Posts Tagged ‘orchestrations’

A Tribute To Copyright Infringement

Wednesday, September 16th, 2015

By Brian Taylor Goldstein, Esq.   

Dear Law and Disorder

Could you please advise how a copyright application would be filed for a tribute musical of deceased popular singer? The show would consist of all of his songs. Would it be better to file it as a compilation or concert? Can all the songs be included in one application? Thank you

Is this, by any chance, the long awaited musical “Indian Love Call”, a tribute to the intoxicating sounds of Slim Whitman? I heard there’s a lost studio recording somewhere featuring Slim Whitman, Tiny Tim, Axl Rose, and Celine Dion performing a cover of “Total Eclipse of the Heart.” It would make a great Act I finale.

For most musicals, a copyright registration application would include the book, music, and lyrics written by the authors. However, tribute musicals such as Mamma Mia, Jersey Boys, All Shook Up and Beautiful, which are also known as “jukebox” musicals, are different in that they typically feature works which has been previously performed and composed by others. The authors and creators of such musicals must license all the music from the original composer or composers. This gives them the rights to use the music and lyrics in the musical, and usually to record a cast album, but gives the creators of the musical no ownership rights in the individual works themselves. You cannot claim copyright ownership, or file a copyright registration, with regard to any material that is not original or which you do not either own or create yourself.

Producing a tribute musical about a singer can pose a number of additional challenges in that, unless the singer also wrote the music he sang, you would need to obtain licenses from the publishers and composers of the songs the singer performed. In addition, the name, appearance, or costume of the deceased singer might be considered trademarks controlled by his estate.

If your production is a scripted musical (ie: with a story, plot and characters), as opposed to a concert, then you could claim a copyright in the book and spoken dialogue, and, perhaps, the order in which the music was performed, but not in the music and lyrics themselves. Even arrangements or orchestrations would need to be licensed from the original composers and could not be included in your copyright registration unless your license agreement permitted you to do so.  If your production is actually more of a tribute concert, then there may actually be very little you can copyright or own.

The whole point of registering a copyright is to claim ownership and stop others from copying or infringing your work. However, in the field of tribute performances, there may actually be more the publishers or composers of the music and the estate of a deceased singer can do to stop you than you can do to stop others. Remember, a “tribute” is not a magic word that means “copyright or license free.” The entertainment field is littered with the carcasses of concerts and performances that were stopped because the subject of a tribute did not like, want, or approve the gesture. In any artistic venture, before investing the time, talent, and energy it takes to create and protect your work, you first want to make sure you are not improperly using the time, talent, and energy of other artists that came before you.

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For additional information and resources on this and other GG_logo_for-facebooklegal, project management, and business issues for the performing arts, visit ggartslaw.com

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

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

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THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

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

 

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

Does Background Music Require A Dramatic License?

Thursday, April 3rd, 2014

By Brian Taylor Goldstein, Esq.   

Dear Law and Disorder:

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

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

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

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

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

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

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

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

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

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

__________________________________________________________________

THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

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

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

Gosh, That Sounds Familiar!

Thursday, February 6th, 2014

By Brian Taylor Goldstein, Esq.

Dear Law and Disorder:

A composer has been commissioned to write an ‘original’ work for a particular soloist or specific chamber ensemble. The commission agreement stipulates that the performing artist is granted exclusivity, giving the artist a certain period of time in which he/she has the sole right to perform the new work for a specified length of time. During that period, the composer has an opportunity to expand the work, making certain modifications and reconfiguring the piece for a different and larger group, such as a chamber orchestra or full orchestra. Can the new work, although based on the originally commissioned score, be considered sufficiently different in its new configuration, to be exempt from the exclusivity requirements, outlined in the original commission?

One of the cornerstones of English Common Law is the principal that: Everything which is not forbidden is allowed. However, this presumes that with such freedom comes the wisdom to discern that everything which is permitted is not necessarily advisable. For example, the fact that we are legally entitled to eat as many deep fried twinkies as we wish, does not necessarily mean that we should.

As we’ve discussed before in this blog, when a composer is commissioned to write a new work the mere act of paying for the work to be composed does not in and of itself convey anything to the commissioner—other than the pleasure and fulfillment of facilitating the act of creation. If the commissioner wants the rights to perform or record the work, or wants a specific artist to be able to perform or record the work, such rights must be specified in the commission agreement. Otherwise, all rights to the commissioned work are exclusively owned and controlled by the composer—including the rights to modify, amend, re-arrange, re-configure, re-orchestrate, and do anything else with the work the composer chooses.

If the commission agreement includes the right for a soloist or ensemble to perform the work for a certain period of time, then the commission agreement must also specify exactly what rights are being conveyed. Anything not specified, belongs to the composer. For example, does the soloist or ensemble have the exclusive right to perform the work as titled or can the composer grant permission for other artists to perform it under a different title? More importantly, how is the word “work” defined? Does the artist’s right to perform the “work” include the right to perform modifications, changes, edits, re-orchestrations, re-configurations, or other variations of the work? Can the artist make such changes herself or only with the composer’s permission? Even if the artist has no rights to such changes or variations, does the artist’s rights of exclusivity prohibit the composer from composing variations and re-orchestrations and permitting other artists and ensembles to perform them? It all depends on what is in the commission agreement.

I’m going to go out on a limb here and assume that the commission agreement in your “hypothetical” lacks any specific definition of “exclusivity.” Given the almost visceral fear in the arts industry of any contractual terms longer than a postage stamp, this is a reasonable assumption. That being the case, then the artist or ensemble only has exclusivity with regard to the work exactly as written and the composer is free to make re-orchestrations, variations, derivations, and arrangements and allow other artists to perform them. However, the fact that the composer is free to do so, does not necessarily mean that it is advisable.

It’s an equally reasonable assumption that the commissioner, rightly or wrongly, presumed that the exclusive right for the artist or ensemble to perform the work inherently included anything that sounded like the work. Admittedly, the commissioner should never have entered into a contract, much less allowed money to change hands, based on a presumption. However, taking advantage of either a misplaced presumption or even a contractual oversight or will not only serve to poison the composer’s reputation for future commissions, but add a significant debt to the composer’s karma bank. In short, my contractual analysis notwithstanding, I would strongly urge the composer to discuss his opportunity to expand the work with the artist and the commissioner before he or she starts heading for the twinkie stand.

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

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

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

__________________________________________________________________

THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

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

 

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Posted in Agents, Artist Management, Arts Management, Contracts, Copyrights, Law and Disorder: Performing Arts Division, Licensing, Music Rights, Publishing, Recordings | Comments Closed

How Does An Unauthorized Arrangement Become Grand Theft Auto?

Wednesday, August 21st, 2013

By Brian Taylor Goldstein, Esq. Dear Law and Disorder: Several years ago, our small ensemble hired a composer to arrange and re-orchestrate a work for us to play. The work itself, which is still under copyright, was originally written and arranged for a large orchestra. Recently, we made a video of our group performing the piece, put it on YouTube, and the composer’s publisher had it taken down. The publisher also told us that the composer had not authorized any arrangements or re-orchestrations. They also told us we couldn’t even perform it live anymore. Is this true? Even though we paid for the re-arrangement ourselves? Even though we have always obtained performance licenses through BMI? We have been performing this arrangement for years and the publisher has never objected before. It doesn’t seem fair. We have engagements in 2013/2014 to specifically perform this piece as part of our repertoire. When you obtain a performance license through ASCAP, BMI or SESAC, you obtain the right to perform a work as written. This includes the right to “interpret” the work to reflect your own style, artistry, expression, etc. However, it does not include the right to re-orchestrate or re-arrange a work in a manner that changes the fundamental nature of the work. For example, obtaining a performance license to perform a work written for a chamber ensemble does not give you the right to “re-arrange” it for four banjos and a zither—as tempting as that may be! The fact that you paid for the re-arrangement doesn’t give you any rights to perform it, if the re-arrangement itself was unauthorized. That’s like stealing a car, but arguing that it wasn’t a crime because you paid for the gas. (My partner, Robyn, says I never met an analogy I didn’t like…so let’s go with that.) However, on the plus side, such as it is, should the composer/publisher of the work ever decide they like your arrangement, they can’t use it without your permission either. The right to the re-arrangement belong to the owner of the re-arrangement—which could be your ensemble or the composer of the re-arrangement, depending on how your commission agreement was drafted. (Remember, the mere act of paying for something doesn’t inherently convey any rights.) The fact that you have been performing this arrangement to date without any trouble might buy you an argument—albeit a weak one—that your past performances were “implicitly” licensed. However, now that the publisher has officially told you that your arrangement is unauthorized, any future performances beyond this point would constitute copyright infringement. The line has been drawn. I know it doesn’t seem fair when a composer, author, publisher, or copyright owner refuses to give you the rights you need—especially in a situation such as yours where your arrangement obviously has artistic merit or else you wouldn’t be getting engagements to perform it. However, bear in mind that those same rules also protect your own rights. Imagine your position if someone had taken that video you posted on YouTube and, without your permission, altered it or used it in such a way that you found artistically objectionable. You would be just as adamant that they must stop. Also, bear in mind that its almost always easier (not to mention legally required) to get rights by asking and negotiating ahead of time, rather than taking what you want and then asking for forgiveness or permission after the fact. It’s the difference between borrowing and stealing a car. __________________________________________________________________ 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, Contracts, Copyrights, Law and Disorder: Performing Arts Division, Licensing, Music Rights, Publishing, Recordings | Comments Closed