Who’s Responsible For Performance Licenses?
By Brian Taylor Goldstein, Esq. Dear Law and Disorder: In all of my artist’s booking contracts, the presenters are required to obtain ASCAP, BMI and SESAC licenses. I recently received a contract back from a venue in which they crossed out that language. They told me that their policy is not to get these licenses and that the artist is responsible for obtaining them. It was my understanding that it was always the venue’s or presenter’s responsibility to obtain the performance licenses from ASCAP, BMI, and SESAC. Am I wrong? You’re not wrong, but you’re not entirely correct either. The truth is that it is the legal responsibility of all parties to make sure that the proper licenses have been obtained for a performance. Which party actually obtains them and who bears the costs is a matter for negotiation. Whether it’s a festival, a school, a nightclub, or a large performing arts center, non-profit or for-profit, it’s the legal responsibility of the owner/operator of a performance space/venue to ensure that the necessary rights and licenses have been obtained with respect to all copyrighted music which is performed at that venue. (Actually, this legal responsibility is not limited to performance rights, but extends to dramatic rights, synchronization rights, broadcast rights, and all other required rights and licenses which pertain to music, images, trademarks, recordings, images, or other protected rights or materials which are used as part of the performance.) However, it’s equally the legal responsibility of the artist, and in some cases, the producer and promoter, to ensure that they have all of the required rights and licenses, including performance licenses from ASCAP, BMI and SESAC. Why? Because if an unlicensed song is performed at a venue, then the US Copyright Act allows all the parties involved in the performance—the artist as well as the venue/presenter, the producer, the promoter, and anyone else involved in the performance—to be sued by the publisher or copyright owner. Stealing a song is like robbing a bank: the entire gang is arrested; regardless of who broke open the safe, who drove the get away car, or who simply served as look out, they all participated in the robbery. I am familiar with many venues which do not want to be burdened with the perceived cost and difficulty of obtaining performance licenses (which, depending upon the specific circumstances, may be neither costly nor particularly difficult), refuse to do so, and insist on the artist obtaining the licenses. However, in my opinion, for reasons I have written about in earlier blogs, this is a foolish policy. In practice, it’s simple easier for venues and presenters to obtain ASCAP, BMI and SESAC licenses than the artist. The venue can purchase a blanket license from each organization that permits all of the music in their catalogs to be performed by any artist at the venue during the license period. These licenses can cover an entire year or just a specific festival or event, and are priced based on numerous factors, including number of performances, ticket prices, size of the venue, etc. With the blanket licenses in place, the artist simply needs to show up. If a venue or presenter prefers not to obtain such licenses, then the artist or performer can certainly do so themselves. However, if no one obtains the licenses, then everyone is liable. Quite simply, whether the venue/presenter requires the artist to obtain the performance licenses or the artist insists that the venue/presenter obtains the performance licenses, passing the responsibility on to another party will not relieve either party from ultimate responsibility if the other party fails to do so. In other words, there is no contract, release, or any other document which will protect you from liability should the necessary licenses not be obtained. This is why, among other reasons, if I operated a venue, I would much rather rely on myself to obtain the licenses than depend upon another party to do so. In your case, if the venue refuses to obtain the ASCAP, BMI or SESAC licenses, then you and your artist have two options: either the artist agrees to obtain the licenses or the artist refuses to perform. Electing 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 is not an option; 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. _________________________________________________________________ “Law and Disorder: Performing Arts Division” will be taking a break between July 1 – July 14. Our next post will be on July 17. _________________________________________________________________ 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!
Tags: ascap, bmi, Brian Taylor, broadcast rights, contract, Contracts, copyright, Festival, Goldstein, Liable, music, necessary licenses, negotiation, Non-Profits, owner operator, performance license, performance rights, performing arts center, presenter, promoter, proper licenses, sesac, synchronization rights, venue