Whose Rights Are They Anyway?
by Edna Landau
I was fortunate to have as a guest lecturer in my class at the Colburn School earlier this week the noted entertainment lawyer, Don Franzen. He gave a wonderful presentation entitled “Overview of Entertainment Law for Musicians,” which assisted me greatly in answering the following questions.
Dear Edna:
I am a flutist and am interested in producing my own CD. I am wondering if there are legal issues that I need to address as I start this process. Do I need rights to record works for sale? From whom would I get them? Some of the works are older (J.S. Bach), some newer (Ravel, Shostakovich), and some very new. I’m guessing that the process might be different for each. —Flutist
Dear Flutist:
Your guess is excellent and correct! According to copyright law, you are required to pay a royalty to a composer whose music is not in the public domain (i.e., it is still protected by copyright) if you record their music. You are free and clear in the case of J.S. Bach but in the case of Ravel, some music could still be under copyright protection, depending on when it was written. The music of Shostakovich and younger composers is definitely not in the public domain. In order to record it, you must obtain a mechanical license. You can accomplish this quite easily through the Harry Fox Agency (www.harryfox.com). Note that the procedure will differ according to how many units you intend to produce. It also bears mentioning that this procedure would apply even if you intend to distribute the recordings for free. You can find more detailed and helpful information about this on the Harry Fox Agency website and in Angela Myles Beeching’s excellent book Beyond Talent. (See the section entitled “Licensing Issues.”) In that book she explains that if the work you are recording has never been recorded before, rather than pursuing a mechanical license, you must get permission from the composer or his/her publisher. Ms. Beeching also gives the following guidelines regarding works under copyright protection: “As of this writing, copyright protection is good for the life of the composer plus seventy years if the work was composed on or after January 1, 1978. For works composed before that date, it’s the life of the composer plus renewable terms totaling ninety-five years. If the copyright on a work has expired, it falls into the ‘public domain’ and can be recorded without a mechanical license.”
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Dear Edna:
I’ve had cases where composers have asked me via e-mail to perform their compositions and I or the concert presenter was still charged for performing a contemporary work. I do want to promote contemporary works and young composers but this is discouraging. Does it make a difference what sort of venue you perform in? —adventurous pianist
Dear adventurous pianist:
It is great that you are eager to champion young composers. Please don’t get discouraged! Undoubtedly, you recognize and understand that composers need to be paid for their works just as you expect to receive a fee for your performances. In the majority of cases, performers don’t need to concern themselves about paying rights fees because they play in halls that have blanket agreements with performing rights societies such as ASCAP and BMI and the costs are assumed by the concert presenter. The proliferation of smaller, more informal venues as popular performance spaces is a relatively recent development and those venues are not likely to have such agreements. In such a circumstance, you have a few choices: a) find out the cost in advance and ask the venue if they will take care of it b) assume the cost yourself as part of your overall expenses relating to the concert, if you are presenting it, and hopefully you will be reimbursed through ticket sales or donations c) choose not to play contemporary music on the program (a shame) d) ask the composer who wrote to you personally and seems eager for exposure if they would waive their rights in this particular instance. Hopefully, as time goes on, you will become so comfortable with this matter that you will be able to address if up front with any venue in which you are thinking of performing, and your excitement about performing new music and attracting a potentially new and young audience will inspire them to pay the performance royalty as just a part of doing business.
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Dear Edna:
I have recently been asked to appear on local television in brief interview and performance formats. Can you tell me who owns the rights to what they decide to air? If I were to want to put it on YouTube, would there be a problem? —TV novice
Dear TV novice:
Your question is an important one and it is not asked often enough. If a video recording is made of you by a second party, they retain the rights and you must request permission for further use of it. What you do own are your spoken words and therefore you could publish a transcript of what you said without cause for concern. People are amazingly casual when they upload to YouTube but in truth, the use of any performance footage should be cleared with the source of the footage including, by way of example, a presenter, venue, competition or media entity.
© Edna Landau 2011