Uncategorized

Copyright Considerations, Chorus America 2020

Posted by Jane Potter Baumer on

A webinar at Chorus America 2020, with  Janice Bane (Clearances Manager, Barbershop Harmony Society) and Abbie Betinis (composer)

Sponsored by Barbershop Harmony Society, Justice Choir & Walton Music

The Six Legal Rights bundled into every Copyright: 

1) Right to Distribute 

2) Right to Reproduce 

3) Right to Perform in Public 

4) Right to Create Derivative Works – not covered in this document as it applies to arrangers

5) Right to Display in Public – if you are going to display sheet music or lyrics in a conference (reading session), in a museum, or on a screen. 

6) Right to Transmit Digitally – see info below on livestreaming

Right to distribute:

When is this permission needed?

  • To reprint of lyrics in the program
  • To reprint lyrics as text on YouTube videos

Terms to know:

  • “Master” right – this is the right to the sound recording. 
    • The right to perform a song is different
  • The “circle P” ℗
    • This is like copyright, but for performances
    • Place the circle-P in/on all your sound recordings. 
      • This says you own the sound recording. 
      • Then someone knows exactly who to contact if they want to use it. 

Resources:

  • soundexchange.com – a digital performance rights organization
    • revenue for the chorus can be earned by registering recordings here
    • Advantages: someone can contact you here if they want to use your sound recording in a film, etc. 

Right to reproduce:

When is this permission needed?

  • To download a copy of the performance onto a device
  • To place a permanent copy onto a physical thing, i.e. a CD or an audio tape
  • To place a copy of the performance in the cloud for someone to play on demand (important: the consumer cannot alter it, all they can do is press “play”)

Terms to know:

  • This permission to reproduce is associated with a Mechanical License
  • The object being downloaded is called a “permanent digital download,” OR..
  • ….An interactive/on demand stream (interactive in the sense that the consumer can press “play/stop,” but not alter the performance)
  • NOI (notice of intent, see below)

Resources:

  • How do you get a mechanical license?
    • Harry Fox or some other mechanical license holder designated by the composer
      • Songfile through Harry Fox – if the composer is not on Harry Fox, they cannot help you. 
        • Underrepresented composers, women, etc., are often not at Harry Fox.
      • What if you can’t find the mechanical license holder?
        • Tunechor.com will look up your copyright holders
        • Easysonglicensing.com will hold your hand through the clearances/permissions
        • If you can’t find a composer for a song, you have to send that to the Copyright Office where it sits in the “Orphan Works” area forever.  
          • These third party PROs tend to have the best catalogues. 
          • The PRO will not grant you a license to make an audio recording, however. 
            • They ONLY license your LIVE PERFORMANCES. 
            • A live performance is a non-interactive performance for the audience. 
            • Distributing a recording is NOT a live performance. 
            • If your audience is able to have control over it in ANY WAY, it is NOT a live performance. 
            • If you want to perform live, you probably need an account with all four PROs, because they are likely to represent the multiple composers on your program. 
              • You want a blanket license. 
              • There are only three ways that you might be exempt from paying to perform your music
                • music in a church service
                • K-12 schools (if no admission has been charged)
                • military functions (an inauguration). 
              • BUT, even if you are exempt from telling the PROs, it’s really kind to let composers know that you are performing their works. 
                • This is because ALL the PROs have other ways to pay their artists. 
                • They have different grant systems that can pay composers for other performances! 
                • And the PROs fund this themselves so choirs don’t have to write that check. 
                • If you are playing in a venue, check with the venue because they may have a blanket license – i.e. if your choir normally performs in another hall, that hall might have a blanket license to record you.
      • If the composer’s work does NOT appear in a service like Harry Fox, the composer might not use one.
        • In this case you will need to write them. 
        • This is called a notice of intent (NOI, which is a letter or email). 
      • Payment required: 
        • You will be paying the copyright holder at a rate of $0.91/track or “pressing”
        • so for 100 CDs you would pay 100 x 0.91. 
        • You don’t have to do anything else (you don’t need the composer’s permission for this license, just notify them and pay)
  • What are mechanical licenses needed for?
    • Permanent digital download – your customer has it on their digital device
    • Interactive/On-demand streaming license – this recording is held somewhere in the cloud (all you do is press play, you can’t alter it or access it without access to the internet)
    • Physical copy (CD, audio tape)
    • First recording of a new work? 
      • In the case of a first recording of a new piece (i.e. a commission), you must write an NOI to record the work!
  • Digital recording permissions changes coming Jan. 1, 2021!
    • We are in a transitional period regarding digital recordings until the end of the year 2020. 
      • Currently: For example, for a work held by Harry Fox that you want to “press”/record, at the moment:
        • you send your notice of intent or request to Harry Fox
        • It has one portal for low numbers of pressings/pressing and 
        • a commercial port (on the same site) if you are making more than 2500 copies of the performance. 
    • The Mechanical Licensing Collective:
      • On Jan. 1 2021:
      • You will send your request to a new entity that has been formed by the US government
        • Due to the Music Modernization Act. 
        • This will be a central location for mechanical licenses.
        • It’s called The Mechanical Licensing Collective. 
          • This is for anyone who uses songs that belong to somebody else in the audio realm.  
        • Physical copies (CD, tape) will still be dealt with the old way, but digital copies/downloads of an audio file will be different starting Jan. 1, 2021
      • THIS IS DIFFERENT THAN LIVE STREAMING! 
        • With interactive/on demand streaming, the consumer can pause it, start, and stop, but can’t download it.
        • Interactive/on-demand streaming is STILL going to be handled by Harry Fox for many songs (audio only). 
  • Audio rights for VIDEO
    • Sync licenses:
      • The permission to use video footage is a synchronization permission, called a “sync license” 
    • You must ask for this license separately. 
    • The sync license will take care of the audio AND the video. 
      • Organizations that handle sync licenses: 
      • Janice Bane recommends:Look at ASCAP/BMI and SESAC first. 
        • They have a way to look up copyright holders and you can then contact them directly. 
        • (Some people use agents for this). 
      • They have the right under law to say NO. 
        • DO THIS PROCESS BEFORE THE VIDEO IS DONE. Otherwise, you will have to scratch it! 
        • This is different than obtaining permission for the audio recording, to which the composer CANNOT say no. 
        • If they say yes to the sync, there will usually be a fee involved. 
        • It is a flat fee for the number of units (social media platforms) and the time (usually one per year for YouTube or Facebook). 
        • (Numbers of views don’t really count anymore unless you are talking about DVD, or digital download as physical units, in which case the recording must be “fixated.)
        • IT is MORE COMPLICATED for YouTube!
  • Youtube:
    • Janice Bane reported that The Barbershop Harmony Society has had great success in establishing their own dedicated YT channel. 
      • They upload there and then share to other platforms (social media).
      • They DO allow ads that YT places on our videos on their YT channel.
        • At this time, it has proved good for them, because they have not had to get sync licenses. 
        • This is because the copyright holder has agreed to have ads displayed along with their songs on YT. 
        • These social media platforms already have ASCAP/BMI, SESAC and Global Music Rights licenses in place so the performance of that video is compensated. 
        • Since Janis has been at the Barbershop Harmony Society a dozen years as their copyright/license manager), YT has only taken down ONE video (because it was involved in an estate dispute). 
        • The Barbershop Harmony Society has OVER 100K subscribers! 
          • It’s been a great way to promote the Society and the art form. 
          • With the popular songs that are arranged for Barbershop Harmony, there is often a fixed “master” that everyone understands is the original recording.
          • This has been licensed by big labels, who have a number of back door arrangements with YouTube.
          • This makes the sync process a lot easier for this style of music. 
          • When you are trying to champion underrepresented works or composers, something less popular like classical choral works, or something new in the repertoire that you might be the first to record, this is where the system doesn’t work so well. 
          • The composer has to rely on a chorus that can make a “master recording” – this is hard to find/do.
    • Licenses you need:
      • What licenses do you need to make sure your composers are getting paid for sync licenses on YouTube?
      • Janice Bane: Before the blanket agreements came into place with YouTube, the Barbershop Harmony Society went to the copyright holder and got a YouTube sync license that was for that specific platform YouTube, Facebook, etc.). 
        • This was a flat fee and included a term limit. 
        • Conductors/managers should contact the composer and ask for a YouTube license. 
          • Put something about the ensemble, your mission, etc., in your request. 
          • The copyright holders (composers) love the information! 
    • Real benefits to composers when we seek these licenses:
      • If you want to champion composers in the pandemic, ask for a sync license and support the composer through a fee for this. 
      • Composers may not sell much sheet music this year due to the pandemic! 
      • There has been a lot of generosity with sync licenses in the past in the classical choral music world (free often), but we should expect that to change. 
      • Check in again with any free sync licenses you have now, because the composer may want a fee now so they can buy groceries/have an income stream! 
      • Creators: don’t undermine your assets!  
        • Every request is an opportunity for revenue for your business. You can always give a quote and then be ready to work with the person requesting this. That sets a precedent that you place a value on your work, even if the amount of money you end up making is small.
  • Livestreaming:
  • Audio podcasting: 
    • The discouraging news is:
      • We don’t have an industry standard for podcast licenses. 
      • What most copyright holders are treating it as, is a DPD (digital phono download delivery license for audio). 
        • Request a podcast license including:
          • details of the program
          • the songs you want to use 
          • the timing (what length of each song are you using in the podcast, full use, 30 sec. etc). 
          • If you send out 10 requests to 10 different copyright holders, you will probably get 10 different licenses!
          • The copyright holder may charge you a flat fee, or they may charge you per download of the podcast – it just depends. 
            • Work with the copyright holder. 
  • Video podcasting: Make a sync request. 
    • Add the details that it will be a video podcast.

Right to perform:

The purchase of retail sheet music does not include the right for public performance. In the United States please contact the following organizations for assistance with public performance licensing: ASCAP (www.ascap.com); BMI (www.bmi.com); SESAC (www.sesac.com); and Global Music Rights (www.globalmusicrights.com).

Q&A from Zoom meeting attendees: 

  1. How much should we expect to pay for a youtube license? or a sync license? My choir wants to post to youtube to attract singers and audience, but we’ve hesitated due to lack of understanding of copyright.

A copyright holder in the United States can charge a fee of any amount for a sync (synchronization) permission. They also have the right to grant FREE permission. When contacting a copyright holder please give them a good description (“elevator pitch”) regarding your organization, mission, non-profit/educational/hobby status, etc. This is helpful information for the copyright holder in determining the type of fee that would apply for your permission.

  1. So for a virtual choir recording, posting on Youtube may cover the synchronization permissions?

Your group may be successful in setting up its own YouTube channel, allowing YouTube to include THEIR advertisements in all of YOUR videos, and then sharing your videos directly FROM your YouTube channel to other social media platforms or to your group’s website. YouTube has blanket permissions with many major copyright holders to allow ads in videos containing their copyrighted material. In doing this, the channel owner does not have to secure separate sync permissions. As always, contact an attorney should you need legal assistance regarding copyright.

  1. We’ve commissioned a composition to use a specific poem but both the poet and composer are unsure how to proceed regarding copyright. Not sure who owns the rights to the poem. Suggestions?

Here’s a great guide to licensing poetry for music — written by the late (great) Stephen Paulus:

https://nmbx.newmusicusa.org/before-you-set-those-words-to-music/

If the commissioned musical work contains the composer’s original music and the poet’s poem, this would be considered a derivative work under US copyright law. The poet and composer must work out the terms of ownership themselves for this new work – whether that’s 50/50 or some other division.

Resources:

  1. The NATS webinar, “Copyright Guidance for Singing in a Virtual World,” is located at this link: Copyright Guidance for Singing in a Virtual World .
  2. Information about how licensing works for composers:
    1. Abbie Betinis: Every composer is encouraged to join one of the four PROs (a performing rights organization). 
      1. Composers can only join ONE, however, and it’s very difficult to switch once you are in one or the other.
      2.  Examples are ASCAP, BMI, SESAC. 
      3. These are for American composers only. 
      4. Global Music Rights is by invitation only. 
    2. The benefits are that we (composers) are sublicensing all the work of getting that right to perform. 
      1. This means that the choir who wants to perform the work doesn’t need to ask the composer for the right to perform. 
      2. The organization collects revenue for you for places where the composer’s music is played in public. 
      3. The PROs make everything easier for anyone looking for a clearance!

Leave a comment