITIN only if one has an “immediate tax need”, such as filing a return. So, if requesting an ITIN in the Paris or London Consulates, one must also bring a completed tax return in hand, ready to file.

4.  We are seeing a large number of U.S. presenters–especially those based at colleges and universities—insisting that non-U.S. artists are legally required to have either a SSN or ITIN in order to perform or get paid in the U.S. Please be advised: There is no such law! While such numbers may make book keeping and accounting easier for the presenter, there is no law that requires an artist to have either one. Not only are SSNs and ITINs not proof of work authorization, but as we addressed above, many artists will be unable to get them in advance—if ever.

5.  Canada requires 15% withholding for gross engagement fees of non-Canadian performers performing there (similar to the 30% withholding requirement in the U,S.) Canada Revenue allows performers to file a waiver/reduction request to reduce/waive the withholding (an R-105 request). On their website, Canada Revenue indicates that the deadline for filing such a request is 30 days prior to the first payment due.  However, it’s taking them MUCH longer to process the requests. So, we are recommending that you file your request with them AT LEAST 60 days prior, or earlier, if possible.

General Travel Stercus 

1.  There is nothing new to report with regard to the ban on bringing musical instruments into the U.S. that contain ivory or other protected materials. United States Customs and Border Patrol isn’t strictly enforcing this with any degree of regularity. However, if any orchestras are touring and don’t want to take the risk, we are recommending that they contact Heather Noonan (hnoonan@americanorchestras.org) at the League of American Orchestras (http://americanorchestras.org) who is among the leading and most effective legislative arts advocates in the U.S. and is happy to talk to them about the “Instrument Passport” process.

    • The League and others are continuing to lobby for specific amendments, including exemptions to the rules for “personal effects” (which would include carry-on musical instruments).

2.  There has been some recent concern about Amtrak, the U.S.’s ersatz rail service, implementing a new policy requiring additional seats to be purchased for oversize musical instruments which cannot fit into overhead compartments. To date, this policy has been posted, but not enforced. We are recommending that artists and ensembles that intend to use Amtrak to travel to engagements within the U.S. check with an Amtrak representative in advance of the tour…and then be prepared for whatever they are told in advance to then be either incorrect or disputed by Amtrak at the actual time of travel.

Other Stercus

1.  When negotiating fees for U.S. engagements, please remember to specify the currency in which the artist is to be paid, including exactly how and when the exchange rate is to be calculated. We are seeing an increased number of misunderstandings over this point.

    • At the same time, use this as an opportunity to clarify any other costs or deductions (such as taxes, visas costs, hotel, travel, etc.) which either are or are not to be included as part of the engagement fee.

2.  Too many people are still relying on general, vague, boilerplate, or unspecific contractual language to take the place of actual negotiation. Do not rely on the misguided belief that there are standard legal terms and procedures that magically govern engagements and bookings when words fail. If you want something, or don’t want something, say something—or, preferably, write it down.

3.  When dealing with performances of new works or contemporary music, bear in mind that licensing laws differ. What’s in the public domain in Europe may not be in the United States. Even a re-arrangement or re-orchestration may not be permissible in certain countries.

__________________________________________________________________

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 Artist Management, Arts Management, Law and Disorder: Performing Arts Division, Licensing, Music Rights, Taxes, Touring, Visas | Comments Closed

Don’t Be Shy About BMI

Wednesday, March 25th, 2015

By Brian Taylor Goldstein, Esq.

Dear Law and Disorder:

Hypothetical: A theatrical production company would like to produce a tribute musical production to a songwriter using only the songwriter’s music being performed by the cast of the production. The production would be held at a community theater which is not licensed by ASCAP or any licensing authority. The production company is unsure of its legal standing in carrying out this this production, and would like some general guidance. Where could they go to determine the requirements, if any.

If any? There are always requirements. I don’t know anything that doesn’t require something in return.

The production company has no legal standing to carry out this production without first obtaining the necessary licenses. If the songs are being performed as part of a “concert” style performance—that is, being sung without props or costumes and not as part of any plot, story, or narrative—then the producer would merely need to get a performance license from whichever one of the three major performance license agencies the songwriter belongs to: ASCAP, BMI, or SESAC. If the songwriter doesn’t belong to one of these (which is unlikely, but possible), then the licenses would need to be obtained from the songwriter directly.

It doesn’t matter whether or not the performance is being held at a community theater or whether or not the community theater holds a license with ASCAP, BMI, or SESAC. Performance licenses must still be obtained and either you (hypothetically, of course) or the theater must obtain them. There is no legal requirement that the venue be the one to obtain performance licenses. While its probably easier for the venue to obtain the licenses, it is the responsibility of all of the parties involved in a production—from the producer and performers to the venues and agents—to ensure that someone obtains the necessary licenses. Otherwise, everyone will be held responsible and, hypothetically, you don’t want that. Also, if this is a production which the production company envisions producing elsewhere, then it probably makes more sense for the production company to get the licenses itself.

If the production company wants to obtain the licenses, it would simply contact ASCAP, BMI, or SESEC directly. However, there are a few additional issues that could quickly change the simple to the sublimely complex:

1) If what you are “hypothetically” envisioning is not so much a concert “tribute”, but, rather, a “juke box musical” where the songs of one composer are used as the score of an actual musical drama or to tell a story (ie: Mamma Mia, Jersey Boys or Beautiful), then neither ASCAP, BMI or SESAC can help you. You will need dramatic licenses, not performance licenses. Dramatic licenses must be obtained directly from the songwriter or the songwriter’s publisher. If this is the case, you should be prepared for a resounding and thunderous “no.”

2) Even if you are planning a more traditional concert tribute such as Side-by-Side-by-Sondheim or An Evening of Andrew Lloyd Webber, many musical theater and other composers have restrictions preventing more than a specific number of their works from being performed as part of the same concert without obtaining additional rights directly from the publisher.

Nevertheless, contacting ASCAP, BMI and/or SESAC is always the best place to start on any licensing journey. Don’t be shy. They want to have their artists’ works get performed as much as you want to perform them. However, they also want to make sure their artists get paid, just like you do. Assuming, of course, that the production company expects to sell tickets, if any.

__________________________________________________________________

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.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, Contracts, Copyrights, Law and Disorder: Performing Arts Division, Liability, Licensing, Music Rights, Presenters, Publishing, Venues | Comments Closed

Licensing Video For A Tribute Show

Thursday, June 5th, 2014

By Brian Taylor Goldstein, Esq.   

Dear Law and Disorder:

We are in production of a new “Tribute” show with a video component.  We are grappling with what type of media is public domain or where public domain photos or video can be found.  None of the video production companies seem to have a definitive answer.  I have been searching for pertinent federal statute that address this issue.  Any thoughts? 

There’s an old joke where a man encounters another man frantically searching for something in the middle of the street. The first man asks: “What are you looking for?” The second man replies: “My keys. I lost them in the dark alley over there.” “Then why are you looking for them out in the street?” “Because the light is better out here!” Ba da boom.

Like the man in the street, you’re looking for the right thing, but in the wrong place. There is no federal statute that addresses your issue…at least, not directly. If you’re producing a “tribute” show with a video component, then any copyrighted material you want to include in your video will need to be licensed. Any material that is not protected by copyright is in the public domain and is free to use. The question you need to ask then is: how do you tell if material is still protected by copyright? The federal copyright statute will give you a formula, but not the answer. The answer depends on when the copyrighted material was first published. Most often, copyright lasts for the life of the owner plus 70 years. But who is the owner?

The challenge with videos is that you are often dealing with multiple copyrights with multiple owners. Let’s say, for example, that you want to include a video of the original artist (since this is a “tribute” show) performing at a concert recorded in the 1960s. There is a copyright in the video itself as well as a copyright in the music being performed on the video. So, even if you were to determine that the video is in the public domain, the music being performed may still be protected by copyright—or vice versa. We once had an orchestra contact us about creating a DVD to celebrate their 50th anniversary using old video clips from past concerts. Not only did we (well, to be fair, Robyn!) have to obtain licenses from publishers of certain contemporary works (as well as arrangements of older works), but we needed to obtain licenses from some of the original videographers who still owned the rights to the video footage. (Side note: ALWAYS take the time to get a written license or assignment from anyone whom you hire to photograph or videotape your or your performance—even volunteers!)

Photographs are similar. In every photograph are two sets of rights: the rights to the photograph itself (ie: the negative) and the person being photographed. The photograph itself may be owned by the photographer, but the photographer may or may not own or control the rights to the image or person in the photograph. While a person does not have a “copyright” in his or her own image, they do own rights of publicity, rights of endorsement, etc. So, for example, if you wanted to use a photograph of the famous artist you are paying “tribute” to, you would need to determine whether or not the photograph itself was in the public domain and whether or not you required any publicity or endorsement rights to use the image of the artist. (To make matters even worse, publicity and endorsement rights are controlled by state, not federal law, and can vary from state to state.)

Determining whether or not a photograph is the public domain is just like determining whether or not a video is in the public domain: when was it made? Who made it? Are they dead or alive? Even if the photograph or video is in the public domain, you still need to do a separate analysis of the contents or images on the photograph or video.

While we’re on the topic of “tribute” shows, its also worth mentioning that even if you are lucky enough to find all the videos and photographs you want, as well as the contents thereof, in the public domain, you still need to be wary of using the name and image of the original artist in the marketing and publicity materials of your tribute show. Things like names and even visual elements such as distinctive costumes or a physical characteristic of the original artist can trigger trademark issues that are entirely different from copyright and other rights. The good news is that with enough advance planning and thoughtful analysis, its entirely possible to create the type of video component you want. Many artists and producers successfully do this all the time, often with the blessing of the original artist.

__________________________________________________________________

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

Hypothetically Speaking About Liability

Thursday, May 1st, 2014

By Brian Taylor Goldstein, Esq.

Dear Law and Disorder:

If a hypothetical rental company is hired, either by a venue or by the client using a venue, to supply the sound and/or video system for a corporate, non-profit or association event; and this hypothetical rental company is asked to provide “top 40” music to be used during “walk in”, dinner, award winner walks up to the stage, etc. where in the liability chain would this rental company be? What if the end client hands the hypothetical rental company a stack of CD’s or worse, a drive full of MP3’s and requests/insists that they be played? If “ultimately” the owner of the venue is responsible of verifying that proper licensing has been obtained but “everyone involved” is at risk of being named in a lawsuit if proper licensing has not been obtained, how does the vendor in the middle point to either the venue or the end client as the responsible parties?  Is it enough to spell out specific language in the rental agreement? <sarcasm> I know that you are, no doubt, shocked to hear that this scenario might be possible.  However, IF it were to become “common practice” among rental companies to happily play whatever they and/or their client wanted without so much as a hesitation, it would be difficult for any hypothetical rental company to compete if they were the one’s constantly harping on usage rights with their clients. </sarcasm> 

In truth, I’m less shocked by the possibility of the scenario you propose than astonished—nay, agog—by your desire to be proactive about it—even hypothetically. It’s a welcome reprieve from the “let’s not call GG Arts Law until we’ve actually been sued by Disney” approach we are more familiar with.

Merely being named in a lawsuit doesn’t mean that you will necessarily be found responsible—or, as lawyers like to say “liable.” Liability requires that you had a duty to do, or not do, something which you did or did not do. In your hypothetical, its not entirely accurate to say that “ultimately the owner of the venue is responsible for verifying that the proper licensing has been obtained.” Rather, if licensing is required, everyone involved in the performance has a duty to make sure that the proper licenses are obtained—not just the owner of the venue, but the hypothetical rental company and the rental company’s client. Its more accurate to say that, while, ultimately, the owner of the venue is more likely to get sued, everyone involved could be held responsible.

However, you are correct that the hypothetical rental company can put language in its rental agreement that says that whomever is hiring the company (either the venue itself or the person renting the venue, or both) agrees to obtain all necessary licenses and, in the event the rental company is sued and found to be liable for copyright infringement, will cover all of its legal costs and expenses, as well as any damages it might be ordered to pay. The technical term for such a clause is “indemnification and hold harmless”, but there’s no need to use magic legal terms so long as the meaning is clear. While having such a clause in its rental agreement will neither protect the hypothetical rental company from getting sued nor protect it from being liable, it will give the company a contractual basis to turn to the party that signed the rental agreement and say “you agreed to take care of this problem. Fix it!”

Even with an indemnification and hold harmless clause in its pocket, whether or not the hypothetical rental company can happily play whatever it and/or its hypothetical client wanted without so much as a hesitation really depends on the venue where the company has been hired to provide services and where such venue lies on what I call the Risk-O-Meter.  On the low end of the meter lies most for-profit venues (hotels, rental halls, restaurants, conference centers, etc) which more often than not will have obtained the necessary blanket licenses from the major performance rights organizations (ASCAP, BMI and SESAC) to permit that stack of CD’s or a drive full of MP3’s to be played. So, no worries. On the high end you will find the non-profit venues, schools, community centers, and social halls which either don’t know they are supposed to get performance licenses or incorrectly believe that because they are non-profit they are also non-commercial and are exempt from the statutes, rules, laws, and other social orders by which the rest of us must abide. (While not all commercial venues are non-profit, almost all non-profit venues are also commercial.) Your need to harp on usage rights is directly proportionate to where you lie on the Risk-O-Meter—hypothetically speaking, of course.

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

Licensing May Not Be Music To Your Ears

Wednesday, August 7th, 2013

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

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

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!

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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 Arts Management, Copyrights, Law and Disorder: Performing Arts Division, Licensing, Music Rights, Non-Profits, Presenters, Publishing, 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.

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

Can They Dance Away With My Copyright?

Tuesday, October 23rd, 2012

By Brian Taylor Goldstein, Esq.

I own the video footage of a performance by a dance company. Recently, I learned that another choreographer purchased a license from the dance company to recreate and perform the same work. However, they used a copy of my video to help in recreating the choreography. In other words, they copied the performance which was on my video, but no one asked my permission. Aren’t I entitled to a royalty or a fee? How are the choreography and the video separable?  The only way they could get the choreography was through my video.”

Copyright protects original, creative works that are fixed in some tangible medium. For example, when a playwright creates a script, he or she obtains a copyright in the play. If someone else later videotapes a performance of the play, the videographer may obtain a copyright in the video and, with it, the right to control who can make copies of the video or broadcast the video or sell the video. However, the playwright still owns all rights to the play itself. If another theater wants to produce the play, they only need to seek permission of the playwright–even if they use the video as a reference, so long as they don’t make a “physical” copy of the video itself. It’s the same with choreography. Choreographic works become protected by copyright when either the chorography is written down in choreographic notes or videotaped. However, the videotape or the choreography is a separate copyright from the choreography itself.

In your case, the fact that the other company may have used your video to “learn” and remount the choreography doesn’t mean they necessarily copied your video. You own the video footage. That’s your copyright and no one can make a physical copy of the video without your permission. However, the original dance company and/or the choreographer who created the work own the performance rights.

Of course, what I have given you is a copyright analysis. The real question I have is: what were the terms of your agreement with the dance company when you made the video? Did you even have a contract? Issues such as performance rights, licensing, and permissions—as well as many others, including credit, ownership, control, and exclusivity—are all issues that can be agreed upon in a contract. Not have a contract, and relying solely on copyright laws and statutes, is like dying without a will. If you wanted to receive a royalty every time the work was performed, you could have asked for that, just as the dance company could have asked for a royalty every time you sold or licensed a copy of the video. When it comes to avoiding miscommunications and disappointments, nothing beats a piece of paper…correction, nothing beats a piece of paper with lots of details!

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

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

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

__________________________________________________________________

THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

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

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

Can Newspapers Charge To Quote Reviews??

Wednesday, August 8th, 2012

By Brian Taylor Goldstein

Dear Law & Disorder:

I recently came across the website of an artist management agency in Europe where they had posted the following: “The press review is temporarily not available. German newspapers Frankfurter Allgemeine Zeitung and Süddeutsche Zeitung recently started to pursue institutions and artists using texts (press reviews, interviews, commentaries etc.) published by those newspapers on their websites or in any other commercial context without having paid for them. We have been advised to remove all press quotations from our website as the same phenomenon seems to happen in other countries like Switzerland and Austria.” Is this a copyright trend that will spread to other European countries and the USA? Will agents, and artists have to start paying for the use of (press reviews, interviews, commentaries) used to promote an artists career? Also, if an American agency has press reviews, interviews, commentaries from Europeans newspapers on their websites, such as from the Frankfurter Allgemeine Zeitung and Süddeutsche Zeitung, will these agencies be liable for payment of the use for this information, as well, as it is being used in a commercial context? (Thank you for your column on Musical America, and I also thank Ms. Challener for her leadership in including such information in the weekly email Musical America updates.)

Newspapers and magazines have always owned the exclusive rights to the articles, reviews, editorials, and interviews they publish. Just like you can’t make copies of sheet music, CDs, books, and other copyrighted materials, you cannot make copies of articles and reviews and re-post them without the owner’s permission. Even if you are not “re-selling” an article or review, anything that is used to promote, advertise, or sell a product or service (ie: an artist!) is a “commercial” use.” While “quoting” or “excerpting” a positive review is most often considered a limited “fair use”, making copies of the entire article or review is not. While it should go without saying, you also cannot “edit” or revise articles and reviews in an effort to make a bad review sound more positive. (That’s not only copyright infringement, but violates a number of other laws as well!)

The website you encountered was in response to certain German newspapers, in particular, who began making significant efforts to require anyone who wanted to copy or quote their articles or reviews to pay a licensing fee. In the United States, for the most part, most newspapers and magazines have not actively pursued agents or managers who have quoted articles and reviews on their websites to promote their artists. However, I am aware of managers and agents who have been contacted by certain publications where entire articles have been copied and made available for download. In such cases, the publication has demanded that the copy either be licensed or removed. I also know of agents and managers who have posted unlicensed images on their websites and then been contacted by the photographers demanding licensing fees.

As for the ability of an American agent to quote or copy articles from the Frankfurter Allgemeine Zeitung and Süddeutsche Zeitung, under the applicable international copyright treaties, they could require American agents to pay as well. While I don’t necessarily see this becoming a trend among US publications, its certainly worthwhile to reflect that anytime an agent, manager, or presenter uses images, articles, videos, other materials to promote an artist or performance, there are copyright and licensing considerations that need to be taken into consideration.

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

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

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

__________________________________________________________________

THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

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

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

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