Straightforward, Educated Answer Needed Regarding Music Licensing

[Chip Thome]

Originally Posted by Shaun Roemich

Under CANADIAN law at least, liability is not transferable and the PRODUCER is required to secure/ensure appropriate clearances. You can't have your client sign a contract saying "I promise to incur all liability stemming from use of copyright material" for instance, at least that is the professional opinion of my legal counsel.

Same here Shaun. Because this specific band had put out some CDs, one now available on iTunes, from our conversation I could tell Eric had every intention of acquiring rights. Because we bowed out when we did, I do not know how successful that may or may not have been. But he is the closest I know of who may have navigated the licensing rights waters.

[Steven Reid]

Rey, I just finished exactly what you want to do. I'm an IP attorney, which helped me some, but below I just give practical advice, no legal advice, OK? OK.

1. I'm ASSUMING that the school children are singing standard fare, i.e., from sheet music that is for choruses. This includes sacred and secular.

2. You don't need to worry about any music in the public domain, e.g., something that Mozart penned a few hundred years ago. This DOES NOT apply to copyrighted arrangements of something Mozart penned. Be careful.

3. Copyright is NOT just a single right, it is a bundle of rights. You don't necessarily need all of them. Videotaping a bunch of kids singing from sheet music that is copyrighted, no matter if you or the school sells DVD's of the recording, requires a synchronization license. (A mechanical license applies to CD/audio recordings; you don't need this.)

4. Find out WHO is the copyright owner. Usually this is printed on the bottom of the first page of music. BE CAREFUL. Sometimes an agency or third party handles the copyright. You just have to Google this information, which usually is available on the sheet music publisher's website. It is a pain; for about 12 pieces, I burned two evenings doing this. Get it right. Harry Fox Agency website is helpful to find or verify some of this information.

5. Some publishers have web forms, others just e-mail addresses to field licensing inquiries. They are self-explanatory. Most folks at music publishers are responsive, very friendly, and willing to help. You tell them the title of the piece, how many copies, DVD only, what it's for and where, etc. Ask them for terms and conditions for a synch license. In my case, I added the fact that some of the proceeds would benefit the school. Hey, you never know when a copyright holder might extend some grace.

6. The publishers ( = usually the copyright holders) will respond, hopefully, with the license fee. How much? For school stuff, it ranges from $0.20 - $0.25 per song per disc. Synch licences are NOT compulsory, meaning that a copyright holder does not have to grant you a license.

7. Plan all of the above AS SOON AS POSSIBLE. Talk to the school's choir director and ask for a list of all music just as soon as s/he has the final list. Then get started pronto. Publishers are slammed. Some get back to you within days, others weeks, and still others perhaps months. Pay them promptly. If disc sales exceed the number of discs specified in the license, then you go back to them and negotiate another license.

8. Look, this isn't complicated. It is time-consuming. I just gave you a gold-plated road map that I didn't have. Licensing fees are the singlemost expensive part of the school chorus DVD production. But these are chump change compared to what you'd pay for the kids singing, say, a Beyonce song. If that is the case, then, well, you have to decide if you can afford to be legal.

9. If there is a soundtrack that accompanies the choir(s), that is probably copyrighted, too. You need a license for that.

10. A few more important words: if you decide to 'fly under the radar' and not get licenses, then you and the school could incur legal exposure. Chances of getting caught are likely minimal, but think hard now...

I hope this was "educated" enough for you.

P.S. The school's performance of copyrighted music falls within a narrow exemption of the copyright law. Now suppose the school wanted to videotape and sell DVD's themselves. Do they then need a synch license? Yep. If a school says words to the effect of "oh, we're covered," press for details. BE CAREFUL. Remember, copyright is a bundle. The school has just a part of that, and you need another.

P.P.S. I'm still deciding whether this is worth the hassle, i.e., to at least pay for my avocation. I can say without reservation that I would never, ever, hold a gun to my head, make a living by shooting school concerts.

[Les Wilson]

Originally Posted by Steven Reid

...Look, this isn't complicated. It is time-consuming. I just gave you a gold-plated road map that I didn't have. ...

Gold plated roadmap? and post #7 is chopped liver? LOL

[Steven Reid]

Originally Posted by Les Wilson

Gold plated roadmap? and post #7 is chopped liver? LOL

I certainly don't think so, Les, but maybe the OP likes liver more than my advice.

BTW, I dashed off my post before reading the entire thread in detail. Mea culpa. I see that you chimed in earlier with a lot of similar if not identical comments.

[Tim Bakland]

Originally Posted by Steven Reid

Videotaping a bunch of kids singing from sheet music that is copyrighted, no matter if you or the school sells DVD's of the recording, requires a synchronization license.

This makes me curious: what if the kids sing memorized music (so music that was originally copyrighted on the score, but sing it with no score?)

Or, another wrinkle: what if the kids sing a Beyoncé song that has been completely re-arranged by someone at the school or by one of the kids? Is that still copyrighted?

All very intriguing! Sounds like it's better to stick to Handel.

[Steven Reid]

Originally Posted by Tim Bakland

This makes me curious: what if the kids sing memorized music (so music that was originally copyrighted on the score, but sing it with no score?)

Or, another wrinkle: what if the kids sing a Beyoncé song that has been completely re-arranged by someone at the school or by one of the kids? Is that still copyrighted?

All very intriguing! Sounds like it's better to stick to Handel.

1. Yes. Kids memorizing music, kids staring at notes, kids holding their noses covering one eye and singing out of tune . . . if it's copyrighted music they're singing, you need a license to record it. It's not a wrinkle; it is black and white. (Clever try, but don't leave class early.)

2. This is called a derivative work. I won't comment on this because your hypothetical leaves out too many facts for a helpful answer, but it is probably "yes."

Your last remark calls to mind ONE way to make this a profitable business without licensing fees eating into profit: record choral or orchestral performances in which all music and arrangements thereof are in the public domain. Something classical should be easy pickings, e.g., my Mozart example from above.

[Tim Bakland]

Not trying to be clever or pull a fast one, Steve. Honest questions on my part. Fortunately, the little music I do is classical!

[Rey Lowe]

Steven & Les,

Thanks for the invaluable information that you shared. I'm supposed to hear back today on how this other company received licensing for the 80+ songs that are performed in this concert. Should be interesting, but I have my doubts. A yearly, one hour concert is one thing, but managing 80 pieces of music from so many groups and providing "same day take home" DVDs of the performances legally, just does not seem possible to me, based on the information I have been given above. They've either found a fast track or they just aren't being straight with the directors.

[Steven Reid]

Originally Posted by Rey Lowe

Steven & Les,

Thanks for the invaluable information that you shared. I'm supposed to hear back today on how this other company received licensing for the 80+ songs that are performed in this concert. Should be interesting, but I have my doubts. A yearly, one hour concert is one thing, but managing 80 pieces of music from so many groups and providing "same day take home" DVDs of the performances legally, just does not seem possible to me, based on the information I have been given above. They've either found a fast track or they just aren't being straight with the directors.

Rey, a cottage industry of companies is set up specifically to negotiate and acquire licenses of this type (and others, too). In essence, you give them a list of titles, a check, and they get your licenses. I don't think one pays simply for convenience; I understand that the folks at these companies have good rapport with licensing officials at publishers, and their fee probably accounts for 'insider' knowledge and expertise.

In any case, I'm more than a little curious, like you, on how Company B is practically managing the licenses for 80+ songs.

Just an idea: If in the remote chance that you find out that Company B is committing copyright infringement, you could blow a whistle at the involved music publishers. Some even have formal mechanisms to receive such information. I'm just saying that this is one way you could curtail Company B in your area. But think about throwing stones around glass houses . . .

More grist for the mill: In the school concert scenario, I think the only realistic way to be legal and profitable, aside from use of public domain music as I mentioned, is to sell a LOT of discs. This is because most publishers in my experience will grant a license for, say, a run of 50 or 200 discs. You pay ~ $0.25/song/disc. If you sell more discs, terrific, and you negotiate a license for the additional run. The problem is not being able to sell more than, say, 40 discs total. Now you've paid an effective premium license fee for each song, right? And you can't simply ratchet up your price/disc to pass along that premium to parents, or else you won't sell as many discs and, hence, you eat that premium.

[Rey Lowe]

"Company B" has been asked by the directors to provide me with their method and all information needed to obtain the same licensing. They've not yet responded to that request. Should be interesting.

My bride has contacted other local companies to provide the same service under the same scenario and so far, they have said that this "copyright thing" is handled by the schools. Yeah, right.

And as far as selling enough discs to cover the cost of licensing, I'll be able to FULLY enforce a "No Taping" policy regardless of the venue by having the copyright laws on my side. Thus, resulting in more sales.

[Steven Reid]

Originally Posted by Rey Lowe

"Company B" has been asked by the directors to provide me with their method and all information needed to obtain the same licensing. They've not yet responded to that request. Should be interesting.

My bride has contacted other local companies to provide the same service under the same scenario and so far, they have said that this "copyright thing" is handled by the schools. Yeah, right.

Well, don't hold your breath, Rey. Put yourself in Company B's shoes, as I'm sure you have. What would you do or say? You don't need to reach the question of whether they're above board because, on the one hand, compliance with directors would have them (reluctantly?) divulge their hard work and secrets to you and, on the other hand, non-compliance probably wouldn't curry favor with the directors. If I were you, I'd step back and just watch the chips fall.

Anyway, it is POSSIBLE that schools will take care of licensing. Likely? Uh-uh. If a school said that to me, I would ask for and scrutinize copies of each and every license. Else, I might set up an agreement by which the school would indemnify me for liability, but that's a nasty road I wouldn't want to travel.

As I mentioned above, school performances where admission isn't charged fall into a narrow exemption of the copyright law. Schools know this, or at least have a vague notion of its truth. That could be the sum and substance of their knowledge of that "copyright thing." We're covered, so you (the videographer) are, too. Right? No, not right. Mention a synch license to a school and you'll likely get a glazed expression in response. That's understandable; it's not the school's business to know about a synch license if all they're doing is performing copyrighted works.

Here's a gem you'll hear time and time again: "I gave credit (or attribution) to the copyright holder, so I'm OK with that copyright thing." Um, no, what you've done is expressly admit your knowledge that (1) the work is copyrighted and (2) you infringed it. Just be on the lookout for statements to this effect.

Best wishes!

[Steven Reid]

Originally Posted by Rey Lowe

And as far as selling enough discs to cover the cost of licensing, I'll be able to FULLY enforce a "No Taping" policy regardless of the venue by having the copyright laws on my side. Thus, resulting in more sales.

I thought about that, too, but I didn't think for long. Your business isn't mine, I know, so this is how I handled it.

Option A: I want concert-goers to have a positive image of me, so here is how I spun it: you (concert-goer) can sit back, relax, and enjoy the concert, and know that you can purchase a professional DVD/Blu-ray of your kid's performance. Done. The unspoken message is that the concert-goer is free to take a crummy video on their cell phone or iPad whilst dodging heads and flipping through the program, settling down younger siblings, etc.

Option B: you the concert-goer are forbidden to videotape anything because I want to commercialize your kid's performance. If you videotape it, you commit copyright infringement. Want to see the performance? Then you buy it from me.

I'm being a little dramatic, but the point is that I generated business with a carrot, not a stick. If you or anyone reading this has an Option C, I'd love to read about it.

[Rey Lowe]

Option A is the way I have always handled it.

The director of this particular event has contacted the other company (they have a scheduling conflict and are unable to take on the job this year), after I expressed concern over the copyright issues. He says that they are very nice and cooperative and want to share all of their information with me. I'm waiting patiently...

[Tim Bakland]

The "no taping" policy can also be rationalized/justified by pointing out how annoying it is to see those several cell phones pop up above the heads in the audience in the professional video! (In some venues, it's nearly impossible to get a high enough angle above the audience so as to crop out any and all annoyingly positioned cell phones which are taping the event).

In other words, you could also say: please, no taping of this event. The cell phones may block/come into the frame of the professional's video. (If only we could say that for the folks along the aisle at weddings.)

[Garrett Low]

You have to balance on being too militant on the "no other video taping" position. Remember, You still need to be able to show them in the performance. Most schools do not get formal releases from all of the performers and they technically should. Without them, a parent could object to having their child's performance on the video and then you could be really screwed.