Copyright enforcement?

[Sayen]

First off, thanks for all of the advice in my older copyright thread, as well as all of the awesome copyright threads in the history on this board. My facility has been working to establish cleaner and revised policies for renters, and we've come to a sticky point.

Our clause says that it is the responsibility of the renter to obtain all necessary permissions. We don't check them or have an easy way to check - but I also know that ultimately the facility is as responsible for violations as the individual clients. How do some of the other facilities out there handle this? Do you require renters to supply proof of copyright permissions?

I'm mostly thinking music here. I know most theater groups are good about rights, along with major orchestras. But I know most dance groups and variety acts do not have permission, even though we never ask outright.

 

[museav]

Don't take this as legal advice, but in my communication with an attorney and some of the music licensing groups, at lkeast in terms of public performance rights it seemed to come down to two points. First, per Federal copyright law anyone who benefits from the use is at risk. You can say otherwise in the Contract but that does not alter the related Federal law. Second, as the venue directly relates to a performance being a public performance, usually benefits in some way from any performance, typically has something of value to risk, is usually a documented entity and is less likely to disappear, the rightsholders are most likely to go after venues.

The venue does seem to often have the most at risk and production companies, sound providers, etc. seem to generally assume that the venue will procure public performance rights. And most performance venues find obtaining public performance rights costs an inexpensive option compared to the potential risk.

 

[Sayen]

That's exactly what I've found, in regards to liability.

What I'm trying to figure is for groups renting our facility. The contracts require them to obtain permissions, but should we be asking to see that in writing?

I'm not asking this as legal advice, just curious what other venues are doing/how they handle this issue.

 

[gafftaper]

You absolutely should be asking to see proof in writing. If someone has gone through the trouble to obtain rights this is very easy for them to prove. Is it a pain for you to ask for this proof? Not really. It's just one more thing they need to send back to you with the rental agreement, just like proof of insurance. Will you potentially loose rentals to venues that don't care about rights? Yes you will. Perhaps a lot of business depending on what you usually do. Will you be in the minority if you start enforcing a paperwork check? Yes. Would you allow someone to rent your theater to show bootleg recordings of the latest motion picture release, the Super Bowl, or Olympics without permission? No of course not. How are those examples different from allowing someone to play music without a license in your space? The likelihood of your getting busted is higher with those activities.

In the end the real question is, is it worth it? If you are the one theater in town that checks paperwork, then you are going to lose business. On the other hand if they make an example of you, and you get fined thousands of dollars you are going to wish you checked.

In the end "You've got to ask yourself one question. Do I feel lucky? Well do yah Punk?"

You might consider a consolidated effort with other rental facilities in your area. If everyone cracks down at the same then nobody looses business or risks a legal action.

 

[museav]

You might need to be clear on which rights you are addressing. You mentioned music and because of the markets and usage covered, ASCAP/BMI/SESAC public performance rights are strongly oriented toward the venues addressing them and many bands, DJs and sound providers assume the venue will address them. Music in dramatic use is different licensing and since the use is specific to a performance may be handled differently. For the latter it would seem to make sense to make it the renter's responsibility and as an "at risk" party it does not seem unreasonable to ask for proof. On the one hand asking provides some indication of 'due diligence', on the other hand, asking for proof and proceeding without it seems like it could actually increase your risk.

 

[JLNorthGA]

First off, thanks for all of the advice in my older copyright thread, as well as all of the awesome copyright threads in the history on this board. My facility has been working to establish cleaner and revised policies for renters, and we've come to a sticky point.

Our clause says that it is the responsibility of the renter to obtain all necessary permissions. We don't check them or have an easy way to check - but I also know that ultimately the facility is as responsible for violations as the individual clients. How do some of the other facilities out there handle this? Do you require renters to supply proof of copyright permissions?

I'm mostly thinking music here. I know most theater groups are good about rights, along with major orchestras. But I know most dance groups and variety acts do not have permission, even though we never ask outright.

If I may "chime in". Our theatre is a member of AACT. As such, we have a reduced rate for recorded music played at our venue. Rather than require all of the dance recitals, etc. which rent our facility to get their own ASCAP license, we just "bit the bullet" and paid for one for the venue. It covers all entre' act, pre-show and all recorded music used in shows. Our ASCAP license also covers live performances.

At the same time, we got a license from BMI for the music from live performers (NOT MUSICALS).

We are a small venue (250 seats) - copyright compliance costs are less than $600/year.

We do not have a license to record for distribution. In other words, if the local cable TV operation wants to record a concert for later broadcast, they have to show us that they got a license.

As an "aside", for many years I belonged to various choruses which put on shows. We were required by our "parent group" (then known as SPEBSQSA) to get a license for each show. We paid a yearly fee to ASCAP/BMI that depended on venue size. In my experience, I got asked for a license about 20% of the time.

 

[Sayen]

These responses help a lot, thank you. I have feelers out in my local community too, but I get the feeling no one wants to admit what they do/don't do, and I'm guessing most places adopt some sort of "Don't ask, don't tell."

I only want to cover live performances (dance, choir, music used along with plays). Licensing for plays and musicals is easy, and as a director I have no problem asking for that evidence. I don't want to approach recording licensing yet, which I realize is a very different category.

I didn't realize a blanket license would cover renters - I've got calls into BMI and ASCAP regarding this.

 

[museav]

I only want to cover live performances (dance, choir, music used along with plays).

I am pretty sure that music used to accompany dance or plays is considered a dramatic use rather than a music performance and I don't believe that BMI and ASCAP address those situations.

This is actually similar to what cinemas encounter where the rights they obtain to show the movie include the soundtrack, which is a dramatic use, so they have to procure separate rights to play any portion of that soundtrack other than as a direct element of the showing, such as before or after the movie or in the lobby.

 

[gafftaper]

I am pretty sure that music used to accompany dance or plays is considered a dramatic use rather than a music performance and I don't believe that BMI and ASCAP address those situations.
This is actually similar to what cinemas encounter where the rights they obtain to show the movie include the soundtrack, which is a dramatic use, so they have to procure separate rights to play any portion of that soundtrack other than as a direct element of the showing, such as before or after the movie or in the lobby.

This then gets into the very confusing line between "grand" and "small" performance licensing. Which is a really crazy area that I have only a vague understanding of. When you play music between scenes or during intermission as part of a play's sound design all of this music is covered under the normal "small" ASCAP rights. However if you have a singer jump up on a table and sing a song, then it becomes a dramatic centerpiece of the performance and crosses into "grand rights" which is a completely different deal. "Grand" rights are not covered by ASCAP and have to be individually negotiated with the producer of the album.

I found this excellent article on copyright law.

 

[Sayen]

View attachment sound-copyrights.doc

This is not perfect, but gives some info on grand/small rights. I wish I knew the source (suppose I could Google it...). You probably know this, but others reading the thread might find it useful.

I've been in unofficial contact with a copyright lawyer friend, and much of this seems to boil down to a case by case basis, especially once you introduce non-profits and educational groups into the mix. Sound of Music might need licensing direct from the dramatic publisher, while just a song danced to might need only the general music rights. If the dance is interpretive of the Sound of Music story it gets really confusing. Unfortunately "case by case" means determined by a legal entity, and not just the publishers.

It'll be a while, but if I make any headway I'll post back with what the big companies tell me.

 

[Skjermoney]

As far as non-profits go I work for a non-profit that is a movie theatre and concert venue and I know that we have licenses with ASCAP and BMI. If anyone has any insight into the educational side of this I would appreciate it. I just started at a high school and am wondering about all the stupid little shows that go on every year; i.e. when kids play music for talent shows, lip sync contests, Mr. "name of school" pageants, etc. I've always been under the impression that there are pretty broad copyright exceptions for educational use.

 

[gafftaper]

The best thing to do in the educational world is for the school to just get a license then all "small rights" activities for drama, choir, dances, talent shows, etc are all covered.

 

[museav]

I've always been under the impression that there are pretty broad copyright exceptions for educational use.

I believe there are exceptions where educational use may be considered fair use, however the determination of it being "educational" use is not nearly as broad as some believe It occurring on a school property or by students is not what makes it educational, that seems to be determined more by factors such as being face-to-face teching, being directly relevant to an established curriculum and so on. In other words, the use essentially has to be directly supporting and furthering an established educational program. Use that is purely for entertainment or irrelevant to any curriculum would probably not fall under the educational use exceptions.

 

[Sayen]

Fair Use Doctrine is painfully complex, and not well defined.. There are some specific guidelines for educational use based on court rulings, specifying how much of a work can be copied, such as a percentage of a poem or text. When it comes to performances it gets murkey. Here's the law, courtesy Wikipedia:

17 U.S.C. § 107


Notwithstanding the provisions of sections 17 U.S.C. § 106

and 17 U.S.C. § 106A

, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include:

the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
the nature of the copyrighted work;
the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
the effect of the use upon the potential market for or value of the copyrighted work.

Those four points are substantial.

I'm not a lawyer, this is not legal advice, I'm repeating from memory what I was told by a copyright lawyer recently. For Educational Fair Use: Music used in a classroom is fine, background music at a school festival or assembly is fine. Music during a slideshow in front of the school is fine. Music used in a dance concert is PROBABLY okay, if it wasn't edited in any way. Background music in a play is most likely NOT okay. Music during scene changes is featured content, and probably NOT okay. Recording for distribution is never okay. But, as she put it, this is all determined on a case by case basis, usually with a lawyer or judge.

 

[museav]

But, as she put it, this is all determined on a case by case basis, usually with a lawyer or judge.

My exerience is that many educators approach what is acceptable use as though it is theirs to determine and are often surprised to find that the school or district may look at it a bit differently. What is surprising is how many professors and instructors at universities I've dealt with that either weren't aware of or chose to ignore the university's published copyrights practices. But there are a lot of such documents available via the internet and some of them may make a good reference for creating your own guidelines and practices if they do not already exist.

 

[JLNorthGA]

I talked with a representative from BMI today. According to him, dance companies can be covered under their own rehearsal licenses for recitals. Of course how many dance companies have rehearsal licenses?? Anyway, we have to "report" on our quarterly report and under responsible party, list the dance company name. If any other group rents our facility - we list the renter as the responsible party. Ditto for ASCAP.

Now it turns out that we may also have to talk to SESAC. Their catalog is a lot smaller (maybe 2% of the size of BMI/ASCAP) - but they do have Bob Dylan and Neil Diamond...

 

[gfiremark]

I'm an expert in this area. As a theatre/entertainment lawyer, I help clients with licensing issues surrounding music (among other things). A while back, I wrote a blog post in response to a related question, here: Music Rights for Plays and Musicals | Law Offices of Gordon P. Firemark - Top Los Angeles Theatre & Film Entertainment Lawyer

I hope it's instructive. If it raises further questions, I'd be glad to answer them here.

Thanks,

-Gordon Firemark
TheatreLawyer.com

 

[Sayen]

My venue has, thankfully, decided to go with duel licenses to solve the hassle, and from what I gather our legal is either contacting a copyright lawyer or we are bringing one on board. This is a result of the information here and gathered from around the web, so thank you all.

Thank you for stopping by Gordon - I've sent several people to your website before, and you've been recommended here.

Since we have your attention, I have another sticky question, this one from the school I work at. Can you speak at all to the extent that the fair use doctrine and subsequent 4 points applies to educational productions, specifically the use of music in theater and dance at the high school level?

 

[gfiremark]

... another sticky question, this one from the school I work at. Can you speak at all to the extent that the fair use doctrine and subsequent 4 points applies to educational productions, specifically the use of music in theater and dance at the high school level?

Generally speaking, schools need licenses to perform the works they use in their programming....

The same four-factor Fair-Use analysis is involved when the alleged infringer of a copyright is a school. Since no one factor is completely dispositive of the issue, the analysis looks something like this:

1. the purpose and character of the use; - AS above, classroom use in the normal course of instruction is one thing... but performance to audiences is a bit different (and yes, I understand that performance is part of the educational experience, too, but the line has to be drawn somewhere)
2. the nature of the copyrighted work; (depends, of course, on the particular work, but most plays, musicals, etc., are created to be performed, and the creators DO expect to be compensated)
3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole;and (usually the WHOLE work is being taken. (i.e,. performance of the entire song, play, or musical.... the analysis might be somewhat different where only a monologue or short scene from a longer play is used)
4. the effect of the use upon the potential market for or value of the copyrighted work. - There is such a market, licensing is possible, and licensors are able to garner fees from those who use their works, so the use in question has a significant impact on that market.

The main "exemption" is for in-class, truly instructional uses. In other words, using music in a dance CLASS is likely to be OK, but using it in a dance RECITAL requires a license. When you think about it, this makes some sense. In-Class use is educational. It's part of the training in the art/skill involved, but the presentation to an audience adds a couple of other components... ENTERTAINMENT, and COMMERCE (if tickets are sold).

As a practical matter, my understanding is that most school systems DO have blanket licenses from the Performing Rights Societies, to cover such concerts and recitals, and other "small rights" performances that go on in school.

BUT, in the context of stage productions, it's absolutely required that schools obtain licenses/permissions to perform dramatic works on stage. These rights aren't covered by ASCAP/BMI/SESAC... they must be obtained from the publisher/licensing agent for the play or musical in question.

---

One point to note. If you're an employee of a school, theatre, or producer, and in not obtaining licenses or permissions, you're acting under the direction of your employer, you're not likely to yourself be liable for infringement. The employer IS liable. The tricky thing is, as the employee most directly connected to this issue, your job could be on the line if/when your employer finds itself on the receiving end of a lawsuit. So, you should probably raise the issue with the boss whenever you see it arise. That way, at least you've got some ammunition if you're threatened with discipline or termination.

 

[gfiremark]

... from what I gather our legal is either contacting a copyright lawyer or we are bringing one on board.

I do provide this kind of service to venues, schools, producers, etc., so if your venue is looking for someone....

Law Offices of Gordon P. Firemark