June 19th, 2018
Now more than ever, it’s important for choruses to understand their rights and responsibilities regarding the use of published music. New technologies are changing the way organizations purchase and use copyrighted materials. To complement a session at the 2018 Chorus America Conference, five music publishers talk about the key questions they are facing.
Tom Dean is not a lawyer, but thanks to his experience teaching, doing graduate research, and working in Classroom and Choral Product Sales for music publisher J.W. Pepper and Sons, he knows copyright. Over the years, he’s also come to realize that this knowledge is not necessarily shared widely in the choral community. The types of copyright questions coming across the transom at Pepper feed his doubts, as do some practices—like illegally photocopied scores—that he’s witnessed in rehearsal and concert halls.
Dean wondered about the reasons for the knowledge gap he observed, so he decided to conduct an informal survey. He asked a few musically educated friends and colleagues, Did a professor ever give you a photocopied piece of music? Did you sing with a choir that passed out copied music? Most of them responded that they’d witnessed these practices. “That was very telling,” Dean says. In effect, these people were being taught that the practices are acceptable.
When choruses don’t abide by copyright regulations—for whatever reason—publishers lose sales and composers do not receive the royalties they deserve, so they take the issue seriously. “I can’t talk percentages of sales we’re losing but it’s a high number,” says Scott Foss, concert and classical choral editor at Hal Leonard Corporation. “And it’s stealing from the composer,” he adds.
To be clear, Foss, Dean, and their fellow publishers do not believe deliberate theft is rampant in the choral field. Dean feels issues arise “mostly because people feel copyright law is complex and they don’t understand it. So they just go with what others have told them.” The right answers can be hard to find. In hopes of helping to set the record straight, Dean organized a session for the 2018 Chorus America Conference involving Foss and four more industry colleagues.
New Technology, New Complications
Another of the session panelists, Mark Lawson, president of ECS Publishing Group, recalls that sorting through copyright requirements used to be less challenging. “I’m 60,” he says, “and in all my time in publishing, there’s never been as much change as is going on right now.” Driving the change is the ubiquity of smartphones and tablet computers. They have become integral to our lives, observes Dean. People can carry their favorite music recordings with them wherever they go. E-publishing of scores and increasing use of tablets make it “easier than it ever has been to make a copy of something,” notes Alec Harris, president of GIA Publications, who’s another of the speakers. Whether you’re talking about a photocopy or a digital file, music people seem to realize that duplicating copyrighted material is against the law, but Dean knows there are many who don’t think the law has caught up with 21st-century life: “A lot of people are asking, ‘Why can’t we, or when can we?’”
In the area of media production and music distribution, innovations have made it easier than ever to get recorded music in front of the general public. Recording technology has become so accessible it seems anyone can be a media producer, says Lawson. YouTube, Facebook, and similar websites have created a seemingly wide-open marketplace for sharing recorded performances, but they also have made copyright clearance more complicated. “When I came up though music schools, I didn’t worry about [copyright] till I had to make a CD,” he says, “and even then, it was very simple.”
Dean has noticed that many friends in the music business post their concerts on Facebook, presumably in the innocent spirit of sharing what’s going on in their lives. But unless they’ve cleared the rights, he points out, it’s not legal: “Facebook is not paying anybody” for the right to use published music. Interactive streaming services such as Spotify are doing that, but in the current environment royalties can go unpaid because the recordings they use don’t always identify publishers. A blanket license for streaming recorded music compositions, similar to ASCAP’s performance rights license, may be an answer, but until recently nobody has been prepared to put a price tag on these rights, says Lawson. “We’re all still scrambling to figure out how to handle it.”
Making Things Easier
Not only does new technology make it simpler for performers to create and distribute recordings, it makes it simpler for rights-holders to see they’re doing it. Composers can click around the web, sometimes guided by Google Alerts, searching for unlicensed streaming of their music. When they identify copyright violations, they may alert their publishers, who in turn might issue “takedown orders.”
Recent developments in Congress sound a more positive note. There’s new legislation on the horizon that’s designed to help sort through the often-confusing process of obtaining licenses. If enacted, the Music Modernization Act (MMA) would provide for an entity to which copyright holders would report music titles and other pertinent data. It would be similar to the existing organization SoundExchange, which licenses the use of sound recordings on digital platforms.
The MMA aims primarily to help rights holders and streaming music services. But choruses wanting to stream a performance or make a CD will also see “a big difference,” says Dean. The MMA will make the licensing process “far more clear and transparent,” he believes. The Mechanical Licensing Collective, as the new entity is being called, would create “a one-stop shop,” says Lawson. Although the Harry Fox Agency is the name most frequently associated with mechanical licensing, “they have never represented all of the publishers,” he says. “There have always been a pretty large number of publishers who only licensed things directly.” The legislation has strong support from music and recording companies, Lawson adds. “It’s a big deal for the music industry.” In April, the House of Representatives approved the MMA by a unanimous vote. As this issue of the Voice goes to press, the bill is under consideration in the Senate.
When it comes to score distribution, Lawson says publishers are working on digital rights management (DRM) approaches that would track sheet music downloads. For music that is downloaded, then printed and given out to members of a chorus, new stamping technology places dates and the number of copies purchased on the PDFs. It’s not perfect, Lawson says, because the PDF can be emailed: “It’s still based on the trust model.”
On the more distant horizon is technology that would track downloaded music that’s shared on tablet devices. About that there are “tons of questions,” says Lawson. For one thing, a church or school may hold the license to a piece of sheet music, but the file may most conveniently reside on an individual’s iPad. “So how does that file get disseminated?” he wonders. “How does it get stored and protected?” Because the tech landscape shifts quickly and continually, “all of us have been confused somewhat about what to do,” Lawson admits. Lending libraries provide a possible model: “You check out a book and have it on your iPad for a certain time.” In that way, acquiring music would be like a long-term rental, Lawson says. “I do believe this is going to be clearer and easier in the future.”
We may struggle to adjust when new technology raises new uncertainties, but Foss feels copyright conundrums often become clearer if we focus on two fundamental questions: “1) What is the subject of the copyright? and 2) Is the copyrighted property being duplicated?” The piece of published sheet music you have in your hand? That’s copyright-protected intellectual property. Are you thinking about running it through the photocopier? It’s unlikely you have the right to do that. Better call the publisher to find out what options you really have.
A Choral Copyright FAQ List
Many of the copyright questions choral directors bring to Foss and his fellow publishers arise from the assumption that there must be exceptions, and from uncertainty related to their application of new technology. Here’s a sampling of the most common queries these publishers receive, along with guidance supplied by Tom Dean.
Q: What are the differences between what educational institutions are permitted under copyright and what community groups are permitted?
Educational institutions appear to be more clearly entitled to invoke the legal doctrine known as “fair use.” It permits the unlicensed use of copyright-protected works in activities such as teaching, scholarship, and research. But community performing arts organizations may also be able to apply fair use in their nonprofit educational efforts. According to the U.S. Copyright Office, “Courts look at how the party claiming fair use is using the copyrighted work, and are more likely to find that nonprofit educational and noncommercial uses are fair.” Courts weigh other factors as well, so it’s wise to get an attorney’s advice regarding the strength of any fair use claim you’re considering.
Dean has noticed conductors often cite fair use to justify making practice recordings to help their groups learn a piece. But it’s not fair use, he says, not even in school settings. For that kind of use, you need to apply for a mechanical license from the Harry Fox Agency (see below).
Q: If I have a copy of the sheet music, am I permitted to make a digital copy for either my computer or tablet to use when directing or performing? Are choir members permitted to do this?
The blunt answer is no, says Dean. “By copyright law, you are not ever allowed to copy music, period, whether it’s digital, using a photocopier, whatever. Even if it’s an emergency—say you’ve lost a piece—you have to buy it again.” New digital rights management (DRM) technology may provide new options (as mentioned earlier), but “we’re not there yet,” says Dean.
Q: Am I allowed to share a sheet music PDF download that I purchased for my choir with my choir?
“If you bought a PDF download and you also paid for the right to make copies for each member of your choir, you can share it,” says Dean. If you share them in digital form, the situation becomes tricky, he says. “How do I now get my 60 copies back?” That’s part of the DRM puzzle that publishing industry technicians are trying to solve, but for now he advises that you ask chorus members to delete electronic scores from their devices after the last scheduled performance.
Q: Who is responsible for securing performance rights?
This is a gray area. Dean says that as far as ASCAP, BMI, and SESAC—the major performance rights organizations, or PROs—are concerned, the performance venue is responsible for obtaining this license. Schools are exempted if it’s a school performance, but a community chorus using the school auditorium for its own concert is not. Dean finds that most public auditoriums, college auditoriums, and even churches pay these rights regularly—especially those that have many performances by various groups. If you’re working with a school or another venue that’s less accustomed to outside performances, Dean would urge you to ask whether it has secured performance rights and if not, apply to the PROs yourself.
Q: If we don’t charge for a concert, do we still need to secure performance rights?
For a community chorus, it doesn’t matter that a concert is free, Dean says. But schools aren’t required to obtain licenses for school performances (see above), and the same goes for music used at churches during worship services.
Q: May I livestream my concert? Do I need a license? How do I get one?
You may, and for this you need a performance rights license from one of the PROs.
But let’s say that in addition to, or instead of, the video or audio livestream, you plan to post a recording of the concert on your website or elsewhere. In either of those cases, you will need another license. If the recording is audio-only, you must obtain a mechanical license—just as if you were making a CD (see below). If the recording includes video of the performance, you will need a synchronization license.
The publisher will know who holds rights to the piece in question and can confirm the kind of license you will need, so that’s the best place to start. (The rights holder may be the publisher, the composer, or another person or legal entity.) Publishers welcome these inquiries. Some have entire departments set up to respond to them, so when in doubt, don’t hesitate to call.
Q: May I post pieces from my concert on YouTube? Do I need a license?
“This is where it gets a little hairy,” Dean says. Right now, many music publishers allow YouTube to use their music and in return YouTube gives them some of the revenue. Dean says it’s best to check with the publisher before posting on any media-sharing site, even YouTube. The publisher of the music you want to stream may not have a deal with YouTube. And the publisher almost certainly does not have a deal with another site. If you find that no agreement exists, then secure a license as described above. This process will change if the Music Modernization Act becomes law.
If you post a performance without obtaining a license and the rights-holder sees it, you may receive a takedown notice. If that happens, Dean says, “Comply immediately!”
Q: May I podcast my concert? Do I need a license? How do I get one?
As with streaming of recorded concerts, you may podcast a concert if you get a mechanical license from the rights holder. Again, the Music Modernization Act, if passed, will simplify the licensing process.
Q: Are we permitted to record a concert for our own use (archival or rehearsal)?
This falls under fair use guidelines, Dean says. A community chorus may make a single recording of a concert for archival or rehearsal purposes without paying a fee.
However, these recordings may not be posted online, even to help your singers rehearse on their own, nor may they be used for marketing or promotion.
Q: If we want to record and distribute a performance, what is the procedure and the cost? Are there different costs for digital vs. CD?
Some publishers manage this process themselves, but in many cases the task is handled by the Harry Fox Agency, perhaps the best-known of several organizations that work on behalf of publishers to collect and distribute fees for mechanical licenses, which cover audio reproduction of the copyrighted work. Working through Harry Fox is “easy to do,” says Dean. “They have a nice web interface that takes you through it step by step.”
If the performance is less than five minutes, the cost per copy will be 9.1 cents. For longer performances, the cost per copy is 1.75 cents per minute or fraction thereof. Whether you plan to market the recording as a CD or a digital recording file, the cost is the same.
Cost is a built-in obstacle for many choruses as they contemplate the prospect of clearing rights. At Pavane Publishing, founder and president Allan Petker says he fields “an awful lot of requests from churches and schools and community choirs” that cite their nonprofit status in hopes it will get them a price break on permission to make or distribute a recording. As a conductor of nonprofit choruses himself, Petker knows where they’re coming from. “As lovingly as we can,” he says, “we point out that 99 percent of our customers are nonprofit” and that “our writers need to be rewarded for the work that they’ve provided.” Petker wears a composer’s hat too, and he considers his compositions—his intellectual property—his “number one asset.”
The limits of technology, human understanding, and human patience make 100 percent compliance with copyright law a goal that few mortal choir directors would be willing to contemplate. Knowing that, Petker has adopted what he describes as “a Nordstrom’s philosophy.” Like the well known, customer service-focused department store chain, he believes most of the chorus people he deals with are “really good and want to pay for what they’re purchasing.” He senses that they respect copyright, and he feels it’s incumbent on publishers to work with choral leaders to help them understand it better. As Harris puts it, “We see choir directors as our partners.”
At the same time, he says, “we want to support composers, and give them an incentive to create great music.” Foss picks up the thread: “If we get great music in the hands of singers,” he says, “we’re all successful together.”
Don Lee is the managing editor of the Voice, as well as a media producer, editor, writer, and amateur choral singers who lives in St. Paul, Minnesota. At NPR in Washington DC, he was the executive producer of Performance Today.