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Legally performing borrowed music

What is the legality of a performance of borrowed music, if for use in a community chorus (501c).
 
Some of the people in my organization feel that because we are a community chorus, we cannot perform music that we legally borrow, because we are not an educational or church affiliated group. 
 
Specifically, I want to know if the college where I teach (which owns copies of Testament of Freedom) can loan those copies to the community chorus I direct (non-profit, ticketed, sponsors, etc, etc).  Is the community chorus performance legal. 
 
Adam
 
Replies (13): Threaded | Chronological
on December 5, 2011 5:55pm
There are two separate copyright issues here:
  • Privilege of making copies. Anyone who has legitimately acquired copies of music can legally lend them, either for free or for a rental fee. However, you can't make additional copies without permission.
  • Privilege of performance. This is actually totally unrelated to the first item. Copyright law requires you to get permission to perform a copyrighted work, whether directly from the composer or through an organization like ASCAP. Usually there is some charge for this (although not always), but it's the same issue regardless of how you got the printed music. Church and educational situations have some exceptions, but as you note they don't apply to a community choir.
There are other independent copyright permissions, such as permission to make recordings, videos, arrangements, etc. Each item in this "bundle of rights" is negotiated separately.
on December 5, 2011 6:26pm
Adam:  Of course it's legal, under one of three conditions:  (1) the music is in the public domain and not under copyright; (2) the music is under copyright and the community chorus qualifies for the Fair Use excemptions from performance royalties; or (3) the music is under copyright and the community chorus pays the performance royalties that are due, usually through ASCAP or BMI, depending on the affiliation of the publisher or composer.  (Your community chorus DOES obtain performance licenses for the performance of copyrighted music, doesn't it?!!)
 
So the people with concerns have the wrong concerns.  They should be concerned with whether you are obtaining the required licenses.
 
Being a 501c non-profit makes no difference.  Borrowing the music makes no difference (and is perfeclty legal if the copies were legally purchased in the first place).  Making photocopies of them would be illegal no matter how the originals were obtained.  I would suggest reading up on the basics of copyright law for educators.  The MPA probably has brochures available on line, and so does the U.S. Copyright Office.
 
All the best,
John
on December 9, 2011 3:15pm
Hello John,
 
From what you say, "(Your community chorus DOES obtain performance licenses for the performance of copyrighted music, doesn't it?!!)" a community choir that presents a program with, say, twenty four shortish pieces, is actually required to contact the publishers of all of these pieces and get permission to perform them. Am I interpreting this correctly? Is there a fee for this? How much (approximately)? To whom does the fee eventually go- the publisher, ASCAP/BMI, the composer, all of the aforementioned?
 
What is the penalty for not doing this, and have you (or anyone) heard of its being enforced? It sounds like a lot of paperwork to me! I am not sure if this is required (if I read it correctly) by Canadian copyright law, but I can say that I have NEVER been payed one cent for performances of my choral music in the USA, Canada or any other country for that matter (except when on recordings or broadcasts, or when performed by professional singers (in Canada) in a 'union' regulated venue). I have always assumed that when someone purchases music from me they have permission to perform it. Kind of like when I buy a book I am allowed to read it! Can you enlighten me on this?
 
John , if you have a specific URL for US copyright laws that deal specifically with (choral) music I would appreciate having it. It seems I have a lot to learn!
 
Thanks!
 
on December 9, 2011 7:12pm
Hi, Donald, and your questions are excellent.  I wish I could answer them better.  I assume that Canadian law is similar in some ways to U.S., but also that it is different in other ways.
 
U.S. law made it possible for copyright owners to collect royalties for "public performance for profit" in the 1909 revision.  But there was no provision in the law for actually collecting those royalties, nor were the royalties specified in the law.  That's why Victor Herbert, Irving Berlin, and many others got together to form ASCAP (the American Society of Composers, Authors & Publishers), a membership organization set up to collect and disburse performance royalties.
 
ASCAP negotiated an agreement with the growing broadcast industry, for royalty payments that didn't amount to much as time went on, and when that contract lapsed (either before or after WW II, but I forget exactly when) they asked for higher payments.  The broadcasters naturally disagreed, so ASCAP went on strike and overnight the broadcasters could no longer use Tin Pan Alley or Broadway hit songs on the air. 
 
There were two results, both far reaching.  In the short term the broadcasters had to skuffle for music to play, and started using country and western, ethnic music, jazz, and other music that they had ignored for decades.  And after settling the dispute, having been caught with their pants down, they formed their own Performing Rights Organization, BMI (Broadcast Music Inc.).  Both organizations still exist, and for a long time they were bitter rivals and a songwriter could not belong to both.  But both existed to collect and disburse performance royalties.  And I'm pretty sure that there is a comparable organization in Canada, but I can't remember its name and I don't know whether it functions similarly.
 
The game changed in the 1976 revision of the law, because the publishers wanted very much to remove the two words "for profit" from the law, and they succeeded, leaving a very restrictive set of Fair Use Guidelines for educational and religious use. 
 
So to get around to your questions, no, it is not necessary to negotiate with every copyright owner (usually publishers) for performance rights, although you can try.  But it would be a huge undertaking.  Instead, both ASCAP and BMI issue licenses that cover performance royalties, so in order for YOU to collect what's due you for U.S. performances you would have to join one of the PROs OR belong to a Canadian one that has reciprocal agreements with the U.S. ones.  The licenses can be for single performances or can be blanket yearly licenses, and a lot of performance venues have the latter because it is much cheaper.  And each organization bases its licensing fees on some combination of the number of seats available and the highest admission price.  About 12 years ago my Sweet Adelines chorus bought ASCAP and BMI licenses for a single performance and it cost us about US $50 for both in a 230-seat venue.
 
To answer another question, these licenses are blanket in that they allow you to perform any music in the ASCAP or BMI database, so you are not licensing specific works or a specific number of works.  You are SUPPOSED to report what you actually do perform (and broadcasters are supposed to log and report what they play), so the royalties can be fairly divided up, but no, it is NOT a one-to-one payment for actual performances.  They both use a formula, and they both tend to use statistical data rather than hard data, so it's easy to slip through the cracks.  But under U.S. law each of the six different rights bundled together as "copyright" is administered differently, so no, buying the music does not automatically entitle you to perform it publicly.
 
I THINK that the theory is that composer and publisher split the royalty payments equally.  So of course a lot of popular songwriters set themselves up as publishers so they can collect twice as much, even though their "publishing" company may be no more than a letterhead and some business cards! 
 
The penalty for not paying performance royalties due is, I assume, the possibility of a civil (not criminal) lawsuit, and most of us aren't worth suing! 
 
Performance by either professionals or amateurs makes no difference, except for the specific exceptions for educational and religious use under Fair Use.  Nor does whether admission is charged (since the revision went into effect in 1978).  The copyright law itself is readily available on the website of the Copyright Office of the Library of Congress, which also has quite a few good brochures available, many of them aimed directly at music educators.
 
Basically everything is set up so that it's easy for professional musicians to fulfill their copyright obligations as a simple matter of doing business, but it can be confusing for amateurs who don't have the legal background or business experience to keep up with.  And of course since it's a law it's constantly changing:  the Congress Giveth and the Congress Taketh Away!
 
All the best,
John
on December 9, 2011 11:01pm
ChoralNet has an entire category of resources dedicated to copyright, not only in the U.S. but also Canada and a few other countries. There are no American laws specifically aimed at choral music, although music in general is obviously a big part of copyright law.
 
SOCAN is the Canadian equivalent of ASCAP; they'll be happy to explain to you (en anglais où en français) that performance licensing is comparable in Canada to the USA (their website has many videos). You're missing out if you are not collecting performance royalties.
on December 11, 2011 5:12am
Donald, you've just reinforced a concern of mine about collecting agencies.
In Australia, the relevant body is APRA, and in theory they collect performance licence fees for the benefit of the copyright holders. Yet whenever I've obtained a licence from them, there is nothing in the paperwork that asks us to nominate whose pieces we are performing. I have always appended such a list anyway, but have wondered whether any of the composers or publishers in question have ever seen a cent of the money that we pay. It seems you, for one, did not (my choir has performed some of your work, namely J'entends le Moulin, and Savoury Sage Rosemary and Thyme - and APRA was informed, and paid, in each case).
So if it seems that we can't trust the collecting agencies to do their job properly, what should we do? Individually contact every composer and/or publisher whose work is represented on our programs?
 
Simon Loveless
Victoria, Australia
on December 6, 2011 12:44pm
The only thing you must do is pay your ASCAP and BMI fees.  You may borrow to your heart's content.  However you may not record without license (Harry Fox) or make copies of the music.
 
on December 7, 2011 6:11am
Usually it's the performance venue that is paying ASCAP/BMI performance fees.  You may want to find out if that is the case in your situation.  No need to pay twice.
 
from ASCAP's website....
------------------------------------------
Some people mistakenly assume that musicians and entertainers must obtain licenses to perform copyrighted music or that businesses where music is performed can shift their responsibility to musicians or entertainers. The law says all who participate in, or are responsible for, performances of music are legally responsible. Since it is the business owner who obtains the ultimate benefit from the performance, it is the business owner who obtains the license. Music license fees are one of the many costs of doing business.
on December 7, 2011 10:17am
John is quite correct.  But you cannot assume that a given venue does have the necessary licenses, and I would guess that most churches and probably most schools do not.  But those licenses are indeed a legitimate cost of doing business, and if you are renting the venue the rental you pay is covering part of that cost.  Definitely worth asking about.
 
John
on December 7, 2011 7:54am
>>I want to know if the college where I teach
>>can loan those copies to the community chorus I direct. 
 
Yes, your college can.
 
 
>>Is the community chorus performance legal.
 
It is legal if you pays the performance fee to PRO such as ASCAP/BMI which represents the work or to whoever representing the work.
on December 7, 2011 10:45pm
Thanks everyone. Obviously we know not to make photocopies.

The college has enough scores that the community chorus can borrow enough for all the singers. The community chorus does submit reports each year to ASCAP and BMI, and pays for the performance rights for all our concerts. The exec director handle this, so I don't have other details.

So, just to be clear...as long as we pay the performance rights to ASCAP/BMI the borrowed scores are not an issue...correct?

on December 8, 2011 9:02am
Correct.
on December 8, 2011 9:48am
Yes, correct.  But to take the detail just a bit further:
 
The music you have purchased (the actual paper it's on) is your property.  You can treat it just like any other property and loan it, rent it out, display it in public, wrap up your leftover fish in it, or hide it away in a file drawer.
 
The intellectual content (represented by what is PRINTED on that paper) is NOT your property.  It remains the property of the copyright owner, and therefore subject to all of the OTHER aspects of copyright law, including payment of royalties for performance, recording, broadcasting, and securing permission for any arrangements or other "derivative works."
 
I suspect that this distinction is what bothered a few of your choir members.  Where the distinction becomes more complicated is when a unique copy of something belongs to (i.e. is the property of) a library or an individual collector, who may not have a copyright in the musical content (which may very well be in the public domain), but who can control access to the physical embodiment (the paper or parchment or whatever).  In that case the musical content, which IS in the public domain and should be available to all of us, is not unless we are granted access to it by the owner of the paper.
 
"Is a puzzlement"!
John
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