Posts Tagged ‘permission’

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Don’t Toss A Banana To A Monkey If You Don’t Want The Monkey To Eat It

Wednesday, June 15th, 2016

By Brian Taylor Goldstein, Esq.   

Dear Law and Disorder:

So, it seems we have ourselves a bit of questionable “inspiration” on our hands. The inventive work of one of our roster artists uses overhead projectors, multiple screens, puppets, actors, live feed cameras, multi-channel sound design, and a live music ensemble, to create shows. And, this technique has been popping up in other artists’ shows after the copy-cat artists have either attended one of our group’s shows or participated in one of their workshops. One person in particular attended a workshop and has now created her own show where she admits that she learned her techniques at one of our workshops. How do we prevent this kind of theft of intellectual property? Do they have any recourse to put a stop to (at a minimum) what seems to be straight-up plagiarism?

So if I understand this correctly, the group is holding workshops where they teach others their techniques, but want to make sure that those techniques are never used. They have two options: (1) make everyone who attends one of their workshops sign a contract that they will immediately forget everything they are taught; or (2) if they don’t want people copying their techniques, stop teaching workshops on how to copy their techniques! That’s like tossing a banana into a cage full of monkeys and expecting them not to eat it!

While copyright infringement is illegal, plagiarism is not. Plagiarism is an academic concept most of us are taught in school and is all about citing sources and giving credit. Plagiarism is not about copying; its about giving attribution to your sources. While similar, copyright infringement means that someone has copied an artist’s specific words, images, pictures, music, or other creative material without permission to do so. (Merely giving credit or attribution is insufficient.) The important concept here is that it’s the “material” being copied, and not the ideas or concepts behind the material.

Copyright infringement requires direct copying of actual scripts, images, pictures, music, etc. Copyright does not protect or prohibit the copying of ideas or concepts. Merely being inspired by another’s work or employing similar techniques and styles is not direct copying. In fact, the copyright laws are designed to discourage copying, but encourage imitation. So, for example, if I see a dance group performing to the music of Phillip Glass while dressed as pigeons, I can create the exact same routine for my own company—provided I do not copy the specific choreography or costumes of the other group. I would have to design my own pigeon costume (and, of course, get my own dramatic license from Mr. Glass’s publisher.) Similarly, if I see a show using overhead projectors, multiple screens, puppets, actors, live feed cameras, multi-channel sound design, and a live music ensemble, I can use the except same concepts and techniques to create my own shows—especially if I was taught how to do so by the original company. I just cannot copy the specific images, sounds, designs, or scripts of the original company. In short, your group cannot be the only one on in the world the uses overhead projectors, multiple screens, puppets, actors, live feed cameras, multi-channel sound design, and a live music ensemble. Your group can be the best. It can be the first. It can be the originator. But it cannot be the “only.”

I would certainly recommend that the group register copyrights for both its scripts and videos of its productions as that would make them easier to protect in the event of an instance of direct copying. That and stop encouraging imitating by teaching others how to imitate!

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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.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 Copyrights, Law and Disorder: Performing Arts Division, Licensing | Comments Closed

Who Has To Pay The Likes of ASCAP, BMI, Etc?

Thursday, February 18th, 2016

By Brian Taylor Goldstein, Esq.   

I haven’t found an example that matches the situation of a 501(c)(3) I am familiar with. They throw a once-yearly art festival that spans a weekend (2days). They don’t charge the public any admittance. They raise money by charging fees for booth (10×10) spaces for (visual) arts vendors to sell their merchandise. They raise money for: their operating expenses, student art scholarships, member art scholarships, honoraria for program presenters at meetings, a fund for a permanent “home” for the 501c3 where they can hold meetings and store various gear for the meetings between times. They also have an open air music stage at that festival where local musicians perform. The musicians are paid under $150.00 for a 2 hour performance that includes 5 minutes each for set-up, a break, and stage clear-off. Most, but not all of the pieces performed are written by the performers. The “audience” is anyone who wanders by and stays to listen for a while. So, who, if anyone, has to pay fees to the likes of ASCAP, BMI, etc.?

It sounds like the 501(c)(3) organization in your scenario is trying to raise money for some very admirable and worthy goals: art scholarships, arts education, and even providing a place for local musicians to perform. In fact, these goals sound so worthy that I’m sure you wouldn’t object to the organization using your house for meetings or taking your car whenever they needed it to transport students to art classes, all without your permission and without paying you any fees. While you might be more than willing to donate your home or car on occasion, my suspicion is that you’d at least like to be asked first. As a general rule, the involuntary donation of other’s property without their permission—even if it’s for a really good cause—is also called “stealing.”

A musical composition—just like a home or a car—is considered property. It is no less valuable—indeed, I would argue, it is of greater value—than anything else you are required to pay for that has a physical price tag attached. A musical composition belongs to the composer who wrote it and/or the composer’s publishing company. Under U.S. Copyright Law, whoever owns a musical composition also has the absolute right to control and determine all uses of the property—this includes the right to perform the music live, record the music, play a recording of the music for the public, change the lyrics, make arrangements, or just about anything else you can think of to do with music; including the right to determine whether or not to donate the use of the composition for a worthy cause or project.

This means that any time a musical composition is performed live or a recording of the composition is played—whether it’s at a theater, concert hall, or out-door street festival (for-profit or non-profit)—“someone” needs to obtain the composer’s permission and, in most cases, pay a usage fee called a “Performance License.” ASCAP, BMI and SESAC are not roving bands of brigands waiting to pounce on unsuspecting non-profits who are merely trying to promote the arts. Rather, these organizations are trying to promote the arts too—primarily by reminding people (including other artists) not to take music for granted as a valueless commodity. ASCAP, BMI, and SESAC are organizations that represent composers, issuing performance licenses and collecting fees on their behalf.

If musicians are performing original music they composed themselves, then they can certainly agree to perform their own music for free. That can be a condition of hiring them to perform in the first place. However, if a musician or band is playing (“covering”) music composed by others, then just because the musicians agree to perform for a reduced fee, or even for free, doesn’t mean that the composers have allowed their music to be performed for free as well. A performance requires a performance license.

As for whose responsibility it is to obtain the necessary license, its legally everyone’s responsibility. If an unlicensed song is performed at a festival (even a free festival), then the U.S Copyright Act allows all the parties involved in arranging the performance—the artist as well as the venue or festival, and sometimes even the promoter, producer, or booking agent—to be liable for copyright infringement. So, while you could require the musicians to obtain their own licenses with regard to any music they are performing which they have not composed themselves, in my opinion that is a foolish policy. Why? Because most musicians will simply not bother and elect to take the risk of not getting caught. However, if they do get caught, it is the venue or festival who will be liable as well. It doesn’t matter that the festival may have required another party to obtain the license. That simply entitles the festival to sue the other party. The festival itself will remain liable to the composer.

So, in your case, while there are a number of factors that can determine the cost of obtaining performance licenses—the size of the venue, the price of tickets (or lack thereof), the number of performances, etc.–ultimately, it’s in the festival’s or organization’s best interest to ensure that the necessary permissions and licenses are obtained. While it might be tempting to proceed under the expectation that no one will get caught or the publishers and copyright owners will not sue small artists or struggling non-profits, that’s the same as robbing a bank and hoping the police won’t find you. Not to mention, in an industry where so many purport to operate under the noble purpose of promoting the value of art and artists, I can’t imagine the rationalization of stealing it for any purpose, regardless of how noble.

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

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

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

__________________________________________________________________

THE OFFICIAL DISCLAIMER:

THIS IS NOT LEGAL ADVICE!

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

 

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

How Is Copyright Infringement Like An Ugly Car?

Thursday, November 20th, 2014

By Brian Taylor Goldstein, Esq.   

Dear Law and Disorder:

What rights does a translator have? I translated a non-English script into English. All of the prior translations were very bad, which is why I did my own.  Everyone agrees mine is the best, even the original author. However, now that I am getting offers to produce my English version, the author and his publisher are insisting that, if I want to proceed, then they will own the translation and just pay me royalties for English productions using my translation. That doesn’t seem fair. The translation is all my work. I thought translators own the copyrights in their translations, so, don’t I already own it?

Robyn always tells me I never met an analogy I didn’t like, and I feel one coming on now.

Let’s assume I own a car which drives well, but is a hideous colour of besmirched baby blue (which, as it happens, was, in fact, the hideous colour of the first car I ever owned—a ’72 Buick Skylark which had belong to my grandfather, but I digress). You believe that you can re-paint my car and make it look like a Ferrari and offer to do so. Assuming I accept your offer, just because you paint my car doesn’t mean you now own the car or have any rights to drive it. I might owe you for your time and materials, but even if you make the car look better, the car itself still belongs to me. More importantly, let’s assume that I decline your offer, but you break into my garage and paint my car anyway. Even if you were somehow successful in turning my Buick into a Ferrari, you would still not have any ownership rights or control. You’d also be guilty of trespassing. (Incidentally, my mother did this very thing, erroneously believing that I would be touched and delighted with her thoughtfulness in having my car repainted, without my knowledge, from besmirched baby blue to her choice of vibrant puce. I was not.)

A copyright is like a car. The owner of a copyright has the exclusive right to determine who uses it and how—including the rights to edit it, make copies of it, perform it, record it, re-arrange it, re-orchestrate it, translate it, or create derivative works from it. A “derivative” work is anything that “derives” from the original work, such as a play or novel made into a film, a composition used to create a toy music box, etc. In short, there is nothing you can do without the owner’s permission and, in exchange for such permission, the owner can set any terms, reasonable or unreasonable, that the owner wants—including the right to refuse permission entirely. (Ok, there are one two minor exceptions, but they don’t apply to your question.)

If you want to translate someone else’s work, you must have the original author’s permission. If you don’t like the terms of the author’s permission, don’t do the translation and move on to another project. You are correct that, if translations contain a sufficient amount of creativity (as opposed to, say, a Google translation), then the translation is, itself, subject to its own copyright owned by the translator. However—and this is a BIG “however”—if you didn’t have the original author’s permission to make the translation in the first place, then your copyright is meaningless. It doesn’t matter how artistically nuanced, sensitive, or authentic it may be. As an unauthorized translation, any use of the translation would constitute an infringement of the original author’s copyright. Owning the copyright in the translation merely gives you the right to stop others, including the original author, from using it, but it doesn’t give you any right to use it without the original author’s permission.

Learn from my Mother—step away from the car!

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

When Is A “Work For Hire” Not A “Work For Hire”?

Thursday, July 10th, 2014

By Brian Taylor Goldstein, Esq.   

Dear Law and Disorder:

An orchestra commissioned one of our artists to make an arrangement of a work for them to perform. We agreed that it would be a “work for hire.” Now, the orchestra wants to record their performance of the arrangement and has come to us asking for the artist’s permission. It was my understanding that a “work for hire” meant that the orchestra owned it. Is that not the case? If they own it, why are they asking us for permission? If they record it, can the composer still ask for royalties even though the commission agreement stated it was a “work for hire?” What am I missing?  

You’re not missing anything. You are absolutely correct that when a commission agreement expressly states that the commissioned work will be a “work for hire”, then the commissioner owns it. In which case, the composer isn’t entitled to anything beyond the commission fee.

Apparently, however, the orchestra doesn’t understand what a “work for hire” means. The orchestra was either using a commission agreement template they didn’t understand or believed that the term “work for hire” meant they were hiring someone to do work. Regardless, playing with templates and “legalese” is like self-medicating—someone always winds up in the ER.

If the orchestra has come to you of its own volition asking for the artist’s permission, then I would offer to grant permission in exchange for a mechanical license or other appropriate royalty. If they agree, then you have just obtained royalties for your artist that he or she would not otherwise be entitled to. Just because the orchestra legally owns the arrangement doesn’t mean that it can’t make a subsequent and legally binding agreement to pay royalties to your artist even though they are currently under no obligation to do so. Would you be taking advantage of the orchestra’s misunderstanding if the rights it already has? Perhaps, but I would submit that keeping any royalty to the statutory minimum and allowing the artist to obtain what should have been negotiated in the first place mitigates the karmic debt. Besides, rationalization and self-delusion are among the vital cornerstones of the arts industry.

________________________________________________________________

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

The Elephant and The Frog

Thursday, May 29th, 2014

By Robyn Guilliams     

Dear Law & Order

I’ve been hearing a lot about a recent U.S. ban on ivory that will prevent string players from transporting their instruments in and out of the country.  However, I recently travelled to Europe and back with my cello (my bow has a small ivory inlay in the frog), with no problem.  What’s the story?

What a great question!  There has been a lot of press lately about the “new” ban on ivory, which will affect musicians whose instruments contain even a tiny amount of ivory.  Although a number of issues related to the ban are yet unresolved, here’s what we know thus far:

The ban is not really new. U.S. law has prohibited items containing ivory, Brazilian rosewood and tortoiseshell from being brought into or taken from the U.S. for a number of years. (Many other countries have similar laws.)  While these laws haven’t been enforced in the past, the U.S. recently signed the Convention on International Trade in Endangered Species of Wild Fauna and Flora (known as the CITES treaty) with 189 other countries.  The purpose of the CITES treaty is to ensure that international trade in specimens of wild animals and plants does not threaten their survival.  Save the elephants and the sea turtles!

Fortunately, the governments participating in CITES realized that the treaty rules would make it impossible for some musicians to travel internationally with their instruments.  For this reason, CITES provides that musicians may obtain a certificate (or “passport”) that will allow them to transport internationally instruments that contain ivory and/or rosewood, and other banned materials (such as certain types of wood and sea turtle shell).  The passport, which is good for three years and is attached to the person, not the instrument (i.e., it’s not transferable), will allow the musician to travel with his/her instrument throughout the 189 countries without any problems (in theory).

There is no question that, at some point in the future, musicians with instruments containing ivory, rosewood, etc., who wish to travel internationally with their instruments must obtain this passport. However, at this point, there still are serious problems with the passport system:

  • The passport currently is accepted at a very limited number of US ports.  There currently are 18 ports that permit items relating to “endangered species” (ivory and tortoiseshell) to be brought into the country.  There are 15 ports that allow items related to “endangered wild fauna” (rosewood and other banned woods).  Only nine of these ports overlap.  I.e., if your instrument contains both ivory and rosewood, there are only nine ports at which you may enter the U.S.
  • In theory, one may request entry into a non-designated U.S. port.  However, the process for obtaining this permission is a mystery right now, and will vary from port to port.
  • The process for obtaining an instrument passport in the U.S. are still a bit in flux, as this is something quite new that the U.S. Fish & Wildlife Agency is dealing with.  In other words, we are dealing with a government agency working out the kinks of a brand new procedure—which means, if you plan to obtain an instrument passport in the very near future, expect delays and (potentially) other problems.  In fact, if you don’t plan to travel in the near future, you may want to sit back and relax, and concern yourself with obtaining your passport later (after the government has worked out its procedural problems on other poor souls!)

Obviously, one must obtain an instrument passport from their own country, so the rules may be different in various countries.

The great concern at this point is enforcement – when will it begin, and how?  Will there be any sort of grace period?  Unfortunately, these questions remain unanswered by U.S. Fish & Wildlife.  The good news is that, at present, we know of no cases of instruments being confiscated and/or destroyed.  (Let us be grateful for what we have…)

More details on the ban, the instrument passports, and potential enforcement are available at the  League of American Orchestras’ website: http://americanorchestras.org/advocacy-government/travel-with-instruments/endangered-species-material/ivory-ban-impact-on-orchestras.html

So the question for musicians is this:  Do they continue to travel with their instruments internationally with no passport, and hope for the best until enforcement begins?  Or do they go ahead and apply for a passport?  If they choose the first route, there is the risk (though minimal at this point) that their instrument will be confiscated.  If they choose the latter route, they risk enduring extra scrutiny from airport personnel who aren’t yet familiar with the new regulations and procedures.  Each person must weigh the pros and cons, considering their individual circumstances and.

Finally, I want to give a shout out to Heather Noonan at the League of American Orchestras, who has devoted an enormous amount of time an effort to this cause.  Many of you know this already, but Heather has been at the forefront of this issue and others, working tirelessly on behalf of musicians and orchestras.  Whenever I speak to her, she is on the move, on her way to meet with yet another charming legislator to advocate for musicians affected by the ivory ban, or for orchestras and other arts organizations affected by the latest kerfuffle with USCIS, or on other issues that affect our industry.  She works constantly to remind our elected officials that the arts, and artists, matter.  Thank you Heather!

__________________________________________________________________

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 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, Touring | 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.

________________________________________________________________

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

What Do You Mean I Need To PAY For Music?

Thursday, January 23rd, 2014

By Brian Taylor Goldstein, Esq.

Greetings,

I have recently been contacted by ASCAP asking for fees based on music played by live musicians. Are we required to pay if we do not pay the musicians? Any musician who plays at the location is not compensated for their efforts.

Is anyone else who works at or for your location compensated for their “efforts”? Waiters? Staff? Vendors or suppliers? Do you have to pay for liquor if you give it away? Who pays for the electricity or the heat? People can always agree to donate goods and services, and many do. However, as a general rule, society discourages the involuntary donation of other’s property without their permission—even if it’s for a really good cause.

A musical composition—just like a computer, a watch, or a car—is considered property. It is no less valuable—indeed, I would argue, it is of greater value—than anything else you are required to pay for that has a physical price tag attached. A musical composition belongs to the composer who wrote it and/or the composer’s publishing company. Under US Copyright Law, whoever owns a musical composition also has the absolute right to control and determine all uses of the property—this includes the right to perform the music live, record the music, play a recording of the music for the public, change the lyrics, make arrangements, or just about anything else you can think of to do with music. Any location where music is performed—whether it’s a theater, concert hall, or other venue (for-profit or non-profit) where music is performed live or whether it’s a restaurant or store that plays recorded music for their patrons’ listening pleasure whilst shopping or eating—needs to obtain the composer’s permission and, in most cases, pay a usage fee called a “Performance License.”

ASCAP, like BMI and SESAC, is an organization that represents composers and helps them by issuing performance licenses and collecting fees on behalf of the composer. It helps locations, too, because, rather than having to contact every composer individually, you can purchase a performance license from ASCAP to cover all of the composers they represent. It’s like one-stop shopping. However, as they don’t represent every composer, most locations need to purchase licenses from BMI and SESAC, as well.

If your musicians are performing original music they composed themselves, then they can certainly agree to perform their own music for free. However, if they are playing (“covering”) music composed by other artists, then just because the musicians agree to perform for free doesn’t mean that the composers have allowed their music to be performed for free as well. If ASCAP contacted you, it’s because music is being performed in your location and ASCAP is trying to ensure that you have obtained permission from each composer they represent to have their music performed. While there are a number of factors that can determine the cost of obtaining performance licenses—the size of your venue, the price of tickets, the number of performances, etc.–ultimately, it’s your responsibility to ensure that the necessary permissions and licenses are obtained.

__________________________________________________________________

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

A “Thank-You” Note Is Not The Same As A License

Thursday, November 21st, 2013

By Brian Taylor Goldstein, Esq.

Dear Law and Disorder:

I was wondering if I have my own blog and post a music video from iTunes in the blog, giving full credit to the musician, including the musician’s original link, would this be legal? And can you please specify on what full credit means.  Further, if I can’t do this, how do you go about getting permission from the musician??  Thank you!

A “copyright” is literally the right to make copies. A copyright “infringement” is when you make a copy of something without the owner’s permission.

Almost everything you can find on the internet (photos, images, videos, text, etc.) is someone else’s property. Part of the challenge of understanding digital rights is that the ease with which we can download and copy materials on the internet tends to make us forget that copying any materials without permission is still copyright infringement.

Without question, many people post pictures, videos, and other materials and are more than happy to have others repost and share them; but that decision is entirely up to the person who owns the materials. In other words, just because a car is parked on the street, doesn’t mean its free for the taking.

Purchasing and downloading a video from itunes only gives you the right to enjoy it. It doesn’t give you the right to re-post or copy the video. As such, posting someone else’s video on your blog would constitute copyright infringement unless you had permission from the owner of the video.

If you are commenting on or reviewing the video or the artist, then, arguably, you might be able to claim that posting the video constitutes “fair use.” However, the more of an item you post, the less “fair use” it becomes. So, an excerpt of a video is more likely to be “fair use” than posting the entire video. The better option would be for you to post a link to the video rather than post the video itself. In other words, you would be inviting your readers to go to itunes or the artist’s own website to view the video. This way, the owner can control whether or not they want the video to be shared.

I know many people who subscribe to the theory that, in practical terms, you should post anything you want until someone tells you to take it down. However, in practical terms, that’s also called “really bad advice.”

As for giving “full credit”, giving an owner credit in any form or manner neither gives you any rights to post materials nor absolves you of copyright infringement. Stealing a car, but leaving a thank you note crediting the owner, doesn’t make it any less a crime. If you want to get actual permission to repost a video, photograph, or any other copyrighted material, then you need to get permission (aka “a license”) from the owner—which may or may not be the artist. More often than not, video rights are controlled by record labels. Nonetheless, when seeking licenses, the best place to start is always the musician’s publisher, manager, or agent.

__________________________________________________________________

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 Arts Management, Copyrights, Law and Disorder: Performing Arts Division, Licensing | 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

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

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