Forum

The Mission of the Missouri River Cultural Conservancy is to document, record, archive and foster awareness of the unique history and culture of the Central Missouri River Region.

MoRivCC must make decisions how to deal with several serious issues in the near future. This Forum is an attempt to describe the issues in order to obtain comments from concerned members of the community, especially the artistic community, so that MoRivCC can move forward. Please send your comments to webmaster@morivcc.org. Your comments will be added to this discussion.

In order to protect Musicians, Music Venues and MoRivCC it is desireable to have a recording agreement between Musicians and MoRivCC.

Proposed Recording Agreement: We the undersigned understand that I/we are participating in an event which is being recorded by the Missouri River Cultural Conservancy (MoRivCC). This recording will be the property of MoRivCC and will be used for cultural, historical, educational and fundraising purposes. We attest that we hold all copyrights, performance rights and recording rights to all intellectual property and have not licensed any of these rights to a Performers Rights Organization (ASCAP, BMI, SESAC).

We invite your comments to this proposed recording agreement

Copyrights, Publishing, and Licensing. There is a great deal of confusion concerning copyrights, publishing and licensing. It is important to have an understanding of these issues. Typically musicians copyright songs which they think are potentially valuable. They then attempt to sell their songs to a publisher. If the publisher likes the song they will purchase the publishing rights and the musician will be elligible for royalties from the publisher.. The musician may license the song to a Performers Rights Organization(PRO) such as ASCAP or BMI to collect royalties from Radio Stations and Music Venues where the song is performed. When this happens the song cannot be performed at unllicensed venues without the threat of the venue being sued by the PRO.

Licensing Issues. Licensing is a major source of funding for the music industry and a potential source of income to musicians. Generally it is only the top tier of musicians who benefit from these revenues. When a musician licenses his original music he gives up certain rights to the future use of his music. It is important for musicians to understand the terms of licensing agreements before they sign. Many local venues have not purchased a license for licensed music to be performed or recorded on their premises. In order for Morivcc to record, produce, show and archive your original music you cannot have sold the rights to your music to a PRO.

Music venues have obligations if licensed music is performed on their premises. In many local venues the performance of live or recorded music is not a primary or essential part of the business. In these cases payment of a large licensing fee cannot be justified. It is ironic that it is the musicians who profit from the performance of cover songs, licensed music, but it is the venues who face prosecution. It is the responsibility of musicians to not perform licensed music at venues that have not purchased the licensing fees. It is the responsibility of MorivCC to make sure that venues are informed about licensing issues before the performances are recorded. It is the policy of MorivCC to not record licensed music at an unlicensed venue. (pending final approval of the board of directors)

Bill Roe has offered two links which demonstate how this issue is affecting Musicians and Venues in other parts of the country.

http://www.dmcityview.com/archives/2006/11nov/11-23-06/cover.shtml

http://www.ctnow.com/custom/nmm/hartfordadvocate/hce-hta-1214-ht51nc1ascap51.artdec14,0,4629996.story

Dave Dearnley offers the following link

http://creativecommons.org -------Share, Reuse, and Remix Legally

Hilary Scott has contributed the following links:

http://www.stagepassnews.com/frontrow/thevirgins.html ---Venue owners are supposed to pay an annual fee to performing rights organizations, but only the major artists ever see any of the royalties from performances.

http://www.johnbraheny.com/bus/roysce.html ---Different types of royalties.

http://www.illinoislegalaid.org/index.cfm?fuseaction=home.dsp_content&contentid=3819
An explanation of Copyrights, Publishing, Licensing, hiring managers, agents and more

Hilary Scott comments: . While I know 'probably' and 'unlikely' are not terms that a venue owner can rely on when it comes to legal issues, those terms apply to the licensing issue in that organizations such as BMI and ASCAP 'probably' aren't tracking artists such as myself, who are members of ASCAP but have never given them track listings at all, because not only can they not track my songs if they don't have the song list, but they're busying themselves with 'major' artists and venues - hence the problem at the Blue Note. ASCAP and BMI protect mostly those artists famous enough that their songs are going to be covered extensively enough that they'd be losing significant royalty income if they weren't tracked, and/or those artists who get major radio airplay. In ten years of performing in venues large and small, I'm sure none of the owners paid ASCAP when I performed, nor did they concern themselves with it. This isn't to say people don't get bitten by this legal issue, they do, but unfortunately artists such as myself are advised to become members of these organizations and then - whoops! Not only am I not getting any royalties (because, again, they can't track my songs or prosecute violators if they don't even know what songs to look for) but I get the added punishment of not being able to play at one of my favorite venues because I did what is considered professional and necessary for many artists in this business.

Dave Dearnley comments: I found the following in Article III, section 5 of ASCAP Articles of Association speaking of applicant obligations in assigning rights to the society:
Such assignment shall not limit, restrict or interfere with the right of any member to issue to a music user* non-exclusive licenses for rights of public performance.
*"Music user" means any person that (1) owns or operates an establishment or enterprise where copyrighted musical compositions are performed publicly, or (2) is otherwise directly engaged in giving public performances of copyrighted musical compositions.
I read this to say that the copyright owner can perform their own material anywhere, anytime they'd like.

Bill Roe comments: Yep, This is true, that the artist has the right to perform their licensed music anywhere they wish. The problem comes from the fact that it's very difficult to have that control once you start down the slippery slope. I'm attaching a link that deals with this very issue, small venue, original music etc. The bottom line is, the guy did receive a letter from the Assistant General Counsel for the US Copyright Office defending the artist's right to perform his original music. But the restauruant chose not to chance it and stopped having music altogether.

http://www.woodpecker.com/writing/essays/phillips.html

Dale Palmer offers the following link. http://spg.umich.edu/pdf/601.20.pdf
"Pay particular attention to page 2, paragraph C, subsection 4. It certainly appears to me that a venue that does not charge a specific admission fee for a specific event is exempt from ALL licensing requirements."

It is interesting that the licensing organization in this document acknowledges the exempt status for the University of Michigan at events where there is no admission fee. Has this exempt status for no charge venues or not for profit organizations ever been tested legally? Please contribute to this discussion.

James Stilwell offers the following: In thinking about our licensing issues, I realized that there is already a system in place within the open source software community which might be applied to our situation. I would suggest those artists and members of MoRivCC who are interested read over the GNU General Public License at http://www.gnu.org/copyleft/gpl.html. This document is the “Constitution” of the Linux movement and has allowed the open source software community to flourish for well over a decade. It is a working model for non-commercial licensing of intellectual property and, as such, might be a good place for us to start. Obviously, the wording of the GPL is intended for computer software and we would need to perform some modifications; however, I think the structure is sound. The GPL has allowed the open source and Linux communities to co-exist and compete with large corporate software developers such as Microsoft, suggesting possible applications in the music industry.

We want to hear what you think about these issues. Please send your comments to: Webmaster@morivcc.org