First and foremost, my deepest apologies for the untimely break in blogging…right in the middle of this series. Things at New Leaf (hyperlink) have been pretty nuts, and then I took a last minute trip to Vegas with my fiancé for a business trip, and, well, you know, there’s no excuse. Back I have returned!
Today we’ll be covering one more very important right in the copyright owner’s “bundle”: the right to publicly perform.
The right to publicly perform is actually a pretty sneaky beast in copyright law. First, let’s look at actual “live” performances, because this one is a TINY bit more straight forward. Basically, the Copyright Act says that if you’re performing for anybody more than your close family and friends in a private dwelling, it’s a public performance. So this excludes things like parties in a private residence (so no, Moms don’t have to get licenses for their kids’ birthday parties, and you don’t have to get one for this weekend’s frat party). However, this technically doesn’t exclude “private” parties in places that are generally open to the public, or which cater to events. So, if you have a birthday party, a wedding, or a bar mitzvah at a public event hall, even though the general public isn’t allowed at your event, a license needs to be obtained. Please note this also includes outside venues, such as parks with public stages.
But before you freak out about licenses, there’s good news! This is NOT your responsibility as an individual hosting the event; it’s the job of the commercial venue itself. Public performance licenses are issued by Performance Rights Organizations. Most countries only have one, but in the essence of true capitalism, in the US, we have three: ASCAP, BMI & SESAC. If you own a venue, ASCAP & BMI and absolute musts – each hold a huge catalogue of music, and each has active scouts in every area of the US that will check in on the venues regularly to make sure they’re up to date on their licenses. SESEC used to be somewhat optional because it was a private, for profit company that held a very small and somewhat obscure catalogue of music, mainly classical (and for you music nerds, by “classical” I mean the mainstream genre encompassing all orchestral music… not the classical period of music… all of which is now in the public domain ;) ). However, SESAC has been expanding its catalogue over the last decade or so, and I would now advise to play it safe and get a blanket license for all three organizations.
So how do you get a license? It’s relatively easy and can be done online for all three organizations - ASCAP, BMI & SESAC. I think the better questions are these, though: 1) How much will my license cost? And 2) Do I even need a license?
The fee for your annual license is based on a crazy complex calculation, which varies for each organization, based on a variety of factors such as square footage, number of speakers, number of events, how often you have live performances and how often you pump music through the speakers, etc. Thus, Madison Square Garden is going to pay TONS – not only are they a huge arena, but they basically play music all the time between concerts and sporting events. In contrast, a town park may only pay a little for summer chamber music concerts. However, the number one question I get from small businesses is ‘Well, I’m only a small business that plays the radio/CDs. Do I have to pay and, more importantly, WHY I have to pay?’ The Copyright Law is very specific on exceptions to licensing, including down to the square footage. If you’re considering foregoing a license, I would STRONGLY urge you to read the article I just hyperlinked, and understand your rights. (For example, playing the radio is different than playing CDs, etc) If a scout tried to tag you on it, the fines are be substantial and, if you truly understand you don’t need to pay, you want to be able to assert that with certainty.
One last thing that is important to remember if you’re a copyright owner: public performance rights belong to the owners of songs, not recordings; basically, songwriters and publishers – NOT record companies. This is generally why songwriting and publishing is actually more lucrative than the recording business; royalties are paid straight to these folks from the PROs without deducting overhead or other expenses. It’s something to keep in mind when you’re paying your license bill as well – in a way, you’re funding the source of music creation more directly.
Alright, I think that pretty much covers us on public performance. On Monday, we’ll hit up digital transmission: how it is different from “regular” public performance, and who needs to be concerned about it.
www.newleaflegal.com
Friday, February 26, 2010
Wednesday, February 10, 2010
Copyright Rights Demystified: A Practical Guide to Copyright Licensing
Are you an artist that is registered with BMI or ASCAP (or SESAC)? What about an artist with a publishing deal? A record deal? Is someone interested in placing your song in a movie, tv, etc.? If so, you are probably REALLY confused about how copyright works and exactly what you're getting paid FOR.
What the hell is a "mechanical" license? A "synch"? Over the next couple of blog entries, I'll be breaking down the maze that are the copyright "rights" and giving you a practical guide to managing and licensing them.
Ok, first and foremost, copyright is actually 6 different rights rolled into one, each of which can (and should) be licensed separately; that means, for each "right" someone needs to use your music, they should be paying a fee. Here's a run down of the rights:
1) right to copy (or "reproduce");
2) right to distribute;
3) right to publicly perform;
4) right to publicly perform via digital transmission;
5) right to create derivative works;
6) right to publicly display
Before we even get to those rights however, lets talk briefly about recorded music. Recorded music almost always contains TWO copyrights: one for the actual underlying song - this invokes so-called "publishing rights" - and one for the actual recording of that song - often referred to as a "master." So, for example, if you want to re-record someone else's song, you only have to licensing the song's copyright. In contrast, if you want to use a "sample" of a song, you're often dealing with the copyrights for both the song and master (which are often owned by different parties). This is often why you might hear a bit of a song that isn't the "original" recording you know and love, say, on a Television commercial. That is because there is often an additional (and substantial) fee for using the recording itself.
The difference between song rights and masters rights are VERY important, especially if you're a musician signed to a label. Often, you technically don't OWN the actual recording copyright; the label does. So you actually don't have the right to give out the recording or treat it in any way that isn't consistent with your contract (or with the label's consent). Something important to keep in mind.
Alright, let's get back to copyright in general. Let's look at the rights to copy and distribute first, which are normally licensed together.
The right to copy technically means any of the song. In the physical sense, this incorporates any burned copies of your work, any downloaded copies, and, technically any "streaming" (because the work is considered to be temporarily copies onto the listener's computer). Contrary to popular belief, people are not allowed to make additional copies of CDs they own, even for so-called "archival" purposes. That idea came from a judge in a very old case, BetaMax, but it was actually never enacted into law. So why can you put a copy of your CD onto your iPod? Well; from a strictly legal perspective, you can't. And back in the mid-late 90's, record companies tried to stop you by putting DRM ("digital rights management") onto the CD to prevent it. However, it also had the unfortunate side effect of crashing your FUCKING computer... so public policy forces this kind of copying to basically be "overlooked."
However, it is still faux pas - legally and ethically - to make copies of CDs for your friends or send them Mp3. That is why, for example, iPods can only synch to one iTunes account, and why Napster only let's you maintain your library on 5 computers. They are limiting your "license" to use the music.
Which brings us back to copying; as an artist, when you sell a CD, you're actually only selling a LICENSE to your listeners to listen to that one copy privately, or to sell that ONE copy as they see fit. Nothing more. If they want to make additional copies, they have to license that right from the owner of the song (usually the songwriter or a publishing company), and from the record company (if they want to use a particular recording).
Well, what if you want to do a cover of a song? This is where the "statutory" or "mechnical" license comes in. It's the right to copy and distribute a song, and it MUST be granted to anyone that agrees to pay the fee of 9.1 cents PER song, PER copy. These licenses are very easy to get and are administered through the Harry Fox Agency. Simply type in the song info, how many copies you're going to press and VIOLA! Instant license. Now it is important to note that there are TWO rights being licensed here; the rights to copy AND to distribute. Practically, one is really no good without the other.
In tandem with this, I would like to touch briefly on live performances of covers. Musicians, please note - it is NOT your responsibility to get or to pay for a license to do this IF you are playing in a venue. It is the venue's reponsibility to buy "blanket" licenses from BMI, ASCAP and SESAC. If they don't, THEY are on the line for it, not you. The only time this comes into play is if you are performing in a public place - but we'll get to that later.
Let's switch the to "other side" of licensing the rights to copy and distribute - for masters. This comes into play usually when musicians want to use a "sample" of a recording, or for compilation CDs (i.e. "Now that's What I Call Music 1,567!") If you want to use a sample, the first part is easy - just log onto Harry Fox and license the song. The second part is usually a bit more complicated because it's usually a label that owns the rights to the actual recording. However, if you're licensing a song from an indie artist, you can often call them right up and ask; usually they will grant it for a small fee, or sometimes for free if they really want the exposure. The most important thing to note here is that, unlike mechanical licenses, there is no absolute right to use a recording, nor is there a set fee. You have to go straight to the owner, who CAN tell you no and technically set any price they'd like. Neither will probably be the case, but just be aware.
So you've got to reach the record company; yes, I understand that can be a complete pain in the ass. However, many labels do have licensing departments and even with some of the bigger indie labels, you can send an email to customer service and get a response. After all, you want to give them money! They'll respond.
One small note before we stop for the day - all this counts for digital distribution too. So make sure if you are contacted to license music, you ask if the person wants to distribute it online; that's an expansion of right that has a value!
Until next time, then.
www.newleaflegal.com
What the hell is a "mechanical" license? A "synch"? Over the next couple of blog entries, I'll be breaking down the maze that are the copyright "rights" and giving you a practical guide to managing and licensing them.
Ok, first and foremost, copyright is actually 6 different rights rolled into one, each of which can (and should) be licensed separately; that means, for each "right" someone needs to use your music, they should be paying a fee. Here's a run down of the rights:
1) right to copy (or "reproduce");
2) right to distribute;
3) right to publicly perform;
4) right to publicly perform via digital transmission;
5) right to create derivative works;
6) right to publicly display
Before we even get to those rights however, lets talk briefly about recorded music. Recorded music almost always contains TWO copyrights: one for the actual underlying song - this invokes so-called "publishing rights" - and one for the actual recording of that song - often referred to as a "master." So, for example, if you want to re-record someone else's song, you only have to licensing the song's copyright. In contrast, if you want to use a "sample" of a song, you're often dealing with the copyrights for both the song and master (which are often owned by different parties). This is often why you might hear a bit of a song that isn't the "original" recording you know and love, say, on a Television commercial. That is because there is often an additional (and substantial) fee for using the recording itself.
The difference between song rights and masters rights are VERY important, especially if you're a musician signed to a label. Often, you technically don't OWN the actual recording copyright; the label does. So you actually don't have the right to give out the recording or treat it in any way that isn't consistent with your contract (or with the label's consent). Something important to keep in mind.
Alright, let's get back to copyright in general. Let's look at the rights to copy and distribute first, which are normally licensed together.
The right to copy technically means any of the song. In the physical sense, this incorporates any burned copies of your work, any downloaded copies, and, technically any "streaming" (because the work is considered to be temporarily copies onto the listener's computer). Contrary to popular belief, people are not allowed to make additional copies of CDs they own, even for so-called "archival" purposes. That idea came from a judge in a very old case, BetaMax, but it was actually never enacted into law. So why can you put a copy of your CD onto your iPod? Well; from a strictly legal perspective, you can't. And back in the mid-late 90's, record companies tried to stop you by putting DRM ("digital rights management") onto the CD to prevent it. However, it also had the unfortunate side effect of crashing your FUCKING computer... so public policy forces this kind of copying to basically be "overlooked."
However, it is still faux pas - legally and ethically - to make copies of CDs for your friends or send them Mp3. That is why, for example, iPods can only synch to one iTunes account, and why Napster only let's you maintain your library on 5 computers. They are limiting your "license" to use the music.
Which brings us back to copying; as an artist, when you sell a CD, you're actually only selling a LICENSE to your listeners to listen to that one copy privately, or to sell that ONE copy as they see fit. Nothing more. If they want to make additional copies, they have to license that right from the owner of the song (usually the songwriter or a publishing company), and from the record company (if they want to use a particular recording).
Well, what if you want to do a cover of a song? This is where the "statutory" or "mechnical" license comes in. It's the right to copy and distribute a song, and it MUST be granted to anyone that agrees to pay the fee of 9.1 cents PER song, PER copy. These licenses are very easy to get and are administered through the Harry Fox Agency. Simply type in the song info, how many copies you're going to press and VIOLA! Instant license. Now it is important to note that there are TWO rights being licensed here; the rights to copy AND to distribute. Practically, one is really no good without the other.
In tandem with this, I would like to touch briefly on live performances of covers. Musicians, please note - it is NOT your responsibility to get or to pay for a license to do this IF you are playing in a venue. It is the venue's reponsibility to buy "blanket" licenses from BMI, ASCAP and SESAC. If they don't, THEY are on the line for it, not you. The only time this comes into play is if you are performing in a public place - but we'll get to that later.
Let's switch the to "other side" of licensing the rights to copy and distribute - for masters. This comes into play usually when musicians want to use a "sample" of a recording, or for compilation CDs (i.e. "Now that's What I Call Music 1,567!") If you want to use a sample, the first part is easy - just log onto Harry Fox and license the song. The second part is usually a bit more complicated because it's usually a label that owns the rights to the actual recording. However, if you're licensing a song from an indie artist, you can often call them right up and ask; usually they will grant it for a small fee, or sometimes for free if they really want the exposure. The most important thing to note here is that, unlike mechanical licenses, there is no absolute right to use a recording, nor is there a set fee. You have to go straight to the owner, who CAN tell you no and technically set any price they'd like. Neither will probably be the case, but just be aware.
So you've got to reach the record company; yes, I understand that can be a complete pain in the ass. However, many labels do have licensing departments and even with some of the bigger indie labels, you can send an email to customer service and get a response. After all, you want to give them money! They'll respond.
One small note before we stop for the day - all this counts for digital distribution too. So make sure if you are contacted to license music, you ask if the person wants to distribute it online; that's an expansion of right that has a value!
Until next time, then.
www.newleaflegal.com
Wednesday, February 3, 2010
REPO! The Genetic Opera: An American Original
Way back in the beginning of '09, my friends and I got wind of a little movie called "Repo! The Genetic Opera"; it takes place in the future, where a corporation called "GeneCo" has figured out how to manufacture synthetic organs and sells them to people on credit. However, if you can't make your payments... the Repoman comes and takes back whatever organ you've been given. Sounds like a bomb ass movie, right? But it gets better.
My friends and I had no idea what we were getting into when we drove out to a little theater in Worcester, MA that night. It was, in short, a complete and utter shitshow - in an amazing way. This "little" movie (with a mere $8MIL budget) became a completely enormous underground and cult success! I'm not kidding when I say that my friends and I were basically the only people in the entire audience not dressed up and who didn't know the word to every single song in the film. Since then, I have been schooled; I own the DVD and the soundtrack, and I am anxiously awaiting MY chance to dress up at the movies (yes, the movie is still touring and in theaters... 2 years after its release) and sing the songs at the top of my lungs.
However, while anxious cult fans such as myself wait, it seems big budget Hollywood has been busy developing Repomen, a bold and blatant rip off and complete copyright infringement of our beloved Repo! The Genetic Opera. When my fiancé called me just now and told me the plot of that movie, I thought he was joking. Sadly, he was not. So, I search the interwebs and found this article, which features a side by side comparison of the trailers and a blog written by Repo!'s director, Darren Bousman of the Saw series. He, too, is pissed off about what has gone down, as it is ABUNDANTLY clear that the Repo! intellectual property has been stolen from them right under their noses. What I want to know is, why aren't they fighting this??? If anything, they could at least get a settlement that could be used to tour the movie again and open up more people's eyes to the amazing cult experience that only Repo! can provide. So to Darren, I say this: I understand you want people to continue to celebrate Repo! but, from a legal perspective, you SHOULD fight this!! Repo! is an amazing project, and an incredible subculture I am proud to be a part of. You should fight for its rights! Ok - that's all I'm going to say about that, out of respect for Darren's request.
On a separate note, I would like to encourage anyone that knows about Repo! to tweet, blog, post, yell - WHATEVER - about Repo! and how amazing it is. The more noise we make, the more people will continue to love it and the more we can have the amazing experiences of seeing it in theaters, singing and dancing in the aisles. TESTIFY.
www.newleaflegal.com
My friends and I had no idea what we were getting into when we drove out to a little theater in Worcester, MA that night. It was, in short, a complete and utter shitshow - in an amazing way. This "little" movie (with a mere $8MIL budget) became a completely enormous underground and cult success! I'm not kidding when I say that my friends and I were basically the only people in the entire audience not dressed up and who didn't know the word to every single song in the film. Since then, I have been schooled; I own the DVD and the soundtrack, and I am anxiously awaiting MY chance to dress up at the movies (yes, the movie is still touring and in theaters... 2 years after its release) and sing the songs at the top of my lungs.
However, while anxious cult fans such as myself wait, it seems big budget Hollywood has been busy developing Repomen, a bold and blatant rip off and complete copyright infringement of our beloved Repo! The Genetic Opera. When my fiancé called me just now and told me the plot of that movie, I thought he was joking. Sadly, he was not. So, I search the interwebs and found this article, which features a side by side comparison of the trailers and a blog written by Repo!'s director, Darren Bousman of the Saw series. He, too, is pissed off about what has gone down, as it is ABUNDANTLY clear that the Repo! intellectual property has been stolen from them right under their noses. What I want to know is, why aren't they fighting this??? If anything, they could at least get a settlement that could be used to tour the movie again and open up more people's eyes to the amazing cult experience that only Repo! can provide. So to Darren, I say this: I understand you want people to continue to celebrate Repo! but, from a legal perspective, you SHOULD fight this!! Repo! is an amazing project, and an incredible subculture I am proud to be a part of. You should fight for its rights! Ok - that's all I'm going to say about that, out of respect for Darren's request.
On a separate note, I would like to encourage anyone that knows about Repo! to tweet, blog, post, yell - WHATEVER - about Repo! and how amazing it is. The more noise we make, the more people will continue to love it and the more we can have the amazing experiences of seeing it in theaters, singing and dancing in the aisles. TESTIFY.
www.newleaflegal.com
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