There are many posts here at The Café that centre around "What song is this?", and that question is usually motivated by a magician's desire to use recorded music in his/her magical performance. In the past few days, there have been a few mentions of music copyright law, so I thought I'd start a dedicated thread.

Copyright laws protect all recorded music, and the use of copyrighted music is subject to permission from the copyright owners.

If you use music that someone else recorded, then SOMEONE has to pay a fee. If no-one pays, my understanding is that you, and the venue, and the employer, and maybe others, are all on the hook. Churches & schools are not exempt. Charitable events are not exempt. Free performances are not exempt. Performances in someone's living room are not exempt.

If you use "royalty free" music, then you already have paid the fee and are allowed to use the music within the limits of the agreement.

For the ins-and-outs of copyright law, don’t rely upon hearsay, or on any exceptions or work-arounds you read about in online forums.

I'm not an expert, but these people are:
- BMI, ASCAP, Harry Fox (USA)
- SOCAN (CANADA)
Each country has its own publishing rights organization(s), and each can answer all your questions.

Have a nice day!
Dan.

Good post Dan!

Actually, I think that we could get into more trouble downloading copyrighted music than we ever would actually using it publicly...

This is why I record and write my own music for myself and others. I have seen too many people get stung with a 10,000 dollar fine. This is also why, with DJing, I stick to AVLA licensed CDs and avoid downloading altogether.

There is a magician out of the Toronto area. I won't name her, but she used Disney music in her show. I have serious doubts about her being able to use it, as Disney is notoriously very picky on letting people use it's symbols, characters, and music.

Here we go again. With a few exceptions, it isn't the performer who is required to pay these royalties...it's the venue: clubs, bars, festivals, theatres, and so on. "Some people mistakenly assume that musicians and entertainers must obtain licenses to perform copyrighted music or that businesses where music is performed can shift their responsibility to musicians or entertainers. Since it is the business owner who obtains the ultimate benefit from the performance, it is the business owner who obtains the license. Music license fees are one of the many costs of doing business. ASCAP Website"

There are certain bonafide school and church uses that are exempt from paying the royalties. "If the performance is part of face to face teaching activity at a non-profit educational institution, permission is not required. Permission is required when music is used as part of training seminars, conventions, or other commercial or business presentations. ASCAP Website" Private homes and private use are not an issue...which means using music at your average birthday party is not an issue your average party performer needs to worry about.

This said, the best way to go is still Royalty Free and original music for several reasons. The best nonlegal reason is that you don't want your audience's attention to be pulled away as they daydream or sing along with a well known song. You want the music to focus all attention on your act. Fresh, unknown music or music that is irrevocably linked to your image is the way to go. On the other hand, some performers like the fact that a person may think of you and your act every time a common song you used hits the radio. It's a personal choice.

There are SEVERAL excellent and completely researched threads on the Café that cover this in FULL detail.

Skip

Skip,
Entertainers do have to pay for performing rights of music. At least here in Canada through SOCAN. Performing rights include the use of recorded material (3b, 11b) http://www.socan.com/jsp/en/resources/tariffs.jsp

Even buskers are required to pay.

I'm not trying to win, but I am trying to make sure we provide correct info.

I apologize for posting an unreferenced, unsupported claim at the beginning of this thread, because that sort won't help.

So;
~~~~~
According to the SOCAN site:
"If you perform or authorize the performance of copyright-protected music in any public setting, or if you communicate those works to the public by telecommunication, you need the permission of the copyright owners. It's the law."

"A SOCAN licence entitles you to use the musical works contained in SOCAN's repertoire in a particular way, recognizing the work of those who create and publish it. You need a licence whether the music is live or played on a tape/CD player, jukebox, video or karaoke. You need a licence whether the live performers are paid or not."

"You may not need a licence in all cases. E-mail us to be sure."

If anyone has specific questions for SOCAN, please contact them, and post the response here.
~~~~~
From the ASCAP site:
"We often use the expression "they're playing my song," not always remembering that while we may have emotionally adopted the song, it still legally belongs to the songwriter who created it, and the music publisher who markets it. When you use other people's property, you need to ask permission."

"A public performance is one that occurs either in a public place or any place where people gather (other than a small circle of a family or its social acquaintances.)"

"Generally, those who publicly perform music obtain permission from the owner of the music or his representative. However, there are a few limited exceptions, (called "exemptions") to this rule. Permission is not required for music played or sung as part of a worship service unless that service is transmitted beyond where it takes place (for example, a radio or television broadcast). Performances as part of face to face teaching activity at a non-profit educational institutions are also exempt.
We recommend that you contact your local ASCAP representative who can discuss your needs and how ASCAP can help you."

If anyone has specific questions for ASCAP, please contact them, and post the response here.
~~~~~
From the SESAC site:
"Q: Why Should I Have a SESAC Performance License?
A: If you are using someone’s property (song) there is a moral and legal obligation to obtain the owner’s permission. Under the Copyright Law of the United States, anyone who plays copyrighted music in a public establishment is required to obtain advanced permission from the copyright owner, or their representative."

"Q: I heard that the copyright law was changed and now certain performances of music do not require a license. Can you provide me with specific information?
A: YES, certain changes to the LAW were made that affect only certain radio and television performances."
I included this reference only to note that the list that follows it refers to music played on radio or TV, and not to music played on your CD, MD, ShowTech, etc...

If anyone has specific questions for SESAC, please contact them, and post the response here.
~~~~~
Again, I implore you, do not rely upon hearsay. If you can provide legitimate references, one way or the other, please post them. Unreferenced, unsupported claims will not serve the purpose of this thread.

Posted: Oct 26, 2006 7:31am
According to the BMI site:
"Copyright owners have the exclusive right to perform their own musical works in public. All others must enter into a licensing agreement to perform the music."

"Does the purchase price of tapes and CDs cover the right to play them in my business?
When you purchase a record, tape or CD, the purchase price covers your private listening right only. Once you decide to play these in public - such as in a restaurant, bar, Café or telephone music-on-hold service - it becomes an additional performance of the music, which is known as a "public performance." The copyright owners of musical works have the exclusive right of public performance. Therefore, any public performances by others require permission."

Bravo! The facts speak for themselves. My apologies, Dan. I didn't mean to imply that you had anything less than the best intentions. Previous threads on this topic have simply gone off into the wildest flights of fancy and rumor, and grew rather heated. Looks like it's on solid ground now.

Skip

Even though we have in it writing, it is still best to ask them if your situation totally applies. There are always minor exceptions, and the only way to know is to ask them.

Skip,

While performers aren't actually the ones licensed, they should be the ones to ask.

Just because I'm going to perform at a banquet in a hotel, doesn't mean I have carte blanche to use any music. The performer would still need to inquire with the hotel as to the status of their license.

Robert

Agreed, Robert, and a great point. The whole scene is so much hassle that I'm just amazed at performers who don't use the outstanding royalty free products out there.

Skip

Good topic, and some excellent points made. If you're serious about performing with music, you owe it to yourself (and your pocket book) to make sure everything's on the up-n-up.
There are a few Royalty-free sites out there; http://www.Arthurstead.com for example


All the Best,
Tommy

I just sent the following questions to SOCAN, ASCAP & SESAC. Living outside America, I wasn't able to email BMI, and for the same reason, I don't know if I'll get answers from ASCAP or SESAC. Whatever answers I get, I'll post here.

"Considering a magician that works in restaurants & bars, in banquet halls, in private residences, and in churches & schools, if music is used in the act, who needs to get the license? The performer? The person that hired him? The venue?

If the party that is responsible for the license don't not take care of it, are the other parties accountable? Potentially, what is the penalty?"

Please don't post answers to these questions unless your answers include verifiable references. Speculations and repetition of hearsay will not help to provide clarity.

Posted: Oct 27, 2006 7:47pm
Wow!
So far, I've received two responses to my emails, and both responses include info that is contrary to what I had previously thought.

The question was:
"Considering a magician that works in restaurants & bars, in banquet halls, in private residences, and in churches & schools, if music is used in the act, who needs to get the license? The performer? The person that hired him? The venue?

If the party that is responsible for the license don't not take care of it, are the other parties accountable? Potentially, what is the penalty?"

I decided that, since I did not ask permission to publish their responses, the safest thing would be for me to paraphrase, but their wording was very clear & easy-to-understand, so accurate paraphrasing will be easy.

Both SOCAN & ASCAP said it's the venue and establishment that are responsible to secure licensing. ASCAP added that the promoter is also responsible. Both said that the performer is not responsible to secure licensing.

ASCAP said that, if an infringement does take place, the venue, establishment, promoter AND PERFORMER are all liable, and that the performer should therefore check to make sure each venue is properly licensed.

SOCAN said that houses of worship are exempt only if the music is used as part of the service. SOCAN said that schools are exempt only if the music is used as part of the curriculum. Schools & churches, therefore need licenses for all other uses. ASCAP's Web site also mentions the school exemption.

Both SOCAN & ASCAP said that weddings and private residences are exempt.

Well, things certainly are becoming more clear. Not what I had expected, but more clear. By the way, if I receive a response from SESAC, I'll post about that, too.

I would be curious to know if "old music" like Pink Panther, The Sabre Dance, Chaplin's compositions, Scott Joplin's Rag Time music, and classical pieces composed by Shastokovitch, etc. are considered royalty free. I thought that after a certain amount of time following the death of the composer, certain musical arrangements became royalty free.

Can anyone please clarify this?

Many thanks.

Jonathan

It is my understanding that a composition may be in the public domain, however, a contemporary recording or arrangement is protected. For example, Stephen Foster's "Old Kentucky Home" may be in the public domain. If Red Katz's Dixieland Band records the song onto an album, that performance carries the band's copyright.

The only way around this, again to my knowledge, is to record your own version or arrangement of the public domain song, or obtain a recording from a royalty-free musical source.

According to http://www.pdinfo.cpm. , an Inet public domain info source:

"Music and lyrics written by an American author and published in 1922 or earlier are in the Public Domain in the United States. No one can claim ownership of a song in the public domain, therefore public domain songs may be used by everyone. PD songs may be used for profit-making without paying any royalties. If you create a new version or derivative of a public domain song, you can copyright your version and no one can use it without your permission. However, the song remains in the public domain, and anyone else can also make and copyright their own version of the same PD song.

"Songs change over time. Even though a public domain version exists, some versions may still be under copyright protection. The only way to confidently identify a PD version is to find a copy of the song with a copyright date old enough for public domain status. You can then use that PD version or work from it to create your own derivative work. If you work from a version still under copyright protection, the copyright owner can likely make a valid claim for royalties.

"Music recordings are protected separately from musical compositions. Virtually every sound recording in the USA is under copyright protection until 2067. If you need a sound recording, you will either have to record it yourself or license one."

Skip

The correct link is http://www.pdinfo.com , and you can search their list of public domain songs here.

As Skip referenced, although a SONG may be in the public domain, RECORDINGS of it are NOT in the public domain, and the recordings are protected by copyright.

Posted: Oct 29, 2006 2:24pm
The US Copyright Office's Web site says that an exemption applies for:
Chapter 1, 110 (10);
"performance of a nondramatic literary or musical work in the course of a social function which is organized and promoted by a nonprofit veterans' organization or a nonprofit fraternal organization to which the general public is not invited, but not including the invitees of the organizations, if the proceeds from the performance, after deducting the reasonable costs of producing the performance, are used exclusively for charitable purposes and not for financial gain. For purposes of this section the social functions of any college or university fraternity or sorority shall not be included unless the social function is held solely to raise funds for a specific charitable purpose."

Although I haven't been able to find this "lay" wording of that same passage on the Web sites of any of the performing rights organizations, I have found it (or very similar wordings) on several other sites.
"Performances at charitable functions are exempt from license or royalty requirements only if the performances are without any purpose of direct or indirect commercial advantage and if no one involved with the performance, including the performers, organizers or promoters, is paid, and there is no direct or indirect admission charge."

I am a strong believer in using royalty-free music, or custom-composed music, for magic shows. One reason is the complications that arise from copyright and licensing issues under discussion here. But there are other very valid reasons, including the fact that using a familiar song can be distracting to the audience. You’ll have to attend one of my lectures to hear more about that! But for now, let me chime in with my two cents worth of information on this thread:

Artistic creations (literature, music, art, inventions) are usually copyrighted by the creator(s) to protect their work. In the case of a musical composition, this copyright lasts for the duration of the composer's life, plus 70 years after his death. No one is allowed to use this music in public performances without proper authorization from the copyright owner. A license to use the music must be obtained from a music rights organization like BMI or ASCAP. These organizations also collect royalties on behalf of the composer.

Without this arrangement, the composer(s) would not receive compensation if their compositions were used in live performances, in the movies, on TV, or any other media. If someone gets caught using copyrighted music without permission, they are violating copyright law and could face heavy fines.

A legal alternative to getting a music license is to use royalty-free music. This is music composed specifically for live performances, for which the composer will not demand royalty payments. The composer still copyrights his music and retains ownership, but by selling it as “royalty-free”, he gives the purchaser the right to use his music.

It’s important to note that when you buy a royalty-free music CD, you purchase the right to use that music in your own live performances. But only the purchaser has the right to use the music. They can’t make copies for their friends, or use the music on re-sellable products.

Regarding music in the public domain: When a copyright has expired (70 years after the composer’s death), musical compositions enter the “public domain.” Then, they are considered to be part of our cultural heritage, and may be exploited by anyone without fear of copyright infringement. A good example is the music of John Phillip Sousa. Some of his songs are in the public domain, while others are still under copyright. It all depends on when the song was originally copyrighted.



But here’s an important consideration: Although the song itself may be in the public domain, the current recording of that song will have been re-copyrighted. In other words, the artist who recorded the song, the record label, the producer, the publisher, the musical arranger, etc. may all be entitled to "a piece of the pie" for their new version of the song. And, I believe they deserve to be compensated for their efforts.

It gets quite complicated, but the fact remains that using copyrighted music without permission is illegal and unethical. My advice to performers is to stick to using royalty-free music from the start. That way you avoid any copyright issues and can do your shows with a clear conscience. And, royalty-free music is usually composed with specific performance situations in mind. So, it’s easier to find a composition with the right mood and atmosphere for your routines.

Arthur Stead

Thanks for your contribution, Arthur!

Two quotes drawn from your post, and listed above, appear to contradict one another. One says the expiry date is dependent upon the date-of-death of the composer, and the other says it is dependent upon copyright date.

Which is it? Please be sure to give specific references so that this thread continues to contain only reliable, easily verifiable information. Quotes & links seem to work best.
Cheers!
Dan.

Hi Dan,

You’re right, that is confusing.

Nowadays, a music copyright is valid for the duration of the composer’s life plus 70 years after his/her death. In other words, no matter in which year of his/her life the copyright is established, the composition is protected until the composer’s death, after which copyright ownership transfers to their estate for the next 70 years. Following those 70 years, the copyright expires, and the composition enters the public domain, as explained in my post above.

The reason for the apparent confusion is that the above stipulations apply only to musical works created after 1978. Before that the law was slightly different. Composition registered with the copyright office before 1978 were copyrighted for 95 years from the date the copyright was secured. The life and death of the composer did not matter. That’s why, in my example above, some of Sousa’s works are already in the public domain, while others are still copyrighted.

You’ll find loads more information about public domain music at http://www.pdinfo.com.

All the best,

Arthur Stead

Just got through buying a few instant music downloads from OPUS1, and they sound great! Excellent service offered by the folks at OPUS1 - they allow you to preview almost every song that is available for download. Now I can pick and chose the songs that I like, rather than sifting through an entire CD for one or two tracks.

Thanks, Tommy!

Posted: Oct 30, 2006 6:58pm
Oops... and I'd be remiss if I didn't mention that I have also recently purchased some excellent music from Arthur Stead. He just doesn't offer the instant download feature.

Guys,

Never underestimate the value of having entertainers running for political office. You have a Sonny Bono to thank for the last copyright law that is artist's life plus 70 years. He was a good man to have in Washington. He protected creative people.

Bob Sanders
Magic By Sander