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performance rights fees for collegiate choral ensemble on tour

Hi all,
 
Quick question (I hope): the church where I serve as Director of Music will be hosting a concert by a touring collegiate choral ensemble in March. The church maintains a blanket license to cover performance rights fees for all of the music performed within its facilities - but this license does not include ticketed events. The concert which the collegiate choir will be presenting will be a ticketed event. A representative from the choir states that they have never had to pay performance rights fees before so they believe that they are exempt from them. I know that performances that occur at educational institutions are generally exempt under fair use, but are performances by collegiate choirs on tour in non-educational venues also exempt from paying performance rights fees? Or is it possible that the college/university holds its own blanket license that covers these types of activities?
 
Thanks in advance for any information!
 
-Ted Hine
 
on November 15, 2012 12:02pm
Ted:  Like most copyright questions, this one probably isn't as simple as it looks or as it should be!  Here are what seem to be the variables.
 
Under Fair Use no performance rights fees are required for concerts put on by recognized educational institutions in the normal course of instruction.  There is NO mention of its having to be in any particular location.  And the college may indeed have a blanket license, but it would be intended more to cover visiting musical artists since school performances ARE exempt.
 
HOWEVER, Fair Use also specifies that if admission is charged, or if anyone profits from the performance, the Fair Use exemption does not apply UNLESS the income is used exclusively for educational or charitable purposes.  And this is what makes a simple question complicated.
 
So the questions here are:  WHO is charging admission, the choir or your church?  WHO gets the money that is generated?  And HOW is that money destined to be used?  If it is to defray travel expenses I would think that's an "educational" use.  If it's to your church it may well come under charitable use.  (And I have a personal question about why your existing license does not cover performances that are not in the conduct of a service or religious convocation, since those uses are exampt under Fair Use in the first place, so exactly what DOES it cover?!!!  But I assume that you are absolutely sure that that is the case.)
 
The bottom line, as I understand it, is that the producer or promoter of any musical event is responsible for paying performance rights fees, NOT the performers themselves and NOT the location (unless one or the other is the producer).  So that's yet another factor.  And just to complicate things further, way back in World War II, when the federal government instituted an Entertainment Tax, my father was one of the public school music directors who switched from selling fixed-price tickets to calling them "voluntary donations" or some such thing, and that did get them around the Entertainment Tax.  (Previously, under the 1909 Copyright Law revision, schools and churches didn't have to pay performance fees because theirs were not "public performance for profit," but that wording was struck from the 1976 revision of the law.)
 
It's just a shame that we have to worry about such things.  The college choir is providing a public service to its audiences, an educational experience to its students, and great public relations to its school.  Your church is providing a further public service by hosting them and providing beautiful music to your congregation and community.  It's too bad that we can't just go ahead and DO it!!  But you're right to question the implications.
All the best,
John
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