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Last month’s column focused mainly on “mechanical license fees” with a mention of the law regarding “performance fees”. The latter attracted much interest from readers and you responded to the column with a variety of concerns, which received a personal reply in most cases. This month I will expand on the subject of performance fees and attempt to answer many of the questions you asked for the benefit of all readers. It is the purpose of this series to inform our members of the law as it refers to copyright not to moralize on how you should respond to the information. However, I would strongly recommend that you read and consider the comment given in response to Part One titled “Copyright is also a MORAL issue”.
Although there is another possible defense to copyright infringement in the “fair use” doctrine, the reported cases generally show that the courts do not allow the use of this doctrine in defense of the performance of an entire musical work.” Nelson Capes, attorney with the firm Popham Haik, Schnobrich & ASCAP requires that you sign a (blanket) license agreement which obligates you to submit a quarterly report on forms supplied and pay fees to your local district office. Fees are paid for each performance and the amount is based on audience size and ticket price. Here are some typical examples:
No. However, in order to lawfully perform copyrighted music in the ASCAP repertory publicly, permission is required from either ASCAP or the members whose works are to be performed. If you do not take an ASCAP license and infringe copyright, your organization and each individual responsible for an unauthorized performance of a copyrighted musical composition could be sued and the Copyright Law provides for an injunction against further infringements, damage costs and in the court’s discretion, a reasonable attorney’s fee. Readers’ Questions Answered (Questions have been edited to avoid duplication) Question - Should we be paying for every public performance? How about our District or International Big Sings? What about performance of the American or Canadian National Anthem? Answer - The Law states that a fee must be paid for each performance of copyrighted music. Our anthems are copyrighted pieces. Question - Is each chorus required to meet requirements and obligations on their own or do we work through Int’l? Are forms available? Answer - For about a decade AMCA and their lawyers attempted to arrive at an umbrella agreement with ASCAP that would include a reasonable annual fee for the performance of copyrighted music and a workable method for reporting and collecting it. We were unsuccessful and concluded that it would be necessary for our member choruses to individually respond to ASCAP when approached to sign an agreement. Forms are available from your local ASCAP office or write to their head office at: American Society of Composers, Authors and Publishers - One Lincoln Plaza, New York, NY 10023. Question - I thought purchase of the music implied permission to perform it? Answer - Purchase of sheet music does not give you the right to perform or record it without the permission of the copyright owners. Question - Where does AMCA stand in regard to organizations such as Napster and other music sharing systems? Answer - To my knowledge, AMCA has had no discussions on Napster, hence has taken no position. This is a personal decision in my view. Question - How can someone find out if a piece of music is still covered under copyright, or if the copyright has expired? Answer - Works created after January 1, 1978 will be protected for the life of the composer (author) plus 50 years. Copyrights in effect on that date, if renewed, will continue for 75 years from the date copyright was originally secured. Those works in their initial 28-year period of copyright on January 1, 1978 can be renewed for an additional 47 years, while the copyright of works in their renewal term on that date were automatically extended for an additional 19 years. On October 7, 1998, both the House and the Senate passed the “Sonny Bono Copyright Term Extension Act, extending the term of copyright protection by another 20 years. The legislation purports to cover even works already in existence. If you would like to learn more on this legislation , the issues and the opposition to the extension and view web sites promoting the Public Domain, visit “Opposing Copyright Extension” at http://www.public.asu.edu/~dkarjala/index.html Further, I would suggest that you visit the “Copyright Resource Center” at http://www.mpa.org/crc.html. There you will find a “Copyright Search Centre” which provides a step-by-step guide to researching the copyright holder or publisher of a piece of music. This is a new service provided by the Music Publishers’ Association which I have not explored fully. Also, on this site you can print off the forms for obtaining permission from the publisher to make copies of out-of-print music. Question - Hypothetically, can a song that was recorded by one of our AMCA clubs be uploaded to somewhere such as napster? What are the circumstances if the music copyright has or has not expired? Answer - The whole subject of electronic copyright is in its infant stage and I admit to not having followed developments in this fast changing area. Perhaps another of our readers might wish to comment on your questions. My one comment would be that the AMCA club paid a mechanical fee to produce a set number of copies. This, in my opinion, does not give permission to place a copy where others can reproduce it without payment of a fee to the copyright owners. Question - Recently appointed the music librarian of a chorus, a reader (who’s chorus is not a member of our organization) asks: It is obvious to me that our chorus has not been following the guidelines presented in your (Part One) article. If I try to make our chorus legal by filling out all the forms to get permission to perform the copyrighted works, will that cause the Copyright Infringement Dept. or ASCAP to investigate us and fine us for not coming forward sooner? Answer - I assume that you are not referring to photocopied music residing in your music files. If you were, then the right thing to do would be to purchase copies of the music and throw out the illegal photocopies. However, you did ask about “performance” which is another matter. It would be irresponsible of me to offer you advice on this matter, I suggest that you consult a copyright attorney with your concerns in this regard. If I have not answered all of your questions fully, I apologize. You may wish to explore the many good reference sites listed in these articles on Copyright where you will find much good information on the topics discussed. Please take the time to react to this column by clicking on Make a Comment. View Feedback | Make A Comment |
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This column is planned as a regular feature and will be written monthly by the Executive Secretary.
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