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?

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

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).)

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.

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.

...

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.

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.

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.

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.

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.

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.

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, 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/business/media/23royalties.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.

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...

...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..

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.

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.

...
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.

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.

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!

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.

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.)

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.

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?

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.

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.

@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".

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.
@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 (http://www.ascap.com/licensing/tvcablesatellite/tvfaq.html) 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...
..(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:
...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,
...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 (http://www.ascap.com/licensing/tvcablesatellite/tvfaq.html).

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.

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.

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.

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.

[Response is to descriptions of objectionable content on public access channel, since deleted by Chris as detailed below]

Yes, but there are no laws against any of that. The FCC is for Broadcast only, and has no jurisdiction over cable, and anyway they're only charged with trying to make sure broadcasters act in the public interest. They only act if there's a complaint and all they can do is refuse to approve a renewal of a broadcast license. And even that's debatable -- technically, they have no authority over content. The Telecommunications act of 1934, which created the commission, only gives them the right to administer the allocation of frequencies and spectrum issues.

You can do whatever you want on cable. Any restrictions are purely business decisions.

Ah ha. I didn't realize the FCC had limits on its powers with what they have been doing the last several years ;)

Not to get too political, but it seems they don't realize it either....

[Response is to descriptions of objectionable content on public access channel, since deleted by Chris as detailed below]

The first amendment protects all speech, even odious stuff. Not just the stuff we agree with.

A privately owned channel has no obligation to air that stuff. But the Government can't tell you what you can say (with very limited exceptions -- "Fighting words," Yelling "Fire!" in a crowded theatre if there isn't actually a fire, etc).

This is veering into the political and I fear it will get removed, although I think this is a debate worth having.

I don't think we are getting political. We are just discussing the laws that public access channels must follow and what they are allowed to air.

I agree with you. Many people have the wrong idea about the First Amendment and exactly what it protects.

Well, after reading about Tampa's public access channel (TBCN), I wonder if there are ANY rules and laws our channel must follow...

In the case of TBCN aka 'Speak up Tampa Bay', I cannot believe they & the ACLU won the lawsuit forcing the county to fund ($350,000+/yr) this channel...

Steve, I can appreciate your frustration, however there are certain words and terms
used in your posts with which I do not want this site to be associated in Google
search results.

In other words, if something makes you cringe, don't post about it to this forum,
because most likely it makes me cringe as well. The descriptions in your two
posts involve subject matter that I don't want to see here. Please complain
about it elsewhere on the Web. Thanks for understanding.

Thread stays open... for now. This forum is intentionally limited to the subjects
of digital video content creation and technical Q&A -- nothing more than that.
It's none of this site's business if you saw something gross on cable access.
I'm not interested in that type of post for DV Info Net. Thanks again,

Sorry about that Chris. Won't happen again :)