Q and A

A COUPLE OF MUSIC COPYRIGHT QUESTIONS:

Q:  My office has had some students working on a “Thank You Tube” video, basically a bunch of clips of students, faculty, and staff at the university saying “thank you”.  Our plan is to send it to alumni who make annual fund donations.  The students chose some random background music.  I''m wondering if we’ll have any problem using the background music they chose.  If so, what do we need to do in order to get rights to use it?

A:  What you would need are *synchronization rights* if this is copyrighted music. These are almost impossible to obtain. The easier alternative is go to a web site that has already licensed or easy to license music for such a use. See Alternatives to MP3s to learn more about freely available music resources.  You might have the students  try the Open Sound Resource or Magna Tune. You have to read the terms and conditions, but there will be music on the OPSOUND (Open Sound Resource) section  of the Creative Commons that allows you to use it in the manner you have in mind without paying anything. For Magna Tune you might pay a small fee.

Timothy Rice wrote the libretto for Jesus Christ Superstar and Andrew Lloyd Webber composed the score of the opera's overture and 22 songs which depict the last seven days in the life of Christ. Rice and Webber assigned the rights in the work (except "King Herod's Song") to Leeds Music Limited which duly obtained United States copyrights for the opera as a "dramatico-musical composition" pursuant to 17 U.S.C. § 5(d) and for several of the individual  songs as "musical compositions" pursuant to 17 U.S.C. § 5(e). Leeds Music Limited assigned the United States copyrights to Leeds Music Corporation. The Robert Stigwood Group Limited ("Stigwood") acquired the rights for stage productions and dramatic presentations of the opera, and its rights are those allegedly infringed. ****

 

In any event, ASCAP is authorized by its members to license only nondramatic performing rights of compositions in its repertory. Consequently, pursuant to  the standard ASCAP agreement utilized here, ASCAP was authorized by Leeds to give: 
1. (b) The non-exclusive right of public performance of the separate numbers, songs, fragments or arrangements, melodies or selections forming part or parts of musical plays and dramatico-musical compositions, the Owner reserving and excepting from this grant the right of performance of musical plays and dramatico-musical compositions in their entirety, or any part of such plays or dramatico-musical compositions on the legitimate stage.
Thus, while ASCAP licensees n2 can perform the individual songs from Jesus  Christ Superstar, whether copyrighted individually or merely as part of the opera as a whole, paragraph 3 of the standard license indicates that it does not extend to presentations of: 
(a) Oratorios, choral, operatic, or dramatico-musical works . . . in their entirety or songs or other excerpts from operas or musical plays accompanied either by word, pantomime, dance or visual representation of the work from which the music is taken; but fragments or instrumental selections from such works may be instrumentally rendered without words, dialogue, costume, accompanying  dramatic action or scenic accessory and unaccompanied by any stage action or visual representation (by motion picture or otherwise) of the work of which such music forms a part. *****

 

There can be no question that the OATC concerts, in which singers enter and exit, maintain specific roles and occasionally make gestures, and in which the story line of the original play is preserved by the songs which are sung in almost perfect sequence using 78 of the 87 minutes of the original copyrighted score, is dramatic. And, the admitted desire of defendants to make reference to the opera in its advertisement provides further evidence that the performance is intended to come as close as possible to the original dramatico-musical. See M. Nimmer, Copyright § 34 (1971).

 

Q  Are separate "internet" licenses required from SoundExchange, ASCAP, BMI, and SESAC, or is the SoundExchange license sufficient?

 

A (This answer was provided by, and with the permission of  Lois Peel Eisenstein, University Attorney,University of Arizona)

Generally speaking, Sound Exchange represents those companies and individuals that own the music performing rights in the digital audio performance of sound recordings (e.g., record labels) This is a relatively new category of rights added to the Copyright Act in the late '90s; it does not include the performing rights to the underlying musical work (see next paragraph). SoundExchange offers different categories of licensees, depending on the nature of the organization seeking the license (e.g., a small, non-commercial broadcaster/webcaster will have a different license fee structure than a commercial broadcaster/webcaster). There has been controversy (and, I believe,threats of litigation) over the past couple of years with respect to the reasonableness of the SoundExchange rates, especially as they apply to small, non-commercial broadcasters.

ASCAP, BMI and SESAC are organizations that represent their member composers and music publishers in the licensing of non-dramatic music performing rights in musical compositions (as opposed to the performance of the recording itself - see preceding paragraph). Membership in these organizations is up to the individual composer and publisher with respect to each musical composition. Sometimes a single composition can be represented by more than one of these organizations (for example, the publisher and the composer may each be a member of a different music performing rights organization). So, you can't determine which is the applicable performing rights organization by reference to the artist who performs the work, or the type of music involved. Generally speaking, ASCAP and BMI represent the lion's share of music performed in the US; SESAC has a significantly smaller membership. Each of these organizations offers a "blanket license" that covers the non-dramatic music perfoming rights to all their respective composers' and publishers' works for unlmited use during the license term in defined media of exhibition, and for live performances. They also make available a "per program" license. Depending on the type of public performance involved, it may be possible to obtain performing rights directly from the composers and publishers of the works being used, since their membership agreements with ASCAP, BMI and SESAC are non-exclusive.

The ASCAP, BMI and SESAC licenses typically will cover the music performing rights for the live or recorded (other than digital audio performances - see SoundExchange) performance of copyrighted works in a concert on the university's premises or under the university's auspices (the language of each license will define the scope). With respect to the music performed live in a play, the issue would be whether the music is incidental to the dramatic performance, or alternatively, whether the music is an intrinsic part of the dramatic action. The latter, called "grand" performing rights (i.e., music which is intrinsic to the dramatic performance, such as the musical score for an opera) are not within the scope of the ASCAP, BMI or SESAC licenses; these organizations cover only non-dramatic music performing rights.

 

Note from Editor on Acronyms:

ASCAP - the American Society of Composers, Authors and Publishers, a nonprofit association - is the oldest and by most measures the largest of the performing rights organizations in the United States.

B.M.I. - Broadcast Music Inc., also a nonprofit and the longtime chief competitor to Ascap.

SESAC  - Society of European Stage Authors and Composers,  the smallest of the three and the only for-profit organization of the group.

 

Q What's the story on the NACUBO and ACE agreement with SESAC about campus music licensing?

 

A This information is from an announcement by NACUBO on December 5, 2003:

 

"The American Council on Education and NACUBO have reached an agreement with SESAC on a new model license for on-campus performance of music in the organization's repertoire. The new agreement, which SESAC will mail to institutions over the next few weeks, combines the coverage provided by SESAC's general College and University license and its Internet license. A letter from the three organizations explaining the agreement will be included in the mailing.

The term of the agreement has been shifted to align with the schedule used for college and university licenses with the two other performing rights organizations, ASCAP and BMI. It covers the period that began July 1, 2003, until June 30, 2007. Rates for the first year will be $.089 per FTE with a minimum of $180. Optional coverage for locally originated cable television will be included at no additional charge for the first year, but will cost $.018 for the second year. A schedule for modest price increases is included for the four years covered.

 

Most colleges and universities are currently licensed with SESAC and may have paid license fees past July 1, 2003, the effective date of the new agreement. SESAC will credit these payments to the new agreement. The balance of any license fees due for the initial period of the new agreement, July 1, 2003 through June 30, 2004, will be invoiced by SESAC when they receive the completed agreement. Subsequent payments will be due January 1 of each year based on the full-time equivalent enrollment in the fall.

 

The NACUBO contact for music licensing issues is Anne Gross, vice president, business and regulatory affairs. She can be reached at anne.gross@nacubo.org or 202.861.2544."

  Q.   Questions on a Freelance  Photographer Contract:   Is it  typically the photographer's obligation to obtain releases from recognizable subjects? Are rights in the work product typically transferred outright, jointly owned or granted on a limited basis? Are indemnities normally part of the negotiation?

A. It is typically the photographer's obligation to obtain a release at the time the photograph is taken from all individuals photographed (unless the photograph is something like a street scene that includes people whose presence could reasonably be described as incidental and none of whom is the focus of the photograph). The photographer obtains the right to use the image [the photographer usually tries to get the broadest uses possible; the subject, if sophisticated, may confine it to certain uses] and a release from all claims whether in contract, copyright, publicity, privacy, or libel.

I'm not sure what you mean about the rights (transfer/joint ownership/license). As between the subject and the photographer, the photographer owns all copyright rights (although the scope of use might be subject to a contractual limitation from the person being photographed). As between the university and the photographer, putting aside work for hire, the relationship is whatever is negotiated -- either an assignment or a license. (Photographers are loathe to assign rights (or even license them exclusively) unless well paid because they make their income from multiple non-exclusive licenses.) I don't see how ownership could be "joint" unless the photographer agrees to transfer part ownership in the copyright. (In the absence of contractual terms to the contrary, under U.S. law, joint copyright owners can each license non-exclusively but have an obligation to account to the joint owner.) A photographer's work *could* be work for hire (i.e., owned by your institution) only if (1) the photographer is your employee and took the photos within the scope of his employment, or (2) the photographer is an independent contractor *and* the work was commissioned as one of the 9 categories of works listed in 17 U.S.C. 101 ("work for hire" (2)) *and* you have a writing signed by both the photographer and your institution. Assuming an assignment or license, the photographer should give you (1) warranties that the work is original, he has owns or has obtained all rights necessary to reproduce and distribute it in the way in which you intend, his license (or assignment) does not conflict with any other contract, and the work does not violate any third-party copyright, trademark, or other proprietary right and the work does not defame or violate the right of publicity or privacy of any third party; and (2) indemnities against claims that if true would violate any of the foregoing warranties. Don't forget governing law.
Answer courtesy of Gloria C. Phares, Patterson, Belknap, Webb & Tyler LLP

Answer courtesy of Georgia Harper, University  of Texas System, Office of General Counsel

Follow up comment courtesy of Georgia Harper, University  of Texas System, Office of General Counsel

"Yes, I agree with Peggy that it would fit beautifully within TEACH, but that list of requirements is fairly rigorous. I think it's fair use as well, however, given the facts you have provided."

Q Our university is interested in showing a legal copy of three movies (which are on average about 20 years old) to a group of about 30 students in the library of one of our centers. Faculty will lecture before each movie and lead a discussion of the movie afterwards. Each movie will be shown on two separate days. My question is whether this type of showing requires a public performance license or whether this would still qualify as classroom use under Section 110(1).