Public domain music vs performance rights

[Justin Morgan]

I want to use a piece of classical music for one of my shorts. The composer died over 75 years ago (therefore under British copyright the music is now in the public domain). I know that there is another thing called 'performance rights' which means that you have to pay the people that own the copyright on the performance of the piece ie the people that own a particular recording of a particular orchestra's music.

My question is that certain pieces of classical music have been performed by SO MANY different orchestras on many many different recordings would anyone be able to trace a particular piece and say that that is THEIR version. If this is the case does slightly altering/manipulating the piece help with disguising it eg slowing down the music a bit. Would people still be able to tell which performance/recording it was?

[Mike Rehmus]

Justin, the only possible answer to that question on this site has to be the advice that you observe everyone's copyrights.

Two reasons to do so.

1. Many of us make our living by creating copyrighted material. I get quite angry when someone uses my material without compensating me or at least asking permission. I do go after people who are obviously trying to avoid payment.

2. Any answer other than, 'don't do it,' leaves the owner of this Forum open to legal problems.

To answer your question about 'fingerprinting' music. It is easy to measure any digital file and to generate a fingerprint and then compare it against other possible copyright violators.

Frequently one can get permission to use portions or entire pieces just by asking the owners. Or the cost can be very low.

I received permission to use 'Bad Boys' for a police centenial video for no cost. Lee Greenwood's ' Proud to be an American,' cost me $100 for another limited distribution video.

$100 is the equivalent of a lot of CD sales.

[Rick Bravo]

While I agree with most of Mike's post, there are other alternatives to your situation other than "don't do it".

You can look up the Fair Use laws at http://fairuse.stanford.edu

This post does not open this site or the owner to liability as the laws that are referred to with regard to fair use are a matter of public record and not one of opinion.

There are different mitigating circumstance under which you can use copyrighted material. This is a pretty comprehensive compilation of laws and case studies covering this very topic.

As with anything having to do with the law, some of the criteria is subject to "interpretation" and can become a problem if you try to push the envelope too far.

Make sure that whatever decision you make, you are honest with yourself about your intent. In other words, if it feels wrong, it probably is wrong and you shouldn't do it.


Stay safe and good luck, RB

[Paul Tauger]

Mike and Rick are pretty much right on the money.

Fair Use Doctrine
---------------------

Two points about fair use doctrine:

1. Fair use is a defense to infringement, as opposed to a compulsory license or other right, meaning you won't know whether a particular use comes within fair use until you are actually sued and raise fair use as a defense.

2. Fair use is an equitable doctrine, meaning that its application is be fact-specific and determined by a judge. The four factors recited in the fair use statute are non-dispositive and considered merely guidelines. This makes application of fair use more than a little arbitrary, and something that is very difficult for a non-lawyer to evaluate, except in the most obvious cases.

Will "disguising" the music work?
----------------------------------------

If this is the case does slightly altering/manipulating the piece help with disguising it eg slowing down the music a bit. Would people still be able to tell which performance/recording it was?

Okay, this isn't a short answer.

In the U.S., the test for copyright infringement involves of two prongs: a plaintiff most prove ownership of a valid copyright and copying. Copying, unless it can be proven directly (which is rare), is proven circumstantially by another two-part test: "access," i.e. did the defendant have access to the original work, and "substantial similarity," meaning, is the accused work is similar enough to the original to infer copying? Access and substantial similarity are evaluated on a sliding scale -- the more access to the original, the less substantial similarity must be proven, and vice versa. In your hypothetical, access is easy to prove -- the original work is commercially available at any record store. Accordingly, the quantum of proof necessary to establish substantial similarity is less.

Substantial similarity in most circuits (and, notably, the 9th and the 2nd, which include New York and California) is evaluated by yet another 2-prong test: subjective similarity and objective similarity. The objective component is proven through expert witness analysis, e.g. measurement of the relative duration of notes, the orchestration employed, etc. Subjective similarity is simply an inquiry as to whether a reasonably prudent person would, upon hearing the original and the accused work, think that the latter was copied from the former.

This is the analysis that any court of law would employ in determining whether you had infringed the copyright in the original recording.

In your case, merely slowing down the work a bit would not prevent a finding of subjective similarity -- if it sounds pretty much the same, then it is subjectively similar. You'd also be surprised at the lengths plaintiffs will go to establish objective similarity. When I litigate copyright infringement claims, I routinely hire engineers and other experts who perform technically elaborate analyses to establish the objective component.

So, simply disguising the work by altering it a bit will not protect you. It all comes down to how interested the copyright owner is in hanging you out to dry.

A Suggestion for an Alternative Solution
----------------------------------------------------

Finally, here's a nothing-to-do-with-the-law suggestion. I've been faced with the same issues in my videos vis-a-vis using commonly-recorded public-domain classical music pieces. What I finally decided to do was create a MIDI file from the _public_domain_ orchestrations (you have to be careful, since some orchestrations are actually derivative works that may, themselves, be protected by copyright). I have a couple of EMU Proteus digital sample players that can create a very convincing "real" orchestra sound -- you've probably heard them, or something similar, on most dramatic television shows. As long as the orchestration, as well as the underlying music, is public domain, you won't infringe anyone's rights this way. I'm planning to use the "Tauger Philharmonic" to score a couple of my videos.

If you don't have the necessary keyboard chops to enter the music yourself, there are relatively inexpensive programs that can scan sheet music and convert it to a MIDI file. The Proteus boxes that I use were in the $500 range when I bought them about 10 years ago. I'm sure you could find them, or more up-to-date equivalents, on eBay for very little money.

[Glenn Chan]

I don't this fair use applies here (it's not comment, criticism, or parody). The key thing here is the copyright on the *performance* and recording of a non-copyrighted work. Clearly, you don't have the rights to these. Technically, you can get sued by the orchestra who performed the piece. Realistically, you probably won't!***

***If you plan on making money from your short, you should get clearance to the performance of the music. A distributor will not be pleased if your music isn't cleared since it could delay the release of the film (and critical acclaim will have died out by the time your film comes out). For a classical piece with multiple performances and no copyright holder to the composition it wouldn't take as long as other pieces of music to clear. So you could risk not clearing it until it looks likely you can make money. However most shorts do not make money and are rarely commercially viable.

Another reason to clear music would be if festivals demand that your music be cleared before they show your film.

[Mike Rehmus]

For most of us, the real bottom line is 'How Rich do you Feel?'

Right or wrong, if you get sued, it will cost a packet just to defend yourself. Money you have to pay out of your own pocket.

Truth is, it's your lawyers against their lawyers. Foks with the biggest guns usually win.

Fair Use is so limited (I work at a college that pays into the copyright license deal) that except for teaching purposes, the material is unavailable for other use.

Trust me. It is less expensive and faster to just get the license if you cannot find a needle-drop or royalty-free version of the music. I'd be surprised if you could not.

[Justin Morgan]

Wow - thanks for all the information.

Lots for me to think about there...

What's a 'needle-drop'?

[John Locke]

<<I received permission to use 'Bad Boys' for a police centenial video for no cost. Lee Greenwood's ' Proud to be an American,' cost me $100 for another limited distribution video.>>

Mike...any tips on just how you did that? I've tried several times to get permission from different places for music...and they never even respond.

[Mike Rehmus]

I called the office manager for Inner Circle and asked. She contacted the group who gave me permission.

I specifically discussed a limited distribution 200 copies to members of the Vallejo Police Department.

For Lee Greenwood, I called the Music Company on the advice of his office. I had a very limited distribution of his song of only 10 ciopies to the Cheif, the Mayor and a few other officials in Vallejo.

It took about 3 weeks in both instances.

Most music comes in some sort of wrapper with a phone number or some place to start calling. It does take persistance.

I do prefer royalty-free or needle-drop music when I can. I only go after the name stuff when the client demands it.

[Rick Bravo]

Needle drop is exactly what it sounds like. You pay a pre-set fee every time the "needle drops", needle, of course is refering to when the norm was using vinyl discs with a stylus as a conduit for the music.

Example: The fee is $10 per "drop", if you use fifteen second at the begining of the song then cut out of it and then use another 10 seconds somewhere else, you pay for every start-stop sequence, or in this case $20.

We have been using Associated Production Music (APM) for the last 12 years with very good results. They have thousands of discs in their inventory and if you watch any TV or listen to radio, you have heard APM cuts. Another library we have contracted with and will probably be looking at again is Killer Tracks.

There are many music libraries out there, some you can negotiate a usage contract with and some of them you can buy outright without having to worry about licensing fees.

Using services like these takes all the guesswork out of your music usage and although it may not be Led Zeppelin or Linkin Park there are many suitable cuts out there that are being used in major motion pictures and commercials that air daily.

RB

[Larry Vaughn]

I was under the impression that 2 rights are involved. The author of the music is entitled to get paid when his music is performed by a band, for example. And the band is entitled to get paid if someone uses their recording in an ad for example. But everything goes back to the owner of the rights for the original music composition. Am I wrong?

How do I find out who actually owns what rights?

So, I have You Are So Beautiful, sung and recorded by a local band, a client wants to use it in a commercial. I'm the editor only.

What rights does my client need, and do I need any myself, as I am billing her for the edit.

[Steve House]

Originally Posted by Larry Vaughn

I was under the impression that 2 rights are involved. The author of the music is entitled to get paid when his music is performed by a band, for example. And the band is entitled to get paid if someone uses their recording in an ad for example. But everything goes back to the owner of the rights for the original music composition. Am I wrong?

How do I find out who actually owns what rights?

So, I have You Are So Beautiful, sung and recorded by a local band, a client wants to use it in a commercial. I'm the editor only.

What rights does my client need, and do I need any myself, as I am billing her for the edit.

Music is copyrighted by the persons who created and published the music and lyrics; recordings of music have a separate copyright owned by the person or company that created the recording. Unless they composed the song themselves, the band rarely would own the copyright or be able to license its use. You (or your client, depends on who's really creating the final video) need to acquire a synchronization license from the owners of the copyright to the music itself in order to use it at all, regardless of who records it. What further licenses you need are determined by how that local band was recorded ... if it was you or your client who recorded them, all you need is their performance releases for their appearance, there's nothing about music copyright involved since you (probably) already own the copyright to the recording. But if you are using an pre-existing recording of them, you need a Master Use license from whoever owns the original recording of their performance, probably the record label that recorded it.

[Jim Andrada]

Am I correct in assuming that I'm OK if I personally perform the classical work from a public domain or "Urtext" (Original text) edition? The Urtext editions are available from several publishers and as I understand it are the unedited versions of what are believed to be the original scores - no fingering, comments, etc etc that wasn't written by the composer himself.

OK - I admit it, I don't play well enough myself, but my wife was a performing concert pianist for many years and she's certainly capable of playing most of the classical piano literature well enough to make a very fine sound track. She also plays a mean accordion!

By the way, I've tried several of the programs that purport to scan printed music and have been sadly disappointed by all of them and finally concluded that it was faster to key the music into Sibelius or Finale myself

[Steve House]

Originally Posted by Jim Andrada

Am I correct in assuming that I'm OK if I personally perform the classical work from a public domain or "Urtext" (Original text) edition? The Urtext editions are available from several publishers and as I understand it are the unedited versions of what are believed to be the original scores - no fingering, comments, etc etc that wasn't written by the composer himself.

OK - I admit it, I don't play well enough myself, but my wife was a performing concert pianist for many years and she's certainly capable of playing most of the classical piano literature well enough to make a very fine sound track. She also plays a mean accordion!

By the way, I've tried several of the programs that purport to scan printed music and have been sadly disappointed by all of them and finally concluded that it was faster to key the music into Sibelius or Finale myself

AFAIK, if the music is out of copyright then knock your socks off. The magic date is 1923 - the copyright has expired on any music published before that date.

FYI, others reading this, we must be clear - the copyright on MUSIC (words and melody) and the copyright on audio RECORDINGS of music are two different critters. While the Stephen Foster song "Beautiful Dreamer" is (AFAIK) now in the public domain, a recording of a performance of it made on an Edison cylinder back in the 1890's would still be in copyright and copying it into your soundtrack would require licensing.