Legality?

[Trevor B.]

Originally Posted by Doug Young

But remember, as a musician, you don't have to pay to *perform* anything. The venue is responsible. You can play anything you want, anywhere you want. If it's a public place, they might need to buy a license, but it has nothing to do with the musician. (There are venues that have decided they won't pay the license and may only agree to have you play there if you commit to not playing any licensed material - but that's between you and the venue)

I discovered a couple of years ago, to my absolute amazement, that our local Cable TV station refuses to buy a license for copyrighted music. It simply had not occurred to me that this was a possibility. I had to drop my instrumental arrangement of a Canadian folk classic and come up with a replacement at the last minute for a show I'd been invited to perform on. The take away from this incident? Never assume the venue/sponsor is operating under a copyrighted music license! It was a classic illustration of the old assume makes an "***" of '"u" and "me" ("me" a least in this case).

[Trevor B.]

Oops! Looks like I inadvertently prompted an automatic censor. Please accept my apology. No ill-intent was intended.

[Doug Young]

Originally Posted by Trevor B.

I discovered a couple of years ago, to my absolute amazement, that our local Cable TV station refuses to buy a license for copyrighted music. It simply had not occurred to me that this was a possibility. I had to drop my instrumental arrangement of a Canadian folk classic and come up with a replacement at the last minute for a show I'd been invited to perform on. The take away from this incident? Never assume the venue/sponsor is operating under a copyrighted music license! It was a classic illustration of the old assume makes an "***" of '"u" and "me" ("me" a least in this case).

Clearing rights for TV shows, etc, is yet another whole different game, I believe

But if you show up at the local coffee house and play a cover, the venue is responsible for the license. Even if the venue told you not to play it, ASCAP/BMI's beef will be with the venue. The venue may take it up with you, of course, but that's between you and the venue.

It is nice to ask venues if they are licensed, many have no idea about this stuff, until someone comes knocking with a bill in hand.

[MikeBmusic]

Originally Posted by amyFB

After reading a bunch of stuff at the Harry Fox and ASCAP websites, my takeaway is to make sure we only play copyrighted cover tunes at PRIVATE events.

I say we take the time-honored tactic and FIND LOOPHOLES!

yours in tune,
amyFB

Even if its a private event, the venue has to have a license. If it's a house party where the host is charging an admission fee, they need a license too. they're unlikely to be found by the PRO agent if it is a non-regular thing, but one tool the PRO agents use is looking up bands that are known to do cover tunes, then looking for their gig listings on thier web sites, reverbnation, ads in local music papers, etc.

[Ty Ford]

What about that dynamic case of Warner Chapell and "Happy Birthday?"

http://variety.com/2013/biz/news/cou...ht-1200703048/

and, btw,

"Willful dishonesty? Have your ever told a white lie so as not to hurt a person's feelings, or to avoid an argument with a co-worker, friend or loved one?

I realize there is a technical, legal point in question here and I may be in the minority, but I fall on the side of common sense on this one and would burn the discs and take my chances."

Common sense? Really? I'm not letting you hold my wallet any time soon.

Regards,

Ty Ford

[Chicago Sandy]

We’re talking about several different things here. First and foremost, never confuse logic with the current state of the law.

Second, a truly private event--not open to the public, not publicized or advertised, no admission charged, no money changes hands--doesn’t require a PRO license. House concerts are a gray area--currently, a house concert series that is a member of Folk Alliance Int’l doesn’t require PRO licensure even if the artists are paid via donations, so long as it is not publicized and is “invitation-only.”

Third, as to the souvenir give-away CD, the difference might be one of scale. You burn your friend or relative a "mix-tape,” it’s considered “fair use” and no PRO licensure is involved. It’s not considered a copyright violation. But what if (as happened at a wedding I attended) the couple burns a mix CD of their favorite romantic tunes and hands it out as a party favor to, say, 30 guests plus the wedding party? Still considered a “gift,” but entering a gray area. Situation seems analagous to yours, in which you’re giving the nursing home residents a gift, a little something to remember you buy, right?

Not so fast. Remember the poster who speculated the PROs wouldn’t go after a nursing home? Surprise: BMI has what’s called a “health care facility” license rate: the greater of $4.66 per bed or $466/yr. This applies not just to nursing homes but hospitals and even doctors’ offices (yup, that TV set in the waiting room or radio station--other than Sirius/XM which has the PRO licenses built into the commercial subscription fee--counts as a “performance” even if it’s set to FOXNews or some trashy talk show like Jerry Springer or Maury Povich). If you’ve been wondering lately why those nursing home gigs are getting rarer, or why the fees they may be paying you are getting lower...well, if the facility has to pay at least $466 per PRO per year just to have a radio playing, how willing do you think they’ll be to pay entertainers? (Again, this is about “performance” royalties, not about the “mechanical” royalties for recording covers). And as many have pointed out, even if you perform only your own originals (and the facility has a strict originals-only policy), the PROs’ response is that a venue cannot absolutely ensure that no copyrighted covers ever get performed--and it is the venue, not the performer, who is liable for any infringement however inadvertent (such as an audience member singing “Happy Birthday to You” when a cupcake with a candle is delivered to the table).

Now, so long as the copyrighted tunes you covered had been commercially recorded by a non-copyright-holding cover artist before, and you are not substantially altering the compositions by parodying them or adding verses, you cannot be denied permission to record them--so long as you pay a mechanical royalty of 8.2 cents (currently) per copy MANUFACTURED (pressed or burned), not SOLD, either directly to the copyright-holder (if you do, keep copies of the check and the cover letter) or purchase the license from the Harry Fox Agency (in which case there’s a 500-copy minimum, but a lower rate for the 5001st and further copies--and a slightly higher rate if the song exceeds 10 min.). Note that the PRO doesn’t get involved--they exist only for performance and sync licenses. You might want to assuage your conscience by buying licenses (or negotiating a lower rate, stating that you are recording the songs as a gift--sometimes the copyright-holder may even waive the royalty, as the statute allows him to, in which case make sure you leave a paper trail).

In all probability, nobody will ever know if you go ahead and give away the cover CD as a gift...but all it takes is ONE report of an infringement to raise a red flag, and if proven the damages could run as high as $150K per incident. You never know whose feathers might get ruffled or even why. Remote possibility, but a possibility nonetheless.

BTW, I could charge my fellow indie artists a royalty for covering my songs in live performance, but I never do. Bread on the waters.....

Interesting point about “Happy Birthday to You.” I’d been under the impression that the song (commonly sung lyric as well as melody) was written by said sisters, and that the copyright was about to expire (computed by the length of time since the death of the later of the two women). Love to find out whatever happened to the suit.

[Ty Ford]

Sandy,

Nice one! A well crafted reply!

Regards,

Ty Ford

[815C]

Originally Posted by The Bard Rocks

To stay legal, you have 3 choices:

1) Use only Public Domain songs

+1

I just did a Christmas guitar album and purposely selected only Public Domain Songs for the album to avoid having to pay royalties. There are a lot of great Public Domain Christmas tunes out there.

And good for you for playing for the old timers - I know they appreciate that. That's what music is really all about!