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Copyright is a subject both complex and under continuing revision. There are volumes of case law that require systematic analysis to remain knowledgeable and large law firms retain the services of lawyers who work full-time in this field. It is not my intention to present myself as an expert; however, there are a two areas of general concern to our members - “mechanical and performance” that seem to be clear. Those are the topics that this column will address.
Be advised that the following does not deal with all the laws pertaining to these topics, nor does it provide answers to many of the legal questions. A complete copy of the “Copyright Law of 1976” may be obtained by writing: The Copyright Office, Library of Congress, Washington, DC 20559. If you have a serious problem then you might wish to consider the services of a lawyer well experienced in this subject.
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Recording & Performing Copyrighted Music
A question that frequently is asked by our members has to do with obligations to the copyright holders of music should they wish to make a sound or video recording of a performance. AMCA’s response to that question repeated here, may help individuals and choruses avoid unpleasant and costly litigation through ignorance of the law.
It is illegal to record performances of copyrighted music without permission and payment of a fee to the copyright holder(s). If you do so, you run the risk of being prosecuted. The “Music Publishers’ Association” http://www.mpa.org/ has published an article which states: “All recordings ... are subject to the payment of mechanical royalties”. As an example, if you wish to make an original recording of a choir concert or any programs that include copyrighted music, you must secure a recording license from the copyright owner, and pay, effective January 1, 1992 a royalty of 6 1/4 cents per song, per record, or tape manufactured.
Perhaps a brief note regarding the penalties that can be levied against infringers would be appropriate here. The law provides for the owner of a copyright to recover damages for unauthorized use of copyrighted music. These damages include the profits of the infringer and statutory damages ranging from not less than $250 to not more than $100,000 per infringement. In addition, prison terms are provided for willful infringement. This applies not only to the general public, but to churches, schools, and not-for-profit organizations as well. I am told that cases that reach the courts almost always are decided in favour of the copyright holder.
Further, “the organizers of such events are responsible for obtaining permission and making the appropriate payment to the copyright owner(s)”
Some seem to be under the impression that if a person or company undertakes to record a performance and perhaps to reproduce the cassettes/videos for sale, then the liability rests solely with the recording company. That is not so!
You may wish to seek a lawyer’s advice, but it would seem apparent from the “Copyright Act” http://www4.law.cornell.edu/uscode/17/ that should there be an infringement and the copyright holders decided to prosecute - the lawyers for the copyright holder(s) could include both the organizers (likely your chorus’ executive) and the company or persons making the recording, in the lawsuit.
In addition, there is also a “performance fee” that is required to be paid for performing the copyrighted music. This has nothing to do with the payment of a fee to obtain a mechanical license (permission to record) which is the subject I’ve been addressing.
In conclusion, allow me to underscore that: PERMISSION MUST BE OBTAINED FROM THE COPYRIGHT OWNER FOR ANY COPYRIGHTED WORKS RECORDED, and all such recordings, no matter what the purpose, are subject to the payment of a mechanical royalty.
ASCAP Reaches Agreement With Guides and Scouts
(I include the following here both for your interest and as an example of how zealously ASCAP can sometimes pursue their task. The compromise indicated came about as a result of the unfavourable reaction from the public after the front page story appeared.)
A major collector of copyright fees in the United States is ASCAP - the American Society of Composers and Publishers http://ascap.com/ and in Canada SOCAN - the Society of Composers, Authors and Music Publishers http://www.socan.ca/. Regional offices are charged with the responsibility of collecting fees and the following article is taken from the Wall Street Journal, July 15, 1997.
“Martinsville, IN. - The American Society of Composers, Authors and Publishers reached an agreement with the American Camping Association allowing camps to use copyrighted music, including music sung around the campfire, for a nominal fee.
The camping association, which is based here, said the agreement calls for it to pay $1 per camp per year for permission to use all ASCAP-licensed music. The association represents more than 2,200 summer camps, including some Girl Scout and Boy Scout camps.
Last summer, several Girl Scout camps deleted ASCAP songs from their programs, including “God Bless America” and “This Land is Your Land”, after ASCAP notified the Association that camps must pay a fee to use copyrighted songs. Following a front page article in this newspaper, ASCAP reimbursed 16 Girl Scout councils that did pay the fees and exempted the Girl Scouts from paying license fees in the future. But ASCAP ad not clarified the license policy for other nonprofit camps.
ASCAP said yesterday that camps that don’t belong to the camping association may be subject to license fees, but they won’t have to pay “if there is no direct or indirect economic gain from the performance of music”.
Your Comments
Any experience that you or your chorus has had on this topic would be of interest and perhaps instructive to our readers. In “Copyright -Part Two” we will address some other aspects of dealing with copyrighted music material. Please take the time to react to this column by clicking on Make a Comment.
Bill
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