First of all, copyright laws exist for a noble cause, that of insuring that creators and publishers of music and other creative works are provided with a means of earning income from their efforts when we enjoy them. Few would argue that they do not have that right.
As new publishers ourselves, we have had to do a lot of learning on how the copyright world works. After reading this article you will be able to appreciate why Redgrave Creative Productions has included limited non-commercial performing rights within our sheet music licenses to reduce the financial burden on nonprofit, non-commercial performing groups.
Unfortunately, the issue of copyright licensing for school and non-profit community groups has become more contentious in the past few years. It is in large part the result of changes in 21st Century technology that enables more aggressive enforcement of the law. You need to know that all the laws discussed in this article were passed in way back in 1976 and have been in force since 1978, but active enforcement for small non-profit and school musical groups has been minimal to non-existent until the last several years.
Many people will be surprised to learn that purchasing sheet music only grants the buyer with the right to rehearse and play the music within the confines of the home for friends and family. This is an artifact of the late 1800’s when the playing of piano sheet music in the home was the most common means of hearing popular music. The original copyright laws recognized that era and incorporated it into the law.
Today, as was the case then, any other for-profit performance of music is considered “public” and requires permission (licenses) from the composer and publisher. Before 1978, there were also broad exceptions for non-commercial nonprofit uses, but the 1978 law significantly restricted fair use and royalty free use provisions. Section 110 of the Federal Copyright law defines the limited circumstances where music can be performed without first obtaining a license. These include:
- Face to face teaching by teacher to student in a classroom or space where teaching is done
- Performance in the course of a religious service
- School Concerts, but only if the performance is offered free to the public and no one present gains any direct or indirect commercial advantage (money changes hands).
- The exception to this rule is in cases where 100% of the proceeds are returned to the school or a charity.
- This exclusion fails if anyone (aside from a teacher) receives any form of compensation.
A key point considered in the law is the exchange of money coincident to a performance. In the case of a nonprofit community band, conductor stipends, pay to an office assistant or any membership subsidies to offset dues can be used to disqualify the exemption. Placing ads in a program in exchange for donation can also be a disqualifying act since the businesses gain indirect commercial advantage. Even a band booster cookie sale in the lobby coincident with a concert could be an issue.
In the case of a high school, if a high school marching band takes the field at a football game, they legally must purchase performance licenses because there is a gate fee to attend the game that does not go entirely to the band. They are not exempt. Band directors have lost their jobs over this.
On top of performance licenses there are other additional music licenses that may be required. These include:
- Arrangement licenses if anyone other than the composer/publisher makes an arrangement of an existing piece for a marching band or a small ensemble during a concert.
- Recording licensesthat must be obtained if you record a performance for other that single-use education purposes by teachers with students,
- Mechanical licensesif you make copies of recordings of a performance for sale regardless of if performing rights are already obtained.
- Synchronization licensesif you make any sort of videos with music performed directly or incidentally. This can also apply if for example a dance group creates a routine based on a piece of music. (This may also require “grand rights” specific to dramatic interpretation of music)
- Digital Performance licenses may apply if internet streaming is involved. (Note- new legislation was introduced early in 2018 that may cause a rewrite of all licensing related to streaming.)
Nonprofit, non-commercial performing groups need to be especially careful navigating this minefield of rules when considering using a band members arrangement, selling recordings of the group performing at a concert, or posting any video or program materials on the internet.
While it is true that there is public domain (produced prior to 1923) music not subject to royalties, there is a lot of grey area. Publishers have created licensing issues even on 200 year old music by placing them in “folios” that can carry decades of additional copyright fees. You must be very careful. See the link below:
Again, all of this has been the law since 1978; why care now?
Two Words: “the internet.” With the internet coming of age, the entire music industry went through a transformation. All the old record sales, radio and TV royalty models were relatively easy to track via performance contracts with the various industry licensing agencies such as ASCAP, BMI, and SESAC. Internet sharing and streaming created entirely new revenue streams for Music publishers and multiple agencies vying for fees depending on the affiliation of the artist, composer or publisher.
Most importantly, pursuing compliance from small community bands and schools has become practical because of the internet. In the pre-internet days, publishers would have had to hire an army of auditors to track down and check licenses in each school and community band. It was considered too much expense for the value and potentially bad publicity to publisher to pursue “the little guys”.
However, with the internet, the music publishing industry figured out that they now had a mechanism to identify and chase violations more easily. They realized anyone who published a community band concert program online or uploaded a video of their high school marching band on line, was giving them a free lead and basis for a compliance audit.
One consequence of this is the formation of a group called Treso’na. They are a group of lawyers paid by the music publishing industry (ALFRED, J.W.Pepper etc) to be copyright enforcers. The company actively chases down any lead including high school and college bands they feel are in violation of the law. They send threatening letters to school boards and organizations to force licensing with the publishers but then offer not to report the music departments to the Feds in exchange for purchasing a “Pre-Negotiated Infringement Release”. A portion of those collected fees are supposed to go back to ASCAP / BMI /SESAC artists and publishers. Treso’na also operates its own copyright clearance agency.
What is the solution?
The only long-term solution is to become educated on the law and for performing groups to secure proper licenses, either individually or in blanket licenses. The alternatives are very expensive in terms of fines and the real potential for criminal prosecutions depending on circumstances. This is serious.
National Association for Music Education has put together a lot of great background info. While it is primarily directed at music educators in public schools, most points are also equally applicable to community music organizations.
Below are several links to their training materials.
Appendix A section 110 outlines the limits of fair use and music education exemptions.
Treso’na has it’s own position paper on this issue (link below) and as you might imagine it takes a more aggressive stance on when licensing is required.
Another group of interest is the Association of Concert Bands (ACB) that addresses the performing license issue from an adult nonprofit, non-commercial band point of view. Once a Band joins their organization they are eligible to buy into the ACB blanket license agreement that covers both ASCAP and BMI Music catalogs.
On this page, ACB also has an excellent downloadable FAQ article on determining when licensing is required.
Hopefully this article has opened your eyes to an area of performing music that you may not have been aware of and the potential risks of ignoring copyright issues. Our hope is that from this information you will protect your performing group from financial and potential criminal penalties by seeking the appropriate licenses for the music you perform. Please also remember if you purchase any music from our site, we include nonprofit, non-commercial performing rights. This saves you both money and hassle from having to pay for a separate performing license.