Gov't Access Channel & Music Copyright

[Steve Kalle]

I helped start up a gov't access channel and have gotten into a heated debate about broadcasting festivals, concerts and other events where music is being played or a band is singing someone else's lyrics. I argue that it requires BMI/ASCAP licensing and he thinks that we are 'reporting' and fair use applies. There is very little to no reporting at most of these events and the edited programs range from 25-90mins.

So, I have spent the last few hours reading US copyright law and my head HURTS! Section 107 states that 'news reporting' is covered under fair use but there are some interpretations to that.

I always thought that local news stations (ABC, FOX...) pay license fees to BMI/ASCAP for their programming including news shows.

Apparently, they think that they can use any music for free because its a gov't and for non-commercial use.

What say you?

[Don Bloom]

I was going to suggest maybe talking to the good folks at WTTW but they're not really considered a news station. Maybe it wouldn't hurt though.
On the surface, if the running spot isn't news, off the top of my head I would agree with you that they would have to pay BUT the copyright laws are so convoluted about areas like this we both could be wrong. Sorry no direct answer, it sounds like an area you might need to get an IP (copyright) lawyer involved.
I would rather spend a little now than a whole lot later if you know what I mean.
Good luck

[Steve Kalle]

Hi Don,

WTTW is the PBS affiliate, correct?

I spoke to the director of the Miami PBS and he said that they pay for the BMI/ASCAP blanket licenses but ALSO are required to get clearances for concerts and the like.

From reading too much about this issue, it appears one of the factors is if the broadcasted show will hurt the ability of the performers to make money. If someone can DVR our concerts or watch them on our website, rather than paying to see or listen to these small bands, I certainly see how it hurts them.

Courts have ruled on the side of copyright holders more often than not in 'Fair Use' cases. For example, from Stanford's website:

Not a fair use. A nonprofit foundation presented a program called "Classic Arts Showcase," for broadcast principally to public television and cable channels. The foundation used an 85 second portion (of a five-minute performance) by an opera singer from a two-hour movie, "Carnegie Hall." Important factors: Although the court considered the use to be educational, noncommercial and to consist of an extremely small portion of the work, those factors were outweighed by the potential loss of licensing revenue. The copyright owners had previously licensed portions of the work for broadcast and the court determined that the foundation's use affected the potential market. (Video-Cinema Films, Inc. v. Lloyd E. Rigler-Lawrence E. Deutsch Found., 2005 U.S. Dist. LEXIS 26302 (S.D. N.Y. 2005).)

Not a fair use. A television news program copied one minute and 15 seconds from a 72-minute Charlie Chaplin film and used it in a news report about Chaplin's death. Important factors: The court felt that the portions taken were substantial and part of the "heart" of the film. (Roy Export Co. Estab. of Vaduz v. Columbia Broadcasting Sys., Inc. , 672 F.2d 1095, 1100 (2d Cir. 1982).)

[Don Bloom]

Steve,
Yeah WTTW is PBS. I'm glad you talked to the folks in FL I kind of thought thats what PBS stations would have to do. It just sounds logical.

As for the cases you stated, see I told you convoluted. ;-) Man if I had to sift thru all that kind of stuff all day everyday it would be enough to make me give up law and became a videographer.
I wish they could just give a straight answer.

[Steve Kalle]

Next week, I will speak to the city's attorney and ask him to contact an IP attorney. If at the very least, we can get all the necessary release and license (if any) requirements put together before May's big festival & concerts.

The way I see it, broadcasting a band's performance can hurt their ability to make money which makes the city liable if releases and licensing have not been attained.

[Steve House]

Originally Posted by Steve Kalle

...

From reading too much about this issue, it appears one of the factors is if the broadcasted show will hurt the ability of the performers to make money. If someone can DVR our concerts or watch them on our website, rather than paying to see or listen to these small bands, I certainly see how it hurts them.

Courts have ruled on the side of copyright holders more often than not in 'Fair Use' cases. ...

It's not the performers incomes that are at issue - they don't have a copyright interest in the concert or the music they play. It's the songwriters that composed the music and lyrics, through the music's publishers, that have the copyright interest. Copyright doesn't protect the ability of the promoters and performers to make money, it protects the abiltiy of music writers and publishers to make money. In fact, the concert venues have to pay licensing fees to ASCAP, BMI, etc for all the music the artists perform on-stage, even music the performers themselves have written.

For the news coverage exemption to the the licensing requirments to apply, think about the structure of a local news program. A 30-second spot of an interview with the concert's sponsor while a performance is heard in the background would be news coverage, not subject to licensing. But a recording of the entire concert is a production intended to be viewed and enjoyed as an entitity in its own right. It would constitute a public performance of the music and not be considerd reportage ABOUT the music event.

[Steve Kalle]

I was hoping you would see this thread.

You say that the performers do not have a copyright interest and that recording a concert in full is not news coverage; so, who has the copyright interest and why? If the venue or band pays license fees to sing someone else's songs, is there another license needed?

Back to the performers - the Miami PBS guy said that they must pay BMI/ASCAP and get releases for all concerts; so, I don't understand why you say that the performers have no copyright interest.

[Don Bloom]

Steve K,
Steve H is probably right about this but here's an idea.
Paul Tauger was a member here a while back and he is an IP lawyer. While he probably won't answer you as if you were his client, he might be able to give you a general picture and perhaps even fine lne some questions you have. It's just an idea and he might not even respond to an email but he's a nice guy and just might be willing to give some general help to you.
just a thought.

[Marc Burleigh]

I'm not so up-to-date on specific US law on this, but have had some experience on news "fair use" of music in European and Australian contexts.

The TV stations I worked for had a blanket licence agreement that was in place more for entertainment programming, promotions and the sort of soft news fillers that you could argue are news -- or not.

But when it came to presenting concerts, well "fair use" came into play, but within certain limits.

(First of all, though, I understood the copyright issues related to protection of the lyrics, the music as well as to the performance of same.)

For a lot of concerts and so forth, usually up to a minute of performance was acceptable in three minute edited pieces -- but often that meant maybe three blocks of 15 seconds each, some underlay under some action and possibly finishing with a bit of music with the sign off. Your edited pieces are much longer, which seem problematic.

Oftentimes, as this was for the nightly or morning news programs, the producers of the concerts or whatever were quite happy with the arrangement because it amounted to prime-time exposure on TV they didn't have to pay for.

Now, at the upper end, promoters of artists like Madonna or Paul McCartney made it clear exactly what the time limits were for broadcast -- and they specified that the music could not be used for anything else other than a timely report on the concert itself (ie. no promos, no archives, no using it to flesh out another story no matter how closely related).

It seems to me, from your post, that your channel is broadcasting substantial parts of the concerts with little to no commentary, for extended periods of time. I offer no legal advice, just opinion, but if that's the case I'd feel "fair use" for news doesn't apply. It does indeed appear that obtaining some sort of permission from the rights holders, or a blanket permission, would be wise.

[Greg Miller]

You asked about who has a copyright interest in the music. Definitely, the composers of the music and the authors of the lyrics have copyright interest... that is, they own the "intellectual property" and therefore have the power to grant you the right to copy said "property" (i.e. the music or the lyrics). This copyright interest applies whether the music is performed live, played (for example on the radio) or published (as sheet music). When anyone derives benefit or enjoyment from the music or lyrics, then the composers and authors are entitled to compensation. And if you copy their music or lyrics without obtaining the right to do so, then you're liable for penalties.

To address a more specific facet of your question: if a band is playing music that they wrote, then the specific people who are performing the music might also own the copyright to the music and the lyrics... that depends on how the copyright was originally registered. It might be registered to (and owned by) Lennon and McCartney; or to The Beatles, or to Apple Music; or the copyright might have been sold by the original composer and author to Michael Jackson, or inherited by the survivors of a deceased composer or author.

Radio stations have long had to pay licensing fees to ASCAP (American Society of Composers, Authors, and Publishers) and BMI to cover copyright of the music and lyrics that they broadcast.

The Digital Millennium Copyright Act ("Draconian" might be more accurate than "Digital") has added new dimensions. For example, a recorded performance (one aspect of which is the artists' interpretation of the music and lyrics) can have a copyright which is separate from the copyrights for the music and lyrics.

Radio stations have long been exempt for paying any performance royalties; the original precedent took into account the fact that exposure of the songs on the radio constituted free promotion/advertising for the artists, which would therefore be beneficial to them, and that benefit was seen as offsetting the benefit the station derived from having music to play.

DMCA has tried to circumvent this old precedent. They require Sirius/XM to pay for performance rights, although terrestrial broadcasters do not need to do so (the precedent was set for terrestrial and still stands to the best of my knowledge). DMCA also requires internet "broadcasters" to make copyright payments; the calculation somewhat involves the number of people listening to the stream!

Of course filmmakers even need to negotiate clearance for songs that are heard as part of the soundtrack of feature films.

It's becoming worse and worse; IMHO the RIAA basically conned the government (by way of lobbying efforts) into passing DMCA which has the effect of stifling musical dissemination via internet and digital radio, at the monetary benefit of the RIAA.

All of which is to say that, sadly, it's not as simple (or as fair) as it used to be. In your scenario, you might be liable for copyright payments to the composer, author, and performers, too. (I think a previous poster was quite right in pointing out that your scenario is a "public performance" of the material.) You'd be much better off getting legal advice up front than finding out after the fact that you've breached someone's copyright or performance rights.

[Brian McKenna]

i'm reminded of a conversation with a bassoon player who would periodically receive checks (in the post) in the order of 15 cents each. Every time an orchestral performance which he was involved in was broadcast, SOCAN was entitled to reimburse his contribution.

in a just world i could see your situation along a function of time vs. audience, between public-service, promotion, and capitalization on a performance. my hunch is that if broadcast rights were combined with the performer/venue contract then everyone's happy... as long as the workers are performing their own material that is. there is of course an understood distinction between throwing in the odd Leonard Cohen or Megadeath cover and staging a full fledged community theatre rendition of Cats.

[Steve House]

Originally Posted by Steve Kalle

I was hoping you would see this thread.

You say that the performers do not have a copyright interest and that recording a concert in full is not news coverage; so, who has the copyright interest and why? If the venue or band pays license fees to sing someone else's songs, is there another license needed?

Back to the performers - the Miami PBS guy said that they must pay BMI/ASCAP and get releases for all concerts; so, I don't understand why you say that the performers have no copyright interest.

Releases from the performers would be a photo release to use their image and has nothing to do with the copyright on the music. Copyright applies to intellectual property that has been fixed in tangible form ... a performance on stage is ephemeral, not tangible - once the last note is sung the performance is gone forever - and is not copyrightable. A film or video of a performance, OTOH, is tangible and is copyright by the person who makes it. The music - lyrics and melody - that is performed on stage is copyright by the music publisher and the venue pays a royalty to the publisher through ASCAP/BMI etc for each performance of the music. A video of that concert means the music has been recorded in sync to the images and requires a sync license from the music publisher in order to distribute it. When the video is broadcast, each running of the show is an additional public performance of the music that was recorded and the broadcaster must also pay a royalty to the music publisher, also through ASCAP/BMI etc, for each of THOSE performances of the music (usually covered under the broadcaster's blanket license fee).

Greg, I don't believe radio stations were actually exempt from paying royalties; it's just that they pay a blanket annual lump-sum fee to ASCAP/BMI/etc, their traffic departments report the on-air playlist logs, and the licensing societies figure out how to divy up those blanket fees to the various publishers.

Each time a copyright piece of music is played in public the publisher gets a royalty. If the music is performed live on-stage in a concert or by a band in a club, etc the venue, or sometimes the performer himself, pays it. If a recording or a video of a performance is broadcast, the broadcaster pays it. If a filmmaker uses the music owned by the publisher in a film or video, since the resulting video is itself copyrightable separately from the music, he must get permission from the publisher to use the music in it, the sync license. This includes when the music is in the video by virtue of having filmed a live performance - the performance license covered by the venue's royalty payments do not cover the sync license for using the music in a video, even if it got in the video be filming the performance. Usually that license requires enticing the publisher with some money in order to gain his permission <grin>. Then every time the resulting video is shown or broadcast, the venue or broadcaster showing it also pays a royalty to the publisher on each performance.

It seems wierd but in a real sense, when it comes to music copyright, licensing, and royalty payments, performers are not CREATORS of music, they are USERS of music. The songwriters and publishers are the creators of the music and they are the ones who license it and get paid for its use.

[Greg Miller]

Originally Posted by Steve House

Greg, I don't believe radio stations were actually exempt from paying royalties; it's just that they pay a blanket annual lump-sum fee to ASCAP/BMI/etc, their traffic departments report the on-air playlist logs, and the licensing societies figure out how to divy up those blanket fees to the various publishers.

Steve, that is absolutely correct. I thought I said that above, but maybe I wasn't clear. The ASCAP/BMI fees go to the publishers and copyright holders, and you describe the logging procedure correctly. (Mea culpa, I just went back and underlined the word "performance" to clarify my meaning.)

AFAIK the terrestrial broadcasters do not pay fees to the performers. (In other words, if the song was copyrighted by Lennon & McCartney, then ASCAP/BMI would disburse some pro-rated payment to John and Paul as copyright holders, but George and Ringo would get nothing as mere performers.)

The original thinking was that the performers would ultimately make their money from the sale of their records, and airplay would essentially be free exposure/promotion of the records, which would result in more sales. However, there have been one or more bills introduced recently that would change that. The performers are no longer content with the free exposure that comes from the broadcast of their songs... now they want to be paid for the on air "performance" as well. They want to have their cake now, and eat it later, too.

Here's a story about one such recent development http://www.nytimes.com/2010/08/23/bu...royalties.html -- I honestly don't know the status as of today. As I said, this is an evolving field and that's why getting expert legal advice is so important.

Originally Posted by Steve House

in a real sense, when it comes to music copyright, licensing, and royalty payments, performers are not CREATORS of music, they are USERS of music. The songwriters and publishers are the creators of the music and they are the ones who license it and get paid for its use.

Yes, but... the new copyright law also provides for a "phonogram" copyright, which copyrights an audio recording, including a CD or other recording of a musical performance, because such performance is not ephemeral... it is fixed by virtue of being recorded. The performers (and producers and engineers, I guess...) create a fixed entity -- the recording -- which can have a copyright that is separate from the copyrights for the music and the lyrics. So if you have a 2010 recording of a song whose lyrics and music were written in 1810 and are thus out of copyright, the recording itself can have a current "phonogram" copyright, which makes it verboten to make a copy of the recording.

Which brings us back to "get expert legal advice" -- "expert" meaning "not from your neighborhood ambulance-chaser, but from an intellectual property specialist." Aargh...

[Steve House]

Originally Posted by Greg Miller

...Yes, but... the new copyright law also provides for a "phonogram" copyright, which copyrights an audio recording, including a CD or other recording of a musical performance, because such performance is not ephemeral... it is fixed by virtue of being recorded. The performers (and producers and engineers, I guess...) create a fixed entity -- the recording -- which can have a copyright that is separate from the copyrights for the music and the lyrics. So if you have a 2010 recording of a song whose lyrics and music were written in 1810 and are thus out of copyright, the recording itself can have a current "phonogram" copyright, which makes it verboten to make a copy of the recording.
...

Yes indeed. But the phonogram copyright on the recording isn't new to the DCMA, it's been around for many, many years. When a performance has been fixed in a tangible form by recording it, the recording itself has a copyright associated with it. But that's not a copyright on the performance. Imagine a show where you and I are standing next to each other, each of us separately recording a song being performed on stage by Lady GaGa. We each own the copyright on our respective recordings and those copyrights are in turn completely separate from the copyright on the words and music that have been performed on the stage. None of them are a copyright on the actual stage performance, that isn't tangible. Lady GaGa may have a copyright on her choreography, her sets, her costumes, etc but again, that is copyright on tangible things that she has created that are associated with the performance, not the stage performance per se. Of course, if we sell or broadcast those recordings she could come after us for commercial use of her pictures or her voice without permission but that too is different from her having a copyright on the performance itself.

The phonogram recording copyright is why if I'm making a movie about a love affair on a ill-fated big boat and want to use Celine Dion's recording of "My Heart Will Go On" as its theme I will need two licenses, the sync license from songwriters James Horner and Will Jennings publisher to use the song itself regardless of its source and a Master Use license from Fox Film Music, the label that actually made Celine's specific recording of the song, to use her recording of it. With the sync license but not the master, I can use the song but I have to record a fresh performance myself and I can't use Celine's..

[Greg Miller]

Steve,

Yes indeed, you explain the details admirably (and in agreement with my understanding of the situation).

All of which makes the original poster's situation rather convoluted, to say the least. Well, the theory of the situation may be straightforward, but I think he will need to go through a rather convoluted process to deal with the necessary legalities before it's entirely safe to broadcast a video of a live festival or other event. (IMHO but I am not an IP lawyer.)

Copyright, unfortunately, often seems like an ugly critter. I recall reading, several months ago, that someone (in NY?) had discovered a treasure trove of old jazz recordings by a known performer. I think the collection was donated to some sort of cultural or educational institution. The plan is to make archival copies of everything. But now comes the copyright issue... unless the institution can determine who the composers (and authors) are, when they died, whether the copyrights were sold, assigned, or passed through an estate, etc., and who are the present copyright holders (if any), the institution is reluctant to release any of these recordings for the rest of the world to listen to, because of possible copyright violations.

So here's this wonderful DMCA (which began, I believe, partially because Mickey Mouse was approaching the end of copyright under the old law, and Disney wanted to somehow retain control of all MM items) preventing the rest of the world from hearing this somewhat important collection of jazz recordings.

Gotta love it... I'm sure glad I don't work in the legal department.