Gov't Access Channel & Music Copyright

[Seth Bloombaum]

Lots of good info here!

I do disagree on one point made above - performance rights do exist. A performer could bring an action if the terms of their contract with the promoter have been violated by that promoter allowing creation of a recording for distribution that is outside of the performer's contract.

I feel we've been missing a critical bit of info. How does this "government access channel" get distributed? Presumably, by a cable operator. This cable co. would have info on what level of clearance and license is needed for programming they distribute. They may be participating in the ASCAP/BMI pools, if so, and if performers/promoters agree, problem solved.

In this, I'm thinking of a cable operator like a broadcast station. The ASCAP/BMI agreement covers use of music in programming. If my program is broadcast, the station's license covers the music I included.

I'm not an attorney, nor qualified to offer legal advice.

[Steve House]

Originally Posted by Seth Bloombaum

...
I feel we've been missing a critical bit of info. How does this "government access channel" get distributed? Presumably, by a cable operator. This cable co. would have info on what level of clearance and license is needed for programming they distribute. They may be participating in the ASCAP/BMI pools, if so, and if performers/promoters agree, problem solved.

..

The ASCAP blanket licenses still don't allow for the music to be used in a video of the performance. The program producer still needs to obtain the sync licenses for all the music used in the show, THEN the ASCAP etc performance licenses kick in for the royalty payments due from the broadcaster when the show is actually broadcast.

[Seth Bloombaum]

Not sure if we're fully communicating here.

Compositions license from ASCP/BMI as part of an annual blanket.

Performance as part of agreement between performers, promoter, and program producer (gov't access channel).

There is no record company involved, there are no other rights beyond composition and performance, as I understand it.

???

I'm not an attorney, and am not qualified to give legal advice.

[Greg Miller]

Deeper and deeper, with no end in sight. Lloyd Bridges could never handle this stuff. (No disrespect intended to anyone posting here; disrespect intended only to the Draconian Millennium Copyright Law.)

Give me ohms and decibels any day.

And let the laywer jokes begin!

[Steve House]

Originally Posted by Seth Bloombaum

Not sure if we're fully communicating here.

Compositions license from ASCP/BMI as part of an annual blanket.

Performance as part of agreement between performers, promoter, and program producer (gov't access channel).

There is no record company involved, there are no other rights beyond composition and performance, as I understand it.

???

I'm not an attorney, and am not qualified to give legal advice.

The composition itself is NOT licensed as part of the ASCAP agreement ... a public PERFORMANCE of the composition in that location is what is licensed. No other rights or usage of the composition is covered by he license agreement. Thus the permission for a public performance of a composition, such as granted under the blanket ASCAP/BMI license of the venue where the performance takes place, does not include a license allowing for taping or filming of the performance of the composition. For any composition to be audible in any film or video, even a film or video of an otherwise duly licensed performance, a sync license allowing the music to be incorporated into the video along with the images must also be obtained from the copyright owner. In the case of a video of a public performance, the sync license is in addition to the performance license for the original performance itself. Then each time the film or video is seen by the public, an additional performance royalty on the music, covered under the broadcaster's blanket license, is also due. If you made an audio recording of the concert, the venue's blanket performance license would not cover you if you wished to burn that recording to a CD and sell it at retail - you'd need additional licenses, such as a mechanical if it's a cover song, for that commercial use of the music. Same thing with a video of the performance - you can shoot but you need additional licenses to actually do anything with the video.

This is a frequent problem with the performance licenses for theatrical plays such as those put on by school drama groups. There the license document will usually spell out that videotaping of the performances for any purpose is expressly prohibited. Those prohibitions are actually just a re-statement of what the law says anyway - the default is you can't tape a performance without further licenses. The ASCAP blanket licenses for music similarly do not include any other rights beyond the right of a public performance in that location or on that broadcast station.

The bottom line is each and every specific incidence where a composition is heard requires a license from the composition's copyright owner. Performing it on-stage is one use. Performing it on a different stage down the street is another use. Placing the recording on a CD of the performance and selling the CD is another use. Recording it on tape and playing the tape on the radio is another use. Playing the tape on the telephone as music-on-hold is another use. Converting the recording to an MP3 and using it as a ring-tone is another use. Recording the audio as part of a video tape of the perormance is another use. Playing that videotape on the local cable channel is yet another use. The publisher is entitled to a taste of all of those uses.

I am not a lawyer ... I don't even play one on TV.

[Greg Miller]

OK, the local laundromat has a video security system. A customer comes in with his guitar, and starts to practice while he's washing his underwear. He sings a few Beatles songs. There are some other customers in the laundromat.

1.) Does the guitarist need to pay royalties or licensing fees so he can legally sing while he's doing his laundry?

2.) Does the laundromat owner need to obtain sync rights so that the security tape won't be in violation of DMCA? What if he later has to show the tape in court... does that constitute a "public performance"?

3.) Since Michael Jackson bought the rights to the Beatles songs, will he (Michael Jackson) want to check the guy's underwear? (Oh, wait, Michael left the planet... phew... we can skip this question.)

I am so glad I'm not a lawyer.

(Please forgive me, guys, I just can't help commenting on the infinite absurdity of this convoluted mess. It is actually good to know this stuff and to keep it in mind. I'm sure if I were a copyright holder I'd have my greedy little paws out there for every possible cent. But it really seems absurd that parents can't legally tape "little Johnny's" high school play or band performance for their own personal archives.)

[Steve House]

Originally Posted by Greg Miller

OK, the local laundromat has a video security system. A customer comes in with his guitar, and starts to practice while he's washing his underwear. He sings a few Beatles songs. There are some other customers in the laundromat.

1.) Does the guitarist need to pay royalties or licensing fees so he can legally sing while he's doing his laundry?

If he's simply playing for his own pleasure and the others in the laundromat just happen to overhear, no. But if he leaves his case open on the floor, busking for donations so he can pay for his laundry, that's a commercial use of the music and legally he should be paying royalties on any music he didn't compose himself.

2.) Does the laundromat owner need to obtain sync rights so that the security tape won't be in violation of DMCA What if he later has to show the tape in court... does that constitute a "public performance"?

The security tape would be an "incidental use" of the music - the fact music is audible is incdental to the purpose of making the tape and not germain to its content - and would not require licensing. It would be a public performance in the courtroom only if it was being played to entertain the spectators while the attorneys were meeting with the judge in sidebar.

...(Please forgive me, guys, I just can't help commenting on the infinite absurdity of this convoluted mess. It is actually good to know this stuff and to keep it in mind. I'm sure if I were a copyright holder I'd have my greedy little paws out there for every possible cent. But it really seems absurd that parents can't legally tape "little Johnny's" high school play or band performance for their own personal archives.)

In some cases the license might allow parents could tape for their own archives ... what would be almost universally prohibited AFAIK is for a third-party videographer, be he professional or amateur, to tape the performance and then sell the tapes to the parents. That's without question a commercial exploitation of the intellectual property. It's incredibly easy for an occasional part-time shooter or sole proprietor business owner to fail to realize that as soon as any money changes hands, his small business, even a once or twice a month hobby business, has to operate under the same copyright rules and regulations as do the Hollywood studios and broadcast networks.

[Greg Miller]

OK, Steve, thanks for your answers, even to some questions that were asked partially in jest.

Obviously you have given this a lot of thought and have it pretty well under your belt.

To go a little further...

What if a small musical group is performing their own versions of some folk songs. To make it more interesting... the songs are their own (paper) transcriptions of old folk songs from another culture. It's a free, public performance. Suppose a videographer (or audiographer) records the performance, on his own initiative, with prior consent of the performers. No money (or other consideration) changes hands. What's the situation when he posts that video (or audio) recording on YouTube?

[Seth Bloombaum]

I believe that much of the discussion above is inaccurate, mostly as relates to the blanket ASCAP/BMI license paid by TV stations, and what that license allows. When it comes to broadcasts that fall under this license agreement, I understand it to be a much simpler set of issues than other forms of public performance and distribution, such as theatrical, feature film, film festival, etc.

But I won't argue it further, it's pointless. The original poster would do well to kick this up the chain to counsel for his agency. I suppose the one thing we do all agree on is that a half-hour or more of concert coverage is unlikely to be seen as fair-use under the news exemption. Settling his issue is important, I've known of people who've lost their jobs by being casual about use of copyrighted music.

I am not an attorney, and am not qualified to offer legal advice.

[Steve House]

Originally Posted by Seth Bloombaum

I believe that much of the discussion above is inaccurate, mostly as relates to the blanket ASCAP/BMI license paid by TV stations, and what that license allows. When it comes to broadcasts that fall under this license agreement, I understand it to be a much simpler set of issues than other forms of public performance and distribution, such as theatrical, feature film, film festival, etc.
....

Go read the ASCAP website about what their blanket licenses do and do not cover. They permit a radio or TV station to broadcast a film or videotape containing music but they do not give the producer of the program the initial licenses required to incorporate the music in his show in the first place. Those are separate licenses, the sync licenses that are necessary for the creation of the videotape. Then when the finished show is delivered to the broadcaster, the broadcaster's blanket license clicks in to cover the royalties that are due each time the show is run. This is why one of the usual deliverables for a program is a cue sheet that lists every cut of music in the show, its location and running time, the publisher of the song, and the rights society the publisher belongs to.

[Richard Crowley]

@Mr. Bloombaum, you seem to have more faith in the "blanket ASCAP/BMI license paid by TV stations" than they warrant. Even if a TV station has proper blanket licenses in place, that only covers the "public performance" caused by the TV station airing the show. As Mr. House says, It does NOT cover the "sync license" needed by the producer of the program to include the music in the first place. (Or, for that matter the recording performance releases from the musicians for the production recording.)

Furthermore, the chances that the access channel, or even the distributing cable company has a proper blanket license seems exceedingly unlikely. Cable/satellite companies are only carriers and not "broadcasters".

@Mr. Miller. We are assuming (1) The performers actually own the rights to the compositions. (2) The performers created the "arrangements" from "public domain" music ("old folk songs from another culture"). But remember that we don't know what "old" means, or how that relates to the copyright laws (including the definition of "public domain") of that "other culture". So it is not clear that they had the legal right to transcribe, arrange and perform that music.

We also don't know what that "prior consent of the performers" covered. Presumably, at the time it was only for the videographer's private amusement, in which case he wouldn't need consent of anyone. However, as soon as the videographer performs his own "public performance" by showing the video at his saturday-night party, or posts it online, he has violated the rights of the composers/performers unless he has specific release/license from the copyright owners for that type of use.

Remember that ASCAP and BMI sent people out to mom-n-pop restaurants and flower shops to extort license fees for "public performance" for simply having an audible radio playing in the premises. If you go out to the downtown areas of major cities you will see little stickers on front windows and doors attesting to the purchase of an ASCAP or BMI license for the "background music".

[Seth Bloombaum]

I've been trying to keep out of this thread since I don't have much to add to what I've tried to get across above, but... one more shot.

Originally Posted by Richard Crowley

@Mr. Bloombaum, you seem to have more faith in the "blanket ASCAP/BMI license paid by TV stations" than they warrant. Even if a TV station has proper blanket licenses in place, that only covers the "public performance" caused by the TV station airing the show. As Mr. House says, It does NOT cover the "sync license" needed by the producer of the program to include the music in the first place. (Or, for that matter the recording performance releases from the musicians for the production recording.)...

This is probably the heart of the issue. Does a program broadcast on a TV station covered by the blanket ASCAP/BMI license require an additional license for synchronization?

In my experience in several years at a TV station, no, no additional license, not for programming. (Promotions and commercials are different.) Please see ASCAP Licensing: Television FAQ for more information on this. This FAQ for TV and Cable/Satellite licensees seems to make clear that a synch license is not required for programming, that licensees are covered for music composed by member composers and/or published by member publishers.

However... The synchronization rights that may be owned by a performer or record company...

Originally Posted by Richard Crowley

..(Or, for that matter the recording performance releases from the musicians for the production recording.)...

As Richard points out, the performance rights are another matter - quite right! And, I addressed this:

Originally Posted by Seth Bloombaum

...performance rights do exist. A performer could bring an action if the terms of their contract with the promoter have been violated by that promoter allowing creation of a recording for distribution that is outside of the performer's contract...

and,

Originally Posted by Seth Bloombaum

...Compositions license from ASCP/BMI as part of an annual blanket.

Performance as part of agreement between performers, promoter, and program producer (gov't access channel).

There is no record company involved, there are no other rights beyond composition and performance, as I understand it...

There's a fundamental misunderstanding about copyright, that we can't use commercial music without obtaining synch rights. As with most such misunderstandings, there's a (rather large) kernel of truth here. I can do whatever I want with commercial music for my own private purposes. The copyright of an author or performer (or possibly as assigned to a publisher or record company) comes into force when I publicly perform or distribute.

For the original poster's situation, "When I perform or distribute" means when broadcast. IF the cable co. is a signatory license holder, that does cover all rights held by ASCAP member composers and/or publishers, for that cable operator's program broadcasts only, including synch.

Performers have rights too, that may be covered by contracts with Promoters, or may not. A Promoter might have sufficient agreements in place to cover Performer's rights for this intended broadcast, or may not.

OK, now I'm repeating myself. I'm really gonna' try to not add to this thread further. As Steve suggested above, please do check ASCAP's TV FAQ.

PS. Usage reporting by blanket licensed stations is for the purposes of helping ASCAP determine how they split the net receipts to composers and publishers. This data is aggregated with all other stations' for this purpose, as I understand it. TV stations want to see our cue sheets so that they can do this, and, confirm that included compositions are by ASCAP-represented composers and publishers, or, licensed separately.

PPS. I know we've all had it drummed into our heads that synch is an important and expensive license for us to obtain for our works. It is!

I am not an attorney, and am not qualified to offer legal advice. This information is general. Your specific situation may be different.

[Greg Miller]

Originally Posted by Richard Crowley

Remember that ASCAP and BMI sent people out to mom-n-pop restaurants and flower shops to extort license fees for "public performance" for simply having an audible radio playing in the premises.

Yes, indeed. I've read those draconian extortive regulations. It depends on the size of the shop, how many loudspeakers are in use, whether the radio is "for the employees' benefit" or for benefit of the customers, etc.

If you sing the "Happy Birthday" song in a restaurant (or other public place), you should pay for the privilege because it's still under copyright, reportedly bringing in $2 million yearly. That's why restaurants sing some other song (e.g. the words "happy birthday" set to the Wm. Tell Overture) when they bring out your cake.


Q. What do you call a lawyer up to his neck in concrete?
A. Not enough concrete.

[Steve House]

Seth, you are correct in that the concert promoter and the TV broadcaster do not need to worry about a sync licenses; the licensing for their activities using music is covered by their various ASCAP licenses. If the TV station was doing a live broadcast of musicans in their studio, their ASCAP licenses would certainly cover the performance rights. But something I think you're overlooking is the case of the independent program producer who films a concert and makes it into a TV program which he then markets to various broadcasters. I think that is the situation the OP faces. Although it sounds like the show is pre-sold to a single boradcaster, that doesn't really make any difference. He is a filmmaker making a film about a concert and as such would need to obtain sync licenses for all the music he includes, no matter how the resulting film is going to be exhibited, whether in a theatre or via broadcast. His situation is exactly the same as any other program producer making a film about anything. A film about a concert is no different from making a film that's a drama or a comedy or a documentary - the music rights for all the music used in the show needs to be cleared and licensed by the program producer. The ASCAP performance licensing of the venue that exhibits the show doesn't enter the picture until the resulting film is actually broadcast or exhibited. Note that licenses are two-party agreements and not transferrable - the independent program producer can't ride on the coat-tails of either the concert promoter or the TV station that is his customer - he is not a party to the agreements expressed in either of their licenses and they can't give him permission to include music in his show under the umbrella of their licensing. The independent program producer needs to license the incorporation of the music into the program and then in addition, the broadcaster's performance license is divi'ed up by ASCAP to cover the royalties that are due for each and every time the show is run. The ASCAP license only covers each instance of the broadcasting of the program, not the actual making of the program by the independent producer.

Note that the page the TV FAQ link you provided includes the text "The ASCAP license does not provide the right to record copyrighted music" and videotaping a concert would clearly be recording the performance of the music.

I might also mention that cable companies do not need ASCAP licensing on the programs they distribute because those programs are already licensed by the network or station originating the broadcast, but the cable companies do need ASCAP licenses for the music in any programs that they themselves originate such as through their community access channels.

[Jim Andrada]

Well, there's another way around the "Happy Birthday" dilemma as it turns out that the almost identical song "Good Morning Dear Teacher" is NOT in copyright.

How "almost identical"? Well instead of repeating the same note (Hap - Pee. long short) there is just a longer single note - but it's the same note. So if you just play "Happy" instead of Hap-Pee you're in the clear re the music. Re the words - well in the case of a live group just singing it, should be no problem. Re a recording - who knows?

Which I think sums up the Draconian Millenium bill in two words.

Just don't "PEE" when you shouldn't, so to speak.