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Recent headlines have brought the use of music on the Internet to the forefront, particularly the 261 copyright infringement lawsuits filed by the Recording Industry Association of America (RIAA) against some of the most active fans sharing songs on services like Kazaa. RIAA’s lawsuits are for downloading music illegally over the Internet. The rationale is “downloading songs is stealing money from the pockets of artists” because there are no royalties issued for the distribution of their recordings over the so-called peer-to-peer file-sharing networks.

In a related copyright issue, I have been promoting Web development for school music teachers since January, 2000, in this column. Among the things promoted are video and audio streaming so that teachers can share their music concerts with the parents and community that they serve. Audio streaming in particular is becoming very popular among music educators. But because of the legal issues of Internet licensing, it is important that this issue be explained in this installment so that licenses can be obtained from the appropriate parties when necessary. In preparation for this installment, I have been in correspondence with ASCAP, BMI and SESAC, which are the main music performing rights licensing agencies for the United States.

Music Copyright Laws

The United States Copyright Act grants the owner of a copyrighted musical work the exclusive right to perform it publicly. The legal definition of a performance is, “to transmit or otherwise communicate a performance or display of the work to the public, by any means of any device or process, whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times.” (U.S. Copyright Law, Title 17, Section 101).

In general, if you make performances of copyrighted music available for the general public via a Web site (whether in audio only or audio/video formats), you will need permission from the copyright owner to do so. The U.S. Copyright Act states that permission to perform a copyright must be obtained before the performance takes place. Important note: if the performance takes place on school grounds, it may not require the authorization of the copyright owner even though the transmission of that performance over the Internet may.

So if your school music groups ever perform on radio or television – such as at televised football games, etc. – copyright permission needs to be obtained before the event. Arrangers for college marching bands are well in tune with this process whenever their works are featured on a televised broadcast. In addition, the television or radio station already has the proper performance licenses in place (or should have). The band performs to the public at the stadium, the TV station performs it to whomever is hearing it via the TV. It is the broadcasters’ responsibility to obtain the proper performance license because they are the ones that transmit the broadcast to the public.

The law also covers Internet transmissions as well. There are two kinds of use on the Internet. First, non-interactive uses are essentially radio or television-style transmissions. Second, interactive uses are on-demand transmissions where a user can choose what to listen to or watch and when (there is still an unresolved dispute over whether limited user control of a radio or television-style transmission – e.g., the ability to skip songs, etc. – makes an otherwise non-interactive transmission an interactive transmission, which has important implications as you will see below).

In general, every Internet transmission of a musical work constitutes a public performance of that work. It is true that musical works written by songwriters or composers who died before 1922 are considered in the public domain, but where it gets a bit complicated is that most of the musical works that school music groups perform also have been arranged by contemporary arrangers who have died long after 1923. In consequence, the arrangements of music of the masters (Bach, Beethoven, Mozart, Brahms, Debussy, etc.), are probably still under copyright today because of the arrangement being performed. Thus, most, if not all, of the arrangements of musical works that school music groups perform today are still under copyright protection. Posting recordings of these works on one’s Web page is illegal without permission of the composer, publisher and/or music licensing agency. Usually, that also constitutes fees that need to be paid. To keep our readership well informed, I will attempt to clarify what should be done to protect your school and/or private Web site from investigation and possible lawsuit.

Copyright Law Clarified

Public domain is 70 years after the death of the composer, so works by Bach, Beethoven, Mozart, Wagner, etc., all are public domain. Their original arrangements can be performed by school music groups and posted on school Web sites for no charge or licensing. But works by George Gershwin, Charlie Parker, Miles Davis, John Williams, etc., are all under copyright and will therefore generally require a Web license to post any recording of their music. However, nothing is easy with copyright laws because each country has its own laws and duration of copyright. The 1922 date is for the U.S. only. In general, for many countries except the U.S. and Europe, copyright protection expires 50 years following the death of the composer. For the U.S. and Europe, the rule is 70 years following the death of the composer. There is an excellent Web site by Lolly Gasaway that has an easy-to-read table that really helps clarify copyright laws. The URL is: www.unc.edu/~unclng/public-d.htm. Anything first published in the U.S. in 1923 or more recently is still in copyright, and works published in 1922 or before can be assumed to be in public domain unless you are using an arrangement done after 1922. Confused? Again, go to the previous URL for some good illustrations and interpretations of the music copyright laws. Another viable alternative is to contact the publisher(s) directly.

Who Are The Guardians of Music Copyrights?

In the United States, we have three major music performing rights licensing agencies: ASCAP, BMI and SESAC. [Note: the Harry Fox Agency (www.harryfox.com) is another music licensing agency which, among other things, licenses the reproduction and distribution of music (e.g., to make and sell recordings or songs) under what is commonly referred to as mechanical licenses. The Harry Fox Agency does not currently have an online database listing all of the musical works that it represents.]

All three do Internet scanning and will eventually find your Web sites with music and will seek you out for proof of your licensing for published music that may still be under a copyright. BMI represents approximately 4.5 million musical works by more than 300,000 songwriters, composers and publishers in all areas of music: pop, country, rhythm & blues, rock, jazz, Latin, gospel and contemporary classical music. BMI operates as a not-for-profit organization with 80 cents of every dollar in 2002 being returned to the creative community.

ASCAP is the largest music licensing agency with membership of over 160,000 composers, songwriters, lyricists, and music publishers of every kind of music. Through agreements with affiliated international societies, ASCAP also represents hundreds of thousands of music creators worldwide. ASCAP is the only U.S. performing rights organization created and controlled by composers, songwriters and music publishers, with a Board of Directors elected by and from the membership. ASCAP is home to the greatest names in American music past and present – from Duke Ellington to Beck, from George Gershwin to Stevie Wonder, from Leonard Bernstein to Madonna, from Garth Brooks to Tito Puente, from Henry Mancini to James Horner – as well as thousands of writers in the earlier stages of their careers.

SESAC Inc. is a performing rights organization, with headquarters in Nashville and offices in New York, Los Angeles and London. When a songwriter or publisher affiliates with SESAC, SESAC then represents the right for that music to be played in public.

The Harry Fox Agency Inc. was established in 1927 as a musical copyright information source and licensing agency for the music industry. HFA currently represents more than 27,000 music publishers and is a licensing resource for the mechanical use of music reproduced in all formats and media.

Copyright Permission Procedures and Fees

Here are some step-by-step guidelines for obtaining copyright permission.

  • If you want to put some of your band/choir/orchestra performances on your school’s Web site, you have to get permission per the U.S. Copyright Law. Permission has to be obtained before you place the songs online because it’s the law.
  • There are three music licensing agencies that you’ll need to search (via database) for copyright information – or just contact the publisher directly.
  • If you are going to use recorded music (i.e. a CD that is owned by a record label), you’ll need a Sound Recording License that can be obtained throughwww.soundexchange.com.

All three of the primary music licensing agencies have online databases that list the copyright licensing contacts. Simply contact the music licensing agency or the composer/arranger/publisher directly and permission will probably be granted for the Internet posting with a contract and associated fees. URLs are: ASCAP (www.ascap.com), BMI (www.bmi.com), and SESAC (www.sesac.com). Each agency’s phone numbers and mailing addresses are also posted. Note: fees are not automatically assessed because Internet traffic could dictate the actual cost involved even if there are no sales. It certainly is not difficult to get copyright permission to post music from a licensing agency such as ASCAP, BMI, or SESAC. It is also possible to go directly to the composer’s/arranger’s estate if he is deceased or to the individual composer or the publisher for permission instead of the licensing contact. Contacting the publisher is certainly another efficient way of obtaining copyright Internet performance permission rights.

ASCAP has a minimum fee of $264 per year for non-interactive performances and a minimum fee of $312 per year for interactive music use. The fee is determined by the overall value of the music to the Web site, which is measured by revenue or traffic, whichever is greater. If your Web site does not have a digital counter that counts the hits to the media player, go to any Internet search engine and type in “free page counter.” There are many different sites that offer free page counters that you can put on the page that contains the music streaming. In this case, you would not get an exact number for those who actually clicked on the music stream, but this would be the next best thing (i.e. you would know how many visitors that particular page had). Note: it is not necessary to notate copyright information for music being performed over a website.

When the Digital Millennium Copyright Act (DMCA) was passed in 1998, it created a new Performance Royalty. This new royalty is in addition to the performance of the underlying copyright (the song) which is owned by songwriters and music publishers and licensed by ASCAP, SESAC and BMI. This new royalty is for the performance of the Sound Recording. A Sound Recording is the legal term for what most persons refer to as the “record.” This means that in addition to paying the songwriters for the performance of the song to the public, on the Internet you must pay the record company for the performance of the record. Other countries have a Sound Recording royalty in place for all types of public performance (whether it be at a skating rink, nightclub, hotel, retail store, TV or radio station, etc., as well as the Internet). In the United States however, only performances in the “digital space” require a license for the performance of the Sound Recording (record). Most schools will probably not have to deal with previously copyrighted recorded music, such as CDs, on their Web pages.

When I contacted individual publishers to see if their fee structures are similar or cheaper to what ASCAP and BMI offer, the publishers responded that they really needed to see one’s general Web site first to better determine how to most fairly assess the fees. Regardless of how you make the contacts to obtain Internet copyright permission, I like the online searching capabilities at ASCAP, BMI and SESAC to obtain all the copyright information and its contacts. The URLs for conducting swift online performance licensing searches can be done at:

ASCAP: www.ascap.com/ace 
BMI: www.bmi.com/home/asp
SESAC: www.sesac.com/licensing/ licensing1.asp

Procedures ‘After the Fact’

When SESAC comes across a Web site playing SESAC-affiliated songs without a license, the agency sends out a license and educational material on becoming licensees. Even though the copyright law states that you must get permission prior to the performance of copyrighted material, not many people know that. So the agencies will work with these people on becoming licensees at that point – instead of using lawsuits to make their points. If and when the music licensing organization contacts you, you will be given specific e-mail and/or phone contacts to consult with the SESAC, ASCAP and/or BMI representatives who can promptly and best answer your questions. Once contacted, you have really only two choices. First, remove the copyright-infringing recording and second, contact the music licensing agency about its fee structures. Litigations will eventually follow if you refuse to cooperate by keeping music without obtaining copyright permission. However, the fact is that no music licensing agency is going to sue a high school for putting up a band/orchestra/choir performance on its Web site. The agency will notify the director and offer him or her a license. If the director does not want the license, he or she will be asked to take the music down. What school system would allow the school to continue to infringe copyright laws after being notified? The school system’s lawyers would either make sure the licenses are obtained or order the director to take down the music. No legal action would need to be taken. However, if the music educator has a non-school Web site featuring students and music groups, litigations might eventually be forthcoming if there is no compliance to the copyright law.

Closing Comments

Internet licensing is a necessary item of business for music educators regardless of whether their Web sites have any sales options or not. The music belongs to the composer and/or the arranger as the music copyright law is very specific about the performance rights of the composer/arranger – including those found on the Internet. The process of using the Internet to search for the copyright holder information is the very best means of locating copyright information. If you have already posted music recordings without obtaining copyright permission: fear not, for the music licensing agency will work with you in making things right.

Good luck in posting musical performances of your school music groups. Your students and parents will thank you many times for making the efforts to have your ensemble recordings available for listening over the Internet.



 


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