OT: BMI sues and wins...

Comments

JohnnyRoy wrote on 3/22/2006, 5:18 PM
> So help me understand. Is it technically illegal for a parent to tape his kid in a school production for his own use if the school had not paid for the license? Or does each parent have to purchase a license?

That’s a good question and it depends on the production. I didn’t ask what would happen if they didn’t purchase the license. i.e., would they have to ask parents to refrain from video taping? The principal was just concerned with my video taping so the 8th grade class could each have a copy. I know the license covered all video taping including the parents so each parent does not have to obtain a license. But I’m not sure what would have happened if the school didn’t license the right to video tape the performance.

If parents were allowed to tape without the license then they didn’t need the license because technically, I’m a parent. My son got the lead role of Aladdin. (insert proud father blush here...) It doesn’t matter now because the fee is paid but I’ll ask and see if I can get an answer.

Disney is very protective of their productions. The contract explicitly states that you can’t stray from the play’s original intent. Meaning, you can’t make a parody, or change the words, etc. It has to be performed as written with serious intent or no deal.

~jr
Dach wrote on 3/22/2006, 5:49 PM
First let me say that any law should be respected and when people are clearily aware of it, it should be followed.

Unfortunately the issue of ... you need a liscense for this and one for that ... etc. For myself is confusing and the method of complying complex.

The reason I say that it is one sided, is for any establishment that uses a song or plays a movie in a sense could very well influence a sale of such product. Do they then get a comission.... I will use the music industry as an example, they require a business to pay them (liscense) to help sale their product.

or it could be said this way

I would like you to pay me... so you can then help me sale my product. I suggest this with some humor so bare with me. When can a business charge the artist or who ever a per hit fee... for every person who is sitting in their establishment, that heard the song. I only look at this point of view, because advertisers will say... we charge this much but we have a circulation of xxx and we all no how much a business might spend on advertising.

Anyway have a good week.
Chad

TheHappyFriar wrote on 3/22/2006, 6:12 PM
ok, I'll explain. I know how radio/TV work. I know that businesses pay $$ for music they play, eigther it be a liscence or they pay a local band to play origional songs. My argument is, since there was no explination as to weather this was an actual karoake setup or not, if a business (IE bar) hasa jukebox & someone pops a quarter in to play a song, why is it illegal for people to sing along to it? Anyone can sing along to a song, that's my point. Now maybe the guy bought a karaoke setup at target & never payed royalities (don't know why if he did on the juke) but that's never mentioned.

IMHO it's an important detail left out for us to make a decent desicion. If BMI said "it's illegal to sing along to a jukebox" then it's also illegal for a bunch of drunk yahoo's to sing along to a song in a bar if it's not intended for karaoke.
PeterWright wrote on 3/22/2006, 7:44 PM
> "SInce when does anyone need a licence for what might happen?"

What a great concept Bob! - wait till I tell Mr Costello - the whole population needs a licence because it might buy a dog...
kkolbo wrote on 3/22/2006, 7:45 PM
Johnny,
Theatrical productions are governed a bit different than the performance rights of a song. Unlike the ASCAP and BMI arrangement, there is now central clearing house for perfromance rights. The script owner may set their terms as they will. There are some standard practices that are good to be aware of, since practice does bear on law.

>>That’s a good question and it depends on the production. I didn’t ask what would happen if they didn’t purchase the license. i.e., would they have to ask parents to refrain from video taping?<<

In most cases, the rights company for a play expects you to ask the audience from taping the production in any form. The license for you to make an archival tape or in some contracts a rehearsal review tape does not authorize anyone else including parents to tape the performance. A fee is generally charged to make an archival tape of the performance if it is permitted at all. Duplication of the tape for cast and families is usually forbidden. In the case of some shows, such as Cats, which we were the first school liscensed to perform (Proud Strutt here), the contract permitted (for a fee) that we could tape up to 60 seconds of the show for use in pre-performance promotion. No other taping or recording was permitted.

In the case of parents taping your show for their personal use, the exposure is most likely yours not the parents. Read your contract closely. The fiduciary relationship is with you and in most cases they place the responsibility on you to prevent the taping.

In practical terms ... we usually announce to the audience that recording is not permitted at the start of the show. I have never seen anyone using a recording device in our theatre. OK I make a point not to look.

At the point that you make a copy for others (such as cast etc) you are beyond personal use, even if personal use was pernitted by your contract. Remember that theatrical shows are governed by your contract.

A side note, BMI and ASCAP performing rights do not include incorporation of that song into a dramatic performance. Hence the reason that Disney theme park shows were music medleys for years. Adding any story or sense to the show meant negotiating specific clearences for all music in the show.

Remember also that I am not a lawyer. I am only speaking from 20+ years in theatrical production. Always consult with your attorney (particularly with schools) and let them determine exposure and give legal advise.

Oh, one other comment. One of the reasons that it is standard practice to require the script be performed as is, including coreography is because that is what the rights management company has been granted. Any other work is a dirivitve work and usually requires the author's or original producer's approval. That is a part of their contract with the rights management folks before allowing the show to be put out. We have been through that many times. We have often gained approval for changes in the shows by contacting the appropriate creator. Often it is just a phone call and an explaination that is required. Disney on the other hand is a problem. They will not let you get to the right people for approval.
apit34356 wrote on 3/22/2006, 7:54 PM
basicly, all/most federal laws are based on the commerce and the control of it. The remaining laws, except criminal, are based on concepts of "individual rights and expression of freedom", ( this is an overly simplified statement). Patents, copyright, etc exist under the "commence umbrella" . Does singing along with a song playing on a jukebox in a bar for fun and by "no means" promoted by the bar owner still constitute commence because the patrons may enjoy it while drinking ? Current thinking is that somebody must pay, so collect from the easest source whether directly or indirectly, (simply existing is viewed as promoting), promoting the activity. Lawyers know that currently trying to charge individuals would collapse their "house of cards", charging parents for recording their children would end up with the laws being rewritten and the new laws would not be friendly to their clients.

I Expect within 5 years the Supreme Court will be face with determining how far to permitt these "use" laws to extend into the ones' "rights". ------- People singing together as they walk in a theme park to an Ipod with speakers, who paids? Does their singing in a theme park constitute entertainment for the theme park visitors?
songsj wrote on 3/22/2006, 9:47 PM
A few more thoughts from my original post, I think the bar owner was stupid if for no other reason than he ignored 30 letters. when I referenced the little guy, I was thinking of the guy who DJ's a couple of weekends a month at weddings in party rooms for a few hundred bucks and people who do special occasion videos for people and would like to use music with it. Is someone really going to sell their wedding video, and can the small time DJ afford to belong to all 3 performing rights organizations. Probably not. I think the large companies are right to be concerned about protecting their copyrights in this digital age but you would think that at some point the term "reasonable use " would enter the mix and that the courts would better define it. Quite frankly as a writer I kind of view the playing of my material as long as it is not being sold or generating a lot of money as free advertising and exposure. I wonder what would would happen if everyone who belonged to a performing rights org.
sent them a letter with a bill saying I am going to charge you X amount each year or I will not play anything from your catalog. I know it sounds crazy and is the reverse of how it really is, but in reality, who should be paying who for what. As I see it both sides need each other and again I think reasonable use needs to be better defined. The very idea that you can't tape a high school production of some broadway show is crazy from my point of view. My advice is obey the laws, no sense getting in trouble, but I still feel that most of this what I call ' casual or non-revenue generating use should be allowed.
JohnnyRoy wrote on 3/22/2006, 10:28 PM
> Duplication of the tape for cast and families is usually forbidden.

Keith, Very informative post. Thanks. If that is truly the case with Disney, it will be the last time the school puts on a Disney play. I do believe the principal told the Disney rep that we would give copies to the performer and the rep seemed to be OK with that. They just said we couldn’t sell them. I’ll have to double check. These plays only include the 8th grade class (because they are graduating) and the recording is a keepsake from the school to them as graduates.

I wanted them to put on Grease but it’s a Catholic school and the principal wouldn’t go for it. ;-)

~jr
farss wrote on 3/22/2006, 11:02 PM
It's kind of funny how much effort the labels put into getting songs played on the air and then expect to get paid for the free promotion.
There used to be a time when radio stations didn't pay and if my memory serves me right they were back then they used to almost always identify the track.
Now if you hear something you like you have to call the station to find out what it was.

Bob.
Bob Greaves wrote on 3/23/2006, 4:30 AM
Although in this case I think BMI was clearly in the right. I feel that IP laws have lost theri original intent.

Section 8 of the US Constituion grants to congress the right to make laws in order ...

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

The philosophy originally was that all IP belongs to the people because its seeds and value rest in the people, but exclusive rights were granted for a limited time for purposes of promoting the development.

As I understand it, once a song has become popular and an artist has been paid for the release of it and has been able to recoups development costs and provides themselves with a living, that after a limited time they surrender their exclusive rights to the people. IP was never intended to become an investment property.

We have become a nation of sue happy greedy owners who seek to suck every l;ast nickle out of any piece of IP we can thrust upon the public. This will come crashing down eventually. The publishing industry are the biggets pirates of all. They have stolen the rights from the creative talents that created them and have rewritten our laws so that they own in perpetuity what is theirs. This also forces too many artists to stick with what has already worked (If they want to get published they will play our A&R list).

So much for limited time and a balance where promoting progress was the deciding factor for when IP becomes public property.
birdcat wrote on 3/23/2006, 4:47 AM
> I wanted them to put on Grease but it’s a Catholic school and the principal wouldn’t go for it. ;-)

So I can assume "Rocky Horror" was out of the question?
GenJerDan wrote on 3/23/2006, 4:57 AM
Bottom line is, as artists and publishers, we PAY BMI and ASCAP to do exactly what these guys did.

We who? I never signed up with them. (Or ASCAP or anyone else)

But BMI attempted to get money from me a few years ago on behalf of...well...me. They wanted so much per year from me so they could pay me my royalties. After talking it over with myself for a while, I decided it was silly for me to pay me (well, minus BMI's cut, of course) when there was so much less paperwork just leaving my money in my pocket.

busterkeaton wrote on 3/23/2006, 6:31 AM
Excellent point about quote abuse Quryrous. A lot of folks who love quotes don't understand the concept of a story or drama. They think they are quoting wisdom by Shakespeare, but you have to point out to them, actually Shakespeare had that spoken by a guy who is trying to manipulate his boss into killing his wife.
daryl wrote on 3/23/2006, 7:01 AM
Interesting thread, and here is the problem that I currently have. I have been asked to make a DVD for a small high-school class reunion. They would LIKE to have a particular song in the background, but understanding the licensing requirements, I told them that I'd probably "create" some music. Having some time before this is due, I thought I'd see if I could get permission to use the song they wanted. I am new at this, so, I looked through threads on this forum and got some starting ideas. Long-story-short, after NUMEROUS emails and phone calls, I have yet to get an answer from BMI, ASCAP, Bug Music, and others that I have found through web searches. All I have found is, from what I have read, it should cost me $.08 to get a mechanical license. And I might get sued if I don't find the correct place and get permission to use the song? You know, when I see some of my graphics or video used by someone else, such as on web sites and televison, I don't grab the phone and call an attorney to sue them, I feel good that someone liked my work well enough to put it on TV. BTW, the song is "Faithfully" by Journey if anyone know s who "owns" this song.
busterkeaton wrote on 3/23/2006, 7:08 AM
Mechanical license is just part of it.
You need a sync license because you are editing to the song.
You also need a performer's license so the musicians' get paid.
You probably need something for the songwriter too

Not sure of all the terms. But search for sync license here and it will come up.
daryl wrote on 3/23/2006, 7:28 AM
Sounds like I simply won't use the song.

It is just NOT worth the hassle, or the threat of being sued.

I guess if they like the music I create for this, I'll have to insist that they don't play it anywhere unless they pay me for that too. No, no, that's not the way it should be.

Thanks busterkeaton, 'ppreciate the info!

Daryl
craftech wrote on 3/23/2006, 7:33 AM
I understand everyone's point of view on this entire issue of copyright a little better now. I think Doug is caught between a rock and a hard place when it comes to being both a performer AND a videographer. It seems quite conceivable to me that all of this could put us completely out of business if it is carried to extremes by those looking to "protect" copyright. And that includes even wedding videography. Suppose the bride and groom choose as their "song" something that wasn't "cleared" first. Do you not tape it and tell the bride and groom, "Sorry, I didn't tape your first dance as man and wife to your song because you didn't clear it first". "I also didn't tape any of the guests dancing because the band leader refused to show me proof that he got copyright clearance on the songs they played". "As a matter of fact I didn't tape much of the reception at all, sorry guys. I DO have awesome footage of the ceremony though except for when you left the church. The organist played something contemporary I wasn't sure about so I left that out". And now with DJs being more common at weddings it's even worse, isn't it?

John
JJKizak wrote on 3/23/2006, 8:06 AM
And what about when the people were singing along with the songs?

JJK
daryl wrote on 3/23/2006, 8:23 AM
"and what about the people singing along with the songs?"

If they are really bad, like me, it's probably ok, but if they can carry a tune, LOCK 'EM UP!!!

It's kinda like a speed trap, "didn't you see that speed sign, behind the tree?"

winrockpost wrote on 3/23/2006, 8:34 AM
I sing along with music while driving in my car,, leave the windows up in case a secret agent pulls up next to me.
riredale wrote on 3/23/2006, 8:36 AM
Sigh...

It seems like every few months a thread like this one pops up, gets 50-100 responses, and then dies when everyone gets "Copyright Fatigue" and ignores it.

Just face the fact that, under the current system of laws in the USA, we are all in violation of some aspect of copyright at least part of the time. If there's a lot of money at stake, they'll go after you; if not, they'll ignore you. As I've said before, it's like the stop sign law: you are required to come to a COMPLETE STOP at every stop sign; how many times in a day do you break that rule?


BTW: "Copyright Fatigue"--pretty good, eh?

Just don't try to use this phrase without getting clearance from me first. Also, don't try to be clever by calling the syndrome "CF", or "CoFa", or something else. I've got rights to those terms too, and I can put you out of business if I want.
johnmeyer wrote on 3/23/2006, 8:38 AM
Bob -- Amazingly good point and excellent quote from the Constitution. I'm not sure I've ever read that, but sure enough there it is, with the key phrase ".. securing for limited times to authors and inventors ... " (my emphasis)
Spot|DSE wrote on 3/23/2006, 9:01 AM
Double sigh....it's all mass hysteria.You call it Copyright Fatigue, we call it "Copyright Hysteria" (among other things) but at the end of the day, it's a bunch of "Chiken Little."
You can record a band performing at a wedding, so long as it's not used as an editing base, and so long as you're not recording it with the intent of the music being the main thrust. It's ancillary. In the wedding business, it's not an issue. The only real issue the wedding industry faces is the ripping of CDs for background music. That is where their tit is in a wringer.
There is no law, and never will be, against singing along with a jukebox, iPod, whatever. If the BAR has a Karaoke, where they allow people to sing along, then they are required to have a license to do so. It's not the same as carrying an iPod, which is a personal device.
Just like you can have a stereo in your home, of course. But having a stereo in your bar, means you are piggybacking on someone else' license.
Someone said that BMI or ASCAP tried to strong arm them. BS. I don't buy it. Not for one second.
Just a coupla years ago, I decided to experiment with some music I didn't want to put my name to. It got minimal airplay on college stations and community radio, and used (primary reason for composition) in a low budget, low class, late night movie. To this day, no one has come knocking to want money from me, or to ask me to join. They could easily track me down if they wanted to.
PUBLISHERS on the other hand, generally force artists to sign up for one or the other of the 3 offerings. Because the publishers get a share of the collected revenues.
Membership in BMI/ASCAP is free for writers, but you cannot become a member unless you can demonstrate 3 publically released works from some agency other than your garage. Read the application.

Being a member offers you zero benefit as a videographer. They cannot issue sync licenses, which is required for putting music to video.
They're not going to come to your home to stop you from singing in the shower. They're not even going to come to the bar in your neighborhood and bust you for singing with the jukebox.
They WILL however, come to the local bar to be sure they have a license to be playing the music. And most jukebox vendors specifically state in their lease agreements that the lessee of the jukebox "is responsible for and must pay all related licensing fees for public performance of copyrighted works."
ASCAP and BMI bend over backwards to try to not go to court, because they simply don't have the funds. If you're a member, their records are quite accessible. It's easy to see how much money is being spent and where. And no one is making millions working for ASCAP or BMI. SESAC....maybe. But as far as I'm concerned, they're pond scum.
craftech wrote on 3/23/2006, 9:23 AM
ASCAP and BMI bend over backwards to try to not go to court, because they simply don't have the funds. If you're a member, their records are quite accessible. It's easy to see how much money is being spent and where. And no one is making millions working for ASCAP or BMI. SESAC....maybe. But as far as I'm concerned, they're pond scum.
==========
Doug,
Maybe we're all confusing them with the RIAA and the stuff they pulled on 12 year olds and their mothers. I admittedly don't know much about any of them.
John