September 16th, 2011
Securing the rights to perform, commission, record, or distribute music gets more complicated with every technological advance—here are basic guidelines to keep your chorus on the right side of legal.
For most choruses, doing the rights thing is simple: If a work is in the public domain, which is to say it was never under copyright, or the original work and all of its affiliated rights have expired in the United States (the arrangement, the translation, the edition, the revised edition), you are in the clear. If you are not sure a particular piece is under copyright you can check with the U.S. Copyright Office.
No copyright claims? Public domain? Green light? Sing, record, distribute, enjoy!
If the work is under copyright you'll need to have either an individual or blanket license from the agency that represents the performance rights of the composer and publisher, namely the American Society of Composers, Authors, and Publishers, Broadcast Music, Inc., or SESAC, unless, of course, you are performing a staged version with costumes, lighting, and movement, in which case you'll have to secure grand rights directly from the publisher.
To record your concert or rehearsal you'll need to secure a written release from each singer, soloist, and instrumentalist (double-check those AFTRA, SAG, and the AFM union rules) and, if you choose to distribute or sell your recording via CD, download, streaming, jukebox, kiosk, or ringtone, you must secure a mechanical license through a service provider, such as the Harry Fox Agency or Limelight, a service of RightsFlow. Is your chorus performing a copyright work for film, television, advertising, or video games? The chorus or producer will need to contact the rights holder directly to negotiate synchronization rights, unless you are using an existing recording, in which case you'll need master rights from the record company.
Please don't steal the music: Rent or purchase scores and parts in accordance with the publisher's policies. The road to perdition is paved with unauthorized photocopies.
You can now take a breath, because lucky for you, if you have commissioned a work, the composer is solely responsible for licensing copyright text (though it couldn't hurt to put that requirement in the commissioning agreement). But if the composer has not negotiated the right to print the text or libretto in your program book or on your website, it's your responsibility to clear it with the author and/or translator and/or his agent and/or his heirs. And never, never, never change a note in the score or a word in the text without the express written permission of the composer, publisher, author, or translator.
And finally, please don't steal the music: Rent or purchase scores and parts in accordance with the publisher's policies. The road to perdition is paved with unauthorized photocopies.
Confused? Confounded? Beleaguered? Welcome to the music business," says Jeff Van Driel, director of business and legal affairs for Naxos Records.
No One-Stop Shopping
"There is no one-stop shopping in the United States when it comes to securing rights," says Frances Richard, vice president and director of concert music at ASCAP, by way of explaining why so many entities are involved in the copyright community. Under U.S. law, copyright is not just one right, but a bundle of rights granted to the author or creator of an original work, including the right to control copying, distribution, and adaptation of that work.
Like its intellectual property siblings, trademarks and patents, copyright arose out of English common law as a public policy designed to encourage creativity and economic growth, and this is not some hobgoblin music industry bureaucracy: Copyright emanates from Article I of the Constitution, has been codified and extended repeatedly by Congress, and has been sliced and diced by the Supreme Court, which has consistently upheld the rights of creators.
To maintain the proper checks and balances copyright law has evolved such that each right concerning concertizing—printing, recording, performance, distribution—must be negotiated separately, even when those rights appear to overlap. And just because you don't see the (c) mark at the bottom of the page does not mean you are in the clear. Copyright law does not require that a work is formally registered. "A composer is protected just by writing the piece," says Richard, but registering it enhances the ability to litigate in the event the copyright is infringed upon.
"For a performance in the United States there is not much of an excuse for violating copyright," says James Kendrick, an intellectually property attorney who is also president of European American Music, which publishes a large catalog of choral music. "If somebody has happened across a manuscript that has absolutely no identification whatsoever that's pretty negligent on the part of the composer," says Kendrick, "but the chance of that being the case is minimal even within the vast amount of choral music."
The Library of Congress manages the copyright registration process and its online tools make it fairly easy to eliminate the question of copyright, particularly if the work was written after January 1, 1978, a watershed date at which the Copyright Act of 1976 went into effect. Though amended several times, the Copyright Act remains the foundation of U.S. Copyright Law.
Beneficiaries in the Rights Food Chain
The musical-industrial complex may appear to be bloated, and indeed each agency along the way takes a little piece of the pie, but ultimately the primary beneficiaries of the rights food chain are creative artists. For some artists in the choral field royalties are merely a supplement to their income. Alice Parker, the distinguished choral composer-conductor-pedagogue and longtime arranger for Robert Shaw, considers herself tremendously fortunate that Shaw gave her a piece of the royalties from works he popularized, which has included print and performance royalties for more than 50 years. "I never think about the money," says Parker, "but when it comes in I'm always grateful and surprised."
Commissions and speaking engagements are a significant source of income for composer Libby Larsen, among the most frequently performed contemporary composers, as are sales and rental income from works she has placed with Oxford Music and E.C. Schirmer Publishing, but she says, "Without my ASCAP income I could not continue to create art the way I create it. It is the center point of my cash flow. It enables me to project how I am going to put bread on the table."
Performance rights organizations (PROs) not only collect fees for rights holders but also manage policy and political issues, from judicial and legislative actions to trans-border collection of funds and rights enforcement. Though ASCAP, BMI, and SESAC compete to woo composers to their fold, and are subject to federal oversight via rate courts, they are more "frenemies" than competitors.
"Across the three organizations there are issues that we support each other on, foremost of which are strong copyright and value for songwriters, composers, and publishers," says Richard Conlon, senior vice president of corporate strategy, communications, and new media at BMI. Other priorities for PROs include educational programs and competitions that foster opportunities for composers of all ages. (It should be noted that while SESAC does not have a significant body of concert composers, there are SESAC member songwriters and publishers whose works have been arranged for chorus.)
Releases for Recordings
Recordings of any kind must receive releases from all performers and creators, as well as licenses from the appropriate agencies. Traditionally a chorus had to go it alone with the Harry Fox Agency to secure a mechanical license, but nowadays there are several third-party service providers, such as RightsFlow's Limelight service, distributors like CD Baby, and recording companies like Naxos, each of whom can ease the process.
Van Driel of Naxos, which produces and distributes unusual and contemporary repertoire and provides those services to other labels, says choruses should be careful when establishing their own recording programs, and even more careful in entering ventures with others. "Just because someone calls themselves a label does not mean they know what they are doing," he adds. "The label needs to be sure it has secured rights with respect to all the artists."
Patrick Sullivan is president of RightsFlow, whose Limelight service, designed specifically for choruses, bands, schools, and churches, provides a one-stop source for CD, digital, and streaming distribution rights. Sullivan calls the recording portion of copyrights "a complex marketplace" and cautions that a right you have cleared for your live performance or recording does not automatically extend further down the line to new media.
As an example, Sullivan cites choral arrangements, often a sticky area for choruses. "Even a choral or orchestral work derived from Beethoven or Mozart could be copyrighted if it was arranged by a specific person or organization," he says, and that arrangement will need to be licensed for each medium.
Still, the advocacy of service providers with regard to recording can be trumped by rights holders at any time. "It's industry standard that when people give you a CD of a performance you can use it for public relations purposes as long as you don't sell it," says composer Kurt Erickson. For a variety of reasons—money, quality, policy, union agreements—copies of recordings for rehearsals or performances can be withheld, even from the composer. "And a composer without a recording is dead in the water," says ASCAP's Richard.
Securing Rights for Copyrighted Text
Few areas in rights management are as frustrating as the process for gaining approval for the setting of copyrighted text to music, and though the onus is on the composer, not the commissioning body, the consequences have a direct effect on artistic choices for choruses, for whom the words are as important as the music.
Say the words "text" and "rights" to a composer and you'll unleash a torrent of horror stories about commissions that were delayed or derailed or reworked with alternate texts because licenses could not be negotiated due to intransigent or unresponsive authors, publishers, literary agents, or heirs who, in their role as fiduciaries, end up blocking profound opportunities for artistic collaboration.
"I've learned from bitter experience not to fall in love with texts until I have secured the permission," says Larsen. Her strategy has been to stockpile texts, launching the process of securing the rights when she identifies a poem she admires, whether or not she has a commission in queue.
Erickson says, "When you try to get the rights from a living artist they tend to be flattered and positive about helping the project come to life. When the poet is recently deceased and you are dealing with an heir—typically a son or daughter—those people are less inclined. They are more protective over the reputation of their ancestors."
Getting to the correct owner of the copyright of the text can take considerable time and effort. A composer flips through an anthology of poetry, finds a work that sings off the page, and tries to contact the publisher of the anthology. But does the anthology own the copyright? Have they obtained rights from the proper source? Can they authorize re-use or do you have to trace back their reprint permissions until you find the source? The process can take many months, with unanswered phone calls, letters, and emails, all with the pressure of working under a commission deadline.
Getting to "yes" is just the beginning of the battle. Will the rights holder insist on verbatim usage (not a mark, emphasis, syllable, or word can be changed or repeated) or allow adaptation, permitting the composer to adjust text and meter and repeat portions of the text? For some composers a verbatim clause is a deal-killer, a complete negation of the essential SATB contrapuntal foundation of choral music.
What kind of attribution does the rights holder require and how/where will his name appear in relation to that of the composer? And if there is a translator or arranger, how will she be credited? And of course there is the matter of royalties. How much and how paid? A lump sum up front or a percent of sales for printed works? Agents have been known to ask for a percent of the gate—a piece of the pie for every ticket sold for each performance—as if choruses generated cash like rock stars.
Defining the Rights
Among the stickiest issues is the nature of the rights accorded. Non-exclusive rights in perpetuity are the ideal ("You'd like exclusive rights, but that would be an Andrew Lloyd Webber wish," says Larsen.), but what happens if the rights holder requires a renewal clause? Once a work has been set in temporal time you can't exactly swap in a new text if, when the rights expire, the copyright holder (or her heirs) decline renewal, or worse, see an opening for opportunistic renegotiation.
Megan Jackson, a permissions manager for publisher W.W. Norton, whose anthologies are a source of inspiration for creative artists, grew up in a family of singers and sang in her college a cappella choir, so she is sensitive to the needs of choruses. Ironically, she says, she often finds herself in the same boat as composers when she tries to secure rights. "It's slightly different in that we are not changing the work—we are not setting it to music—but I've certainly found the same difficulties when I have requested permission," she says. Like composers, her efforts require "convincing and money," but she also asks empathy for her colleagues in the book publishing world. "It's a matter of time and resources," she says.
"Generally the composer's right to set the work to music encompasses the right for the text to be available for programs," according to Patricia O'Kelly, managing director of media relations for the National Symphony Orchestra, which performs frequently with local choruses. However, "It varies from concert to concert, or from publisher to publisher," she says. "If I have a specific question, I'll go to our principal librarian, Marcia Farabee, who has worked out the rental agreement. In some cases, the program annotator will have been in touch with the publisher, and the writer gives me a heads-up if he knows there will be an unusual issue or a fee."
She notes that in choral-orchestral collaborations the responsibility rests with the presenting organization: If the orchestra has invited the chorus it's the orchestra's responsibility; if the chorus has engaged the orchestra, the chorus takes the lead.
Farabee notes that the right to reprint the text in the program book conveys as long as the program is distributed for free. If, however, the organization is selling the program, the chorus would be advised to contact the rights holder of the text directly. (The right to print the text in your program notes may not extend to posting them on your website or using them as liner notes for a recording, so be sure to confirm those permissions separately or as part of a blanket agreement.)
When crediting the author of the text be sure to credit the arranger and/or translator, too, and keep in mind that while the original text may be in the public domain, the translation of the text or narration may be under copyright. As an example, O'Kelly cites Bernstein's Kaddish: The original prayer is in the public domain, but Samuel Pisar was asked by Bernstein to write a new narration, which is a copyrighted work.
Paying the Publisher
At European American Music, Kendrick oversees a wide range of choral composers from Mahler to Tippett to Mulholland. (Mahler? Yes, certain editions are still under copyright). From Kendrick's perspective one of the most egregious copyright infringements is the photocopying of copyrighted material, and choruses—amateur, professional, and religious—are among the biggest scoundrels.
Some publishers offer downloadable files with the purchase of a reprinting license, but most still sell parts through retail distributors such as the Hal Leonard Corporation. Like many publishers who have watched the incursion of photocopiers into their business for the last 40 years, Kendrick concedes there is little capacity for enforcement, but cease-and-desists are issued from time to time. "If we observe a concert where it is very clear that performers are working from photocopied parts we will contact them," he says.
It's not just a moral issue. It's a financial issue. "I have two words," says Kendrick: "Carmina Burana." Copyrighted choral works can be best-sellers and, when a work has been established with an edition that does not need to be corrected it has substantial market profitability. Kendrick can cite a number of living, "name-brand" choral composers for whom the sale and rental of works generate significant income for European American Music and the composers it represents. For self-published composers, who have taken upon themselves the risk of producing, promoting, and distributing print and rental music, and who lack the capacity to monitor abuse, the bite is even harder.
For composers, the evolving technologies for copying and scanning offer benefits too. "Technology breaks down a lot of the geographic boundaries," says Erickson. "I can send a PDF to the east coast in seconds versus someone having to order it, then I have to stuff it in an envelope, and maybe they get it in a few days in which time they may have lost interest or looked elsewhere."
But the other side of the boon is the bane: Programs that enable a musician to scan a score and then manipulate or adapt it are fundamentally "tools for copyright violation," says one music industry figure, citing a situation where a chorus not only re-arranged and printed its own version of a copyrighted work but changed the words and recorded the piece for broadcast.
The Digital Frontier and New Media Licensing
According to Conlon, BMI has issued more than 7,000 new media licenses and he is amazed at the performance data coming in from digital licenses, such as smart phones and tablets. "We are seeing billions of performances of millions of titles every quarter," he says, a result of technology enabling music to move beyond the time constraints and editorial prerogatives of traditional venues (live, radio, television, cable) to a model where consumers pull music on demand. The result is performances of more titles, including those that may have never made it past the top 400 favorites. "It's good for consumers and great for art," Conlon says.
Choruses lag the pop world in mining the possibilities of social media for marketing, communication, and revenue, but Conlon sees the potential on the horizon. "I think this is a big opportunity for niche marketing, for choruses just to have another outlet. The social nature of digital media allows the creation of global forums, virtual places where people with an interest in choral music can congregate. It's possible to create communities around wonderful slices of art that we couldn't before."
Krista Blackwood, founder, music director, and chief blogger of Octarium, tracks visitors to her chorus's website and is well aware that web traffic, 40 percent of which is under age 25, is a significantly younger demographic than their overall audience base. "When I look at my reports from CD Baby (the distributor Octarium uses to manage its CD and digital recording program), most of it is iTunes," she says.
But Blackwood acknowledges that it is the interplay between music and social media rather than the Octarium brand itself that breeds their popularity. "We are not Chanticleer. We are not The King's Singers. Nobody goes searching for Octarium," she says. Instead, it is serendipity within a defined environment that pulls in new audience: An iPerson goes on iTunes searching for Daniel Gawthrop's "Sing Me to Heaven," alights on Octarium's rendition, and, if they like the sound of the ensemble, downloads or purchases their entire Essentials album.
Blackwood is delighted that listeners are able to penetrate what she calls "the cacophony of crap" in the digital universe. It's every creator and performer's dream to go "viral" in cyberspace, to have a work take on a life of its own and spread rapidly across the globe. But what makes a work go viral? "That is the Holy Grail question," says Amelia Northrup, a researcher at the Center for Arts Management and Technology at Carnegie Mellon University and author of Social Media, Video Footage, and the Law: What Performing Arts Managers Need to Know.
Funny helps, but funny alone is not enough. "The key element is whether it has some kind of universal truth and at the same time has appeal to a specific segment of your audience," says Northrup. "It makes someone say 'I have to share this with other friends who are singers.'" The music itself can be the catalyst, but comedy can be propulsive. As an example she cited the Xtranormal video "You Should Take Voice Lessons," a global YouTube hit among professional singers.
Not everyone is thrilled at unbridled and uncompensated distribution. Professional music unions have a stake in ensuring that the fruit of their labors is harvested. The halcyon days of radio broadcasts and long-term recording contracts have ended, but now there is still the Wild West of social media, with its infinite opportunities for creating new forms of revenue, but also for its definite potential for unauthorized replication and distribution.
"Musicians have worked for years honing their craft and they rightfully expect to see recognition and payment for the work that they do," says Northrup, "but it becomes difficult with social media because it is a highly uncontrollable environment." She sounds an optimistic note in observing that unions throughout the arts—actors, singers, and instrumentalists—have been "increasingly progressive" in negotiating mutually beneficial contracts, although there are variations depending on the genre and the union local.
Now there is the Wild West of social media, with its infinite opportunities for creating new forms of revenue, but also for its definite potential for unauthorized replication and distribution.
If an overly enthusiastic chorister, audience member, or staff member uploads your performance without asking permission, what are the risks? The legal system and technology don't always go hand-in-hand, and there are numerous gray areas if a file is uploaded to a website, to a social network, or to a video streaming service such as YouTube.
According to attorney Kendrick, "If the chorus has condoned it there would be some possibility of liability, but if the chorus is not in any way responsible for their performance being posted, then only the person doing the posting is responsible." Nor is the chorus responsible for rectifying the infringement. "The copyright owner is responsible for the take-down notice," Kendrick says. "The chorus is not required to serve one on behalf of someone else."
When the posting is authorized, there is still the responsibility for licensing, and if the chorus has all its rights ducks in a row, that responsibility flows downstream. "YouTube is responsible for clearing the copyright for works that are posted and they have done that in the marketplace somewhat successfully," says RightsFlow's Sullivan.
"Facebook is a gray area and has not taken on any responsibility and not set up a licensing mechanism," says Sullivan. "Consequently the copyright infringement of works that are self-uploaded occur as a result of Facebook turning a blind eye." He suggests that if a chorus should see or hear its work used in any medium without authorization and has concerns about its usage it would be best to notify the owner of that network and its internet service provider simultaneously. "The goal is to hit the source and get them to take down connections and re-links," he says.
Erikson believes the anxiety about unauthorized use in cyberspace is more about the concept of theft than the actual money. "I really don't think money is as much of an issue among classical composers as it is in the commercial or pop world. Maybe because there's not so much money involved. You just don't hear anecdotal stories about someone stealing an SATB score." How would Erickson feel to discover a performance of one of his works posted on YouTube or someone's Facebook page without his permission? He says he'd be happy to have the publicity. "They want to have my piece on their website? Great! Maybe a choral director will want to perform it!"
There's one right that choruses should check into: their own. By joining SoundScan), a service of the Nielsen company, a chorus can track sales of recordings, audio, or video via retail, wholesale, or digital distribution. Registration is free and the data will enable you to collect funds that are due to the chorus as a performer. It's quite possible that there is money out there waiting for you.
Chorus America has compiled a list of websites and resources to help your chorus stay on the right side of legal.
This article is adapted from The Voice, Summer 2011.