|
Performance licensing is the legal means that allows you to use
someone else's musical creations with freedom. While it is possible
to gain permission directly from the writers, arrangers, and publishers
of each piece of music, licensing is a convenient way to give you
the freedom to use music legally. Legal licensing for the use of
intellectual property is a sensitive and somewhat complicated subject
with regard to music. Meetings of all kinds use music to enhance
the event's success, momentum, and energy. As with any copyrighted,
patented, or trademarked materials, U. S. Copyright Law requires
that permission must be obtained before using these protected materials.
This law is in place to protect, reinforce, and encourage the American
people's spirit of invention. You are not required to get a license
from the three licensing organizations (ASCAP, BMI, and SECAC),
but you are required to get permission to use these works.
If you are not experienced with music performance licensing, you
probably have some questions, concerns, or apprehension about the
topic.
"How do I know if I am within the law? When are licenses
not needed? Who gets the licenses? Where do I get the licenses?
How much will it cost me or my organization?"
These questions are part of a touchy subject that we, as musical
entertainers, are sometimes asked by CMP's concerning whether we
have obtained the proper licenses allowing us to use legally the
music in our performances. Please understand that we do not report
our performances or anyone else's performances to any organization.
While there has been much written on this subject, we have consolidated
the knowledge we have on this topic as a way to further de-mystify
your questions on this subject.
In gathering this information, we encountered many direct contradictions.
For instance, we read on the licensing organization's web sites
that if you lease space from an establishment, such as a hotel or
a restaurant for your event, their own license would not cover your
use of music. Then, a licensing expert told us that the establishment's
license would cover your use in some cases. As you can see, dealing
with these licensing organizations could be quite frustrating, and
we can only recommend that you consider dealing with them on a per
event basis.
The writers and publishers of the music you use consider their
music is being performed whenever the attendees hear music. This
includes not only a live performance, but also music used in audio/visual
and multi-media presentations, music piped into a meeting area or
trade floor, or simply playing a CD over your own system for the
benefit of the attendees. While this paragraph may cause you to
roll your eyes or make comments under your breath like "Oh please,
give me a break!", the reality is that over the years, the federal
courts have not ruled in favor of the various defenses used in the
copyright infringement cases brought against music users. The fee
to keep all of your necessary music performance licenses current
could be as low as $300 per year, a much smaller fee than a potential
law suit for using copyrighted materials without the proper permission.
The information presented here is not intended to be legal advice
and should not be considered as a substitute for legal counsel on
specific copyright issues.
Under what conditions is a license not needed? A
public performance is defined as a performance "at a place open
to the public or at any place where a substantial number of persons
outside of a normal circle of a family and its social acquaintances
are gathered". Using this definition as a guide, and realizing that
a company or organization's employees and supporters constitute
a "public", you can probably feel comfortable organizing wedding
receptions and other family social gatherings and parties without
permission or a music performance license.
If a corporate event you are planning is being held at the company's
office, campus, or other company-owned facility, there is most likely
a "Music in Business" license already in place. Companies are required
to keep this type of license in place so they can have music in
all areas of the office, telephone "music on hold", and for other
internal uses. Just for your protection when planning a meeting
at the company's place of business, it is a good idea to ask if
the office has a "Music in Business" license in place. This license,
however, may not cover performances in areas generally open to the
public.
Performances used by instructors or students during face-to-face
teaching activities of non-profit institutions, music in the course
of religious services at a place of worship, and in some cases,
the use of radio and television broadcasted transmissions will most
likely not require any music performance license agreement. Performances
at charitable functions are exempt only if there is no commercial
advantage and no person is paid, including the musical performers.
If there were piped-in music or other type of subscriber service
supplying music, you would only be required to obtain a license
if you are charging admission for your event. If the music or its
arrangements are old enough to be in the public domain or have never
been copyrighted, you may not need permission. Also, you would not
need to obtain a license if the music is part of a dramatic presentation
such as an opera, musical comedy, or other musical theater.
Who gets the license? Licenses are geared toward
the people who stand to gain the most from using music at their
establishment or event. There is no license available to musicians
and performers. According to information we obtained from the licensing
organizations, unless the venue is also the promoter of an event,
they are not expected to license the music being used at their venue.
It is usually the organization, company, promoter, or meeting planner
who is responsible. Different types of license agreements are granted
for different types of music users. Generally, the "Convention,
Trade Show, Exposition" - type license agreement is the one you
need either to get for yourself, or make sure the organizations
or companies you are planning events for have in place. Even if
you are planning an event in a hotel, restaurant, club, convention
center, or other leased space, the agreement the establishment has
for their own use may not cover the music you use at your private
event.
Where do I get the licenses? Composers, lyricists,
arrangers, and publishers usually join one of three performing rights
organizations. By joining, they are giving the organization the
right to license the use of their original intellectual property
and the right to prevent others from using it without permission.
If you do not know to which organization the creators (writers,
publishers, and arrangers) of the music being performed at your
event belong, then the easiest and safest approach is to have agreements
in place with all three organizations (ASCAP, BMI, and SECAC).
ASCAP, The American Society
of Composers, Authors, and Publishers, is a membership society
founded in 1914 and is headquartered in New York City. It also has
offices in six other U. S. cities and licensing managers located
throughout the country. ASCAP has a prolific membership of over
110,000 and collects royalties on over four million copyrighted
musical works. It also has agreements with foreign performance rights
organizations. (www.ascap.com 1-800-505-4052)
BMI, Broadcast Music, Inc,
also made up of composers, lyricists, arrangers, and publishers,
was formed in 1939. It operates as a non-profit organization and
is located in New York City with offices in six other cities. Its
membership is over 300,000 and the repertory covers more than three
million copyrighted musical works. BMI also has agreements with
foreign licensing organizations. (www.bmi.com 1-877-264-2139)
SESAC, originally standing
for Society of European Stage Authors and Composers, was founded
in 1930 and is a for-profit corporation headquartered in Nashville,
TN, with offices in New York and London. SESAC also has agreements
with foreign licensing organizations. SESAC is the smallest of the
three licensing organizations. It previously had a considerable
portion of works from the religious music category but now has a
catalog that is as widely varied as the other organizations. (www.sesac.com
1-800-826-9996)
If you use only a limited number of songs or musical works at
your events, you might need an agreement from only one of these
organizations. The organization's websites are useful in determining
if the songs you are using are in their repertory. The various creators
involved with one piece of music, however, may make it necessary
that you have agreements with more than one licensing organization.
In this case, your best option could be to get permission directly
from the writers and publishers on your own, apart from the licensing
organizations. Remember, as we said before, you are not required
to have a license; you are only required to have permission. You
may have to contact the U.
S. Copyright office for further information on a piece of music.
( www.lcweb.loc.gov/copyright 202-707-3000)
How much will this cost? The three licensing organizations,
ASCAP, BMI, and SESAC, have made it relatively simple for you to
get licenses and pay your fees. They have yearly blanket agreements
for a minimum fee. If your events that use music, whether live,
recorded, or part of a multi-media presentation, do not exceed the
minimum requirements in terms of attendance, you may not have any
other obligation financially beyond the minimum. The BMI agreement
costs around $105 annually, which covers an attendance of around
2100 people. If more than 2100 people attend your events that use
music, you would pay 5 cents per additional person. Your BMI agreement
alone would be calculated using those numbers. These blanket agreements
may not cover your use in all different venues and situations. You
would have to check with the licensing representatives on a per
event basis.
For instance, according to the information on BMI's website, if
you had 3,000 attendees annually at similar events and venues that
use music, you could multiply 3,000 x .05 = $150.00. If you then
subtract your paid minimum of $105.00, you would then owe $45.00
more for that year's events. You or your organization would also
have similar agreements with ASCAP and SESAC. The various organizations
state that they return more than 80% of the collected fees to the
songwriters and publishers after operating expenses.
There are some licensing management facilitators that take care
of some of this for you, as well as offer expert advise. Some of
them only represent a certain catalog of material, while others
will cover all the bases for you. For example, Bill Slantz, who
was formerly a licensing representative with ASCAP and now has his
own company, can offer you expert advise on licensing issues. (www.wgslantz.com
W. G. Slantz Co. 636-922-1600). You can set up a BMI seminar for
an association or group by calling BMI.
Conclusion As a disclaimer, we would like to say
that our years of experience have presented some conflicting results
and sometimes it does seem that the licensing organizations have
a tendency to be vague or unsure when it comes to this subject.
Therefore, the information presented here cannot be deemed to be
applicable to all situations. Some of the obvious "gray" areas,
as in the possibility of overlapping licenses and exemptions can
be confusing. We do not report in any way to the licensing organizations,
we simply perform across the USA for all kinds of events. This discussion
is intended for your information, hopefully giving you a better
understanding of why the licensing organizations exist, who would
win in a battle with them, and how to play by their rules. It is
obvious that they are not able to monitor every use, every performance,
and all times in which the music they represent is being used, however,
as part of the cost of doing business, and to be in compliance,
you will have to consider if you are comfortable with their fees
and the premise of their efforts. In the event that you are ever
approached by one of the representatives from a licensing organization,
hopefully this information will be useful to you.
Chris Hudson and Doug Saleeby are the performers in Hudson
& Saleeby, America's Keyboard and Vocal duo. We make our living
performing for conventions and other special events. Working with
the many meeting planners and agents in our career, we have seen
how hard you work to put your events together and we appreciate
all you have done to include us in your functions. The purpose of
this article is to address some of the issues important to you and
to keep the communication lines open between us on improving our
service to you.
|
