MUSIC LICENSING BASICS

By: Laurie Hughes, Director of Business Affairs, ASCAP

What ethical and legal issues are involved in using music created and owned by others? This article takes a brief look at the common interests of songwriters and professional speakers and the various rights that might be involved when music is used in speeches, presentations and training. ASCAP developed special licenses for speakers and training and development seminars and now provides a simple and efficient means of obtaining permission for your performance of music.

Many speakers recognize the value music can bring before during and after presentations and now play music while audience members enter and exit to set the mood and encourage conviviality. Music during breaks can help cover awkward conversational gaps or be the conversation topic among audience members and can generate excitement during introductions and introductions and "curtain calls." Others make music a vital part of their presentations to establish themes or make key points even more memorable.

As creators of original material, trainers have much in common with those who create music and are aware of their property rights in the materials they create.. Speakers and often develop and practice their crafts for many years before being able to give up their "day jobs". Writers and speakers create original and intangible works and want to protect the value of their work by controlling its use. And, like most property owners, both expect to be compensated when others use their intellectual property. This interest is codified in Article 4 of the National Speakers Association Code of Professional Ethics which that "the NSA Member shall avoid using materials, titles and thematic creations originated by others, either orally or in writing, unless approved by the originator."

In addition to the ethical obligation, there is a legal obligation to obtain permission before using copyrighted material. The U.S. copyright law protects songs and speeches by granting songwriters and speakers the exclusive right to use or authorize the use of their works. Among these rights are the rights to make and distribute copies of the work, for example, books, sheet music, CD's and videos. Another important right is the right to perform the work publicly – that is, at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered.

As with other property, the use of a copyrighted work might take any one of several forms, each of which requires authorization. Rights in intellectual property may be analogized to the various rights in a single piece of land that a landowner might lease. For example, one lessee may obtain mineral rights and another might obtain grazing rights on the same acreage. Certainly, the lessee of the mineral rights would not want to pay for the grazing rights.

A similar situation occurs with the use of copyrighted property. Record companies pay for the right to make and distribute recordings of musical works, however, they do not pay for the public performance of those works, because, under the Copyright Law, the record company is not publicly performing them. You may also be interested to know that the amount paid by record companies to songwriters and music publishers for the right to record and distribute records is about seven and one-half cents per song. The largest source of income for songwriters is royalties they receive for public performances of their songs.

Permission to make copies or recordings (including in movies and videos) of songs is typically obtained from the music publisher (who has in turn acquired the rights from the songwriter and pays the writer a share of all monies collected) or its agent. Recording rights for most music publishers can be obtained from The Harry Fox Agency (212-370-5330; www.nmpa.org/hfa.html.) If you use an existing recording (rather than hiring performers and creating your own recording) you will also need permission from the owner of the "sound recording", typically the record label.

You will also need to obtain permission to perform the songs in your presentation. It is impossible for copyright owners to know of and try to license individually each performance of their works. The considerable time and expense involved for both the songwriter and the user would take the writer away from his primary work of creating music and divert the user from his business. Therefore, songwriters and music publishers authorize collective licensing organizations such as the American Society of Composers Authors and Publishers (ASCAP) to locate and license public performances of their works. ASCAP issues a "blanket license" which, for a modest annual fee, grants music users the right to perform any or all of the millions of copyrighted musical works in ASCAP's repertory as often as they like.

Over 300,000 United States businesses have found that the ASCAP license is a simple, inexpensive solution to their music licensing needs. ASCAP has licenses for well over 100 industries including bars, hotels, nightclubs, restaurants, colleges and universities, corporations, radio and television stations, concert and festival promoters, carnivals, conventions and trade shows, motion picture theaters, skating rinks, YMCAs and YWCAs, theme and amusement parks, health clubs, dance schools, department and retail stores, race tracks, sports leagues, and zoos.

The ASCAP is the leader in performing rights and was founded in 1914 by John Philip Sousa, Irving Berlin, George Gershwin and others who found that their music was being used in restaurants, nightclubs and concerts without their permission. ASCAP is still owned by and managed for its members and licenses public performance rights for more than 95,000 U.S. writers & publishers; hundreds of thousands more from all over the world. ASCAP's repertory contains over 4.5 million works of all types.

ASCAP offers licenses for Training and Development programs as well as for presenters and trainers to address the problem of unauthorized performances. The licenses are comprehensive, covering most training and development sessions and speaking engagements. The licenses allow unlimited performances of ALL works in ASCAP repertory and it virtually eliminates potential for copyright infringement liability for performances of works in the ASCAP repertory. Finally, they are economical because the licenses reduce individual transaction costs and have the additional benefit of giving you the right to perform new works as they are added to our repertory – with no additional cost. The annual fee depends on the number of presentations. A discount may be available through your trade association.

(Note from Scott: We should lobby ASTD to offer such a discount program.)

There are some limits to the license. The license excludes dramatic presentations, broadcast, webcast or transmissions off-premises and performances at or during any event for which a license covering the presentation has been issued by ASCAP to a third party. Also, ASCAP does not license the right to record or make audio, printed or video copies of musical works or sound recordings. Finally the license is designed to cover speaking engagements. ASCAP offers a different license agreement for training and development seminars.

Finally, one of the most frequent questions we are asked is where does my license fee go? Quite simply, to ASCAP's members. All the fees we collect are distributed as royalties, after deducting operating expenses (currently less than 16%).

We urge you to experiment with music in your presentation. We think it will make a positive contribution. But remember, to contact us first!

(c) 2000 ASCAP. All Rights Reserved.

reprinted on www.SquareWheels.com by permission

 

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