Note that the licensing of "pubic performance" is not limited to playback of pre-recorded music. ASCAP and BMI are agressively going after public venues down to the smallest coffee shop and hot-dog cart for public performance license fees for both recorded music and live music.

A news story currently making the rounds here in Portland, OR:
Exerpt from news article in Willamette Week...
“BMI/ASCAP” | Willamette Week | February 23rd, 2005

BMI wants its cut, no matter how small the venue. Ask Stefanie Fisher, the owner of the Abbey Cafe on North Killingsworth Street. Although the 12-seat coffee shop plays only independent local music, BMI demanded its $400 a year.

Fisher finally caved in so that her cafe could keep playing CDs and hosting small, live shows.

A month later, however, another tentacle of the music industry (and our other Rogue) the American Society of Composers, Authors and Publishers , or ASCAP sent Fisher a $900 bill for its "service."

Fisher explained that the Abbey Cafe only plays music by local acts, but ASCAP still wants her to pay its fee because her musicians "might do covers."

Johann Mattheson (1681-1764), Der Vollkommene Capellmeister, once said about musical borrowing:

'Borrowing is permissible; but one must return the thing borrowed with interest, i.e., one must so construct and develop imitations that they are prettier and better than the pieces from which they are derived'.

Ah for the days when even the concept of intellectual copyright didn't exist (then again, many on these pages would struggle to make a living without it).

But the moral point still is that simply using someone else's music to enhance something unrelated to the music and / or to solely make financial gain without the author's permission is wrong and always has been. I would not include dubbing a couple's favourite music on to their wedding video in this as to me they want it because they love the music not for any other reason and find it hard to believe a band would sue over it - they would certainly look very bad if they did! And referring back to the quote, I don't personally have a problem with sampling etc if one 'returns the thing borrowed with interest', though that wouldn't stand up in court!

And Steve, I was intrigued to find out recently that not only was live music synchronised with the images in the early days, but whole troops of skilled performers hid behind the screen providing live sound effects, including lip-synched speech! So much for the 'silent' cinema! (from a great book by James Lastra).

I'm sorry, but before I go on I feel the need to point out this hilarious typo.

Haha..."pubic performance".

Anyway, here's what I really wanted to say:

How can they ask for money if the music the coffee shop plays is local indie music? I would completely understand if it were songs that are protected by BMI, but otherwise that's just unfair. It's like saying that if I decided to open my own pub, and have my friend's band play there every friday night, they could charge me for it. Yet my friend (and his band) agreed to play for free as a way of promoting their music. How does that make any sense?

I'm guessing BMI and ASCAP are assuming the musicians couldn't have actually composed all the songs they're playing. Being an indy musician or band doesn't mean that they are the actual songwriters as well, exclusively perofrming there own compositions, and an indy could make an entire career performing covers - tribute bands do it every day. The BMI/ASCAP fees cover performance royalty payments going to the music's composers, lyricists, and publishers of the songs the bands are playing and have nothing to do with the status of the band itself. When we think of music we think of the artists themselves and tend to forget that there's a whole music publishing industry behind them that actually creates most of the music the artists perform,

If the band is performing only their own stuff, they may be self-publishing and that makes them become part of the whole royalty process. The fees ASCAP and BMI collect from the venue ultimately trickle back to the band in the form of royalty payments covering the music they have been performing. The band gets a royalty each time their composition is performed, whether thr performance is by the band themselves or by a third party. Thus the venue is indirectly paying the musicians as the composers for the performance of the songs they wrote. Just because they're a local indy doesn't mean one should expect their talent to be free.

Interesting. It makes me feel so much better knowing that BMI/ASCAP are assiduously tracking down the heirs of Bach and Scarlatti and others of that era so they can pay them a royalty based on the number of times a classical guitarist performs their work at our local 10 - 15 table coffee shop.

Although now I'm wondering just how they would know how many times the works were performed considering that nobody working in the coffee shop would even know what was being played much less how to report it to who.

Edit

OK - Just in case you didn't figure it out, this was supposed to be tongue in cheek (or foot in mouth, or...)

However, I started huning around to see if I could disprove my own comments and came across a very interesting (if very old) thread here

http://www.guitarseminars.com/ubb/Fo...ML/002062.html

If all the apparently knowledgeable commentary is to be believed, it turns out that nobody has any real idea about how often things in fact do get performend live.

Anyhow, I thought the thread was interesting.

And if you search around a bit more, you will find widespread dissatisfaction (to put it mildly) with ASCAP and BMI for paying the big names and ignoring the remaining 90% of their catalog. It is little better than a scam. ASCAP and BMI seem to have much the same reputation in recent times as RIAA. I get the impression that more indy composers are just bypassing the mess altogether.

Bach and Scarlatti's works would be out of copyright so not in the picture but you can bet the estates of Cole Porter, Jerome Kern, or Johnny Mercer are still regularly getting royalty checks from ASCAP and BMI for current performances/airplay of their music.

I seem to recall reading about lawsuits that put event videographers out of business: in one, someone in the entertainment law field saw a wedding video at a friend's house using a number of pieces of unlicensed music and ratted out the videographer; and in the other, a professionally made birthday video where "Happy Birthday" was used without being cleared. It's my understanding that with respect to showing your stuff at a film festival that you are pretty much under the burden of proving (or at least attesting to it to relieve the festival folks from liability) every video and audio clip is of your own making or that you have the appropriate clearance in writing. The folks who sell library sound effects for royalty free use (after you buy the library) probably try their best to see if anyone's using their trademark effects without a license. It seems like a brutally greedy world in this respect, but when it comes to the almighty dollar, people can get very upset over use of their creative material without permission.

I don't know if it's greed that's the motivator. When anyone works hard to create something, and it is hard work to do it well, and then they see someone else using that work to boost their own benefit without offering a taste of the action back to the original creator, I think they are justified in getting a bit miffed. If someone's wedding video is made into a better product than it otherwise might be by virtue of the popular music you have used in it at the couple's request, then the creator of that music deserves a piece of the fee you collected for shooting the gig and making the video. His work contributed to the value of your product.

And here's another perspective to toss into the mix.

You've written a wonderful song. Heartfelt, beautiful, uplifting. The world falls in love and you make a nice royalty for a few years. But copyright is interpreted in a landmark court case in the future such that you MUST allow anyone who pays the fee to license your work for a small amount. The IDEA behind this fabulous legislation is to "level the playing field" so that all producers, large and small, get a fair chance to use the music they want.

Sounds great, huh?

However, immediately taking advantage of the new law, some ham fisted idiot of a commercial producer decides that your heartfelt, beautiful melody and lyrics would be the PERFECT ironic compliment to their new spot promoting HERPES medication.

Two months later, your ballad is inexorably and permanently associated in the public consciousness with STDs.

Your recourse? Nothing. After all, they paid the same piddling licensing fee that the wedding folks did.

Point being that RIGHTS aren't exclusively about the amount of money exchanging hands. They are also about giving the creator of a work the right to control where and how their work is used.

Lots of people think it should be free and unfettered to associate copyright music to build feelings in a wedding video for that couples "special day". But doesn't that mean I should also get to argue my "right" to tie those same songs to my hot new reality series - Slaughterhouse Employees in Training?

Fair is fair, after all.

Just an additional perspective to the discussion.

In some places that is easier than others. There in Canada, isn't there a way of getting more reasonable sync licenses (more like mechanical licenses here in the US)? Countries with more modern copyright laws seem to have more reasonable methods for doing this. Here in the US we are stuck with zip for compulsory sync licensing.

Nope, Canada generally hasn't followed the lead of other Commonwealth countries like Australia and the UK in this regard and there is no such thing as a 'compulsary" sync license. Most of our copyright laws are pretty close to paralleling the USA AFAIK. One of the few exceptions, and one that surprised me when I learnt of it, is regarding the copyright on still portraits. In the US the photographer owns the copyright to the image but here in Canada the person contracting to have the portrait made owns the copyright on the picture.

EDIT: Oops...didn't notice there was another page left to the thread. Apparently somebody already pointed this out.

I'm fairly certain that the music written by those composers is in the public domain. RECORDINGS of them, however, are not. For example, were I to perform and record my own version of, say, Beethoven's Fifth, I would be allowed to sell that recording to you. If you were to then use that recording as background music for a video without permission or paying royalties, THAT would be illegal.

Actually, that reminds me of one of my proffesors who would play old silent films in class, with music that didn't match the visuals at all. The reason for this, he explained, was because these films were in the public domain, so technically all one had to do to sell copies of them is to change them just enough to make them your own. In this case, the company that made my proffessor's collection decided to just slap on any old music. You could tell that the music wasn't composed specifically for the film, as it would have been back when it was performed by musicians inside the theater, when it was first released.

The answer to this question might seem obvious, but I've never purchased a SFX or music library before:
How would you prove that the music (or SFX) is from a royalty free library that you PURCHASED?

I've never had to deal with most of this because I have a friend who is really into everything audio, and he usually takes care of all of that for me.

Letting your friend take care of it is dangerous ... as producer of the video, you have the legal responsibility to make sure all the 't's are crossed and 'i's dotted. The buck stops on your desk. If your friend gets something wrong, it's going to be you, not him, in front of the court and paying the damages. You need to make sure you're completely up to speed on the law and the source of your materials so you can be sure your friend is doing it all properly.

When you purchase from a library you get a reciept and a license, the two of which together establish your right to use the materials.

Steve - I may be out of date but in the "old days" the US photographer owned the negatives and was thus the only one who could make prints but the client owned the images and the photographer couldn't make prints except for the client. Or at least that's how the photographer that did our wedding portraits explained it.

David - Since my wife is a classical pianist who still performs occasionally I have a great source of public domain classical recordings - particularly since she prefers to use the "Urtext" or original unedited editions so not even any copyright issues with the music itself. Of course you're right about Bach and Scarlatti being public domain - particularly since there was no copyright system around at the time anyhow. Which is why Liszt could for example freely make piano reductions of the scores to the Beethoven symphonies and everybody borrowed each others themes. And classical music flourished. Sort of like open source software!

The photographer owns the copyright to the images he makes but the subjects still retain the rights to control the use of their likenesses. That means the photographer can't actually DO anything with the images unless the subject gives him their release. The wedding couple couldn't barter for a free dress in exchange for permission to use a photograph of the bride in an ad for the wedding dress store because it's the photographer who owns the rights to reproduce the actual image, but the photographer also requires a release from the bride to use her likness commercially before he could sell the photograph to the store for the same purpose. That's why a wedding couple can't legally take the proofs from their wedding shoot into Costco and have reprints made to send to their family ... to do so would violate the photographer's copyright.

That's an interesting question. The threshold for musical copyright infringement here in the states was at one point arbitrarily set at a specified number of identical notes in a row (remember MC Hammer's "Can't Touch This"?). I wonder if some effects house would be able to challenge your unlicensed use of their car crash effect based on the waveform being 90% similar or some such legal test.


And I didn't mean to imply that anyone should be able to obtain the cheap (or free) rights to someone else's work of art, by government rote. Heck, if the Rolling Stones want to charge $100k for 30 seconds of Paint It Black - that should be their right. I'm just saying, it seems unreasonable at times.

Yes, I know all this. I should have specified. My friend usually composes the music for me or creates it using free loops. As for the sound effects, we often work together to record whatever we can.

All of those 'cost NBC millions' were fake, by the way, including this one. They make for good TV though.

Not when it was done 'for hire'.

Right, but it's not a 'work for hire' unless it's explicitly stated to be so in a written contract. Some people think the simple fact of the photographer having been paid automatically makes it a work for hire. It doesn't. The copyright on a work produced as an independent contractor still belongs to the contractor unless there's a writing to the contrary.