MoRivCC records regional singer/songwriters performing original unlicensed music. It is important for musicians to understand copyright and licensings requirements. Local venues which are not licensed can be sued by the licensing organizations if licensed music is performed. Musicians should understand the advantages and disadvantages of licensing their music before making the decision to do so.
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.
It is the policy of MoRivCC to not record, produce, show and archive your
original music at an unlicensed venue if you 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 payed the licensing
fees. The threat of lawsuits from PROs keeps many potential music venues from
providing the opportunities for musicians to perform.
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."
(NOTE: 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. -MoRivCC)
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
Charitable contributions are welcomed and are tax deductible
Contact: Anna Kierah Cash, Secretary, 573-445-4484, kierahk@hotmail.com
John G Clark, Treasurer, 573-442-7077, jgclark@mchsi.com
Gary Hildebrandt, President, 573-449-7889, gary.hildebrandt@gmail.com
Mike Cooper, Vice-President, 573-657-2544, cooperslanding@tranquility.net
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