Untangling the Licensing Web and Other Copyright Questions
You know you need some kind of permission for using other people’s music in your classes. So what do you do next?
By Andrew Sparkler and Susan Poliniak
Copyright law is a daunting subject for most lawyers, so it’s no surprise that many music educators feel uneasy dealing with it as well. But in truth, obtaining permissions for using copyrighted works can be a very simple and straightforward process. This article walks you through the steps of obtaining permissions for a fictional piece of music titled “A Really Nice Song,” and supposes that you are going to use it in the following ways: arranging the song for your choral group (including distributing a licensed copy of the song’s sheet music), performing it at your school, and uploading a video recording of the performance to be viewed on the Internet.
A brief introduction to copyright law may be useful. (For more on this topic, visit MENC’s Copyright Center, and see “Copyright Law: What Music Teachers Need to Know,” Teaching Music, April 2008.) A copyright on a piece of music conveys a bundle of exclusive rights to the copyright owners, including the right to perform the work publicly, to reproduce the work, and to make derivative works. These rights can be divided among or represented by different entities. Thus it’s likely that you’ll need to obtain permissions from distinct people or companies depending on how you’re using the song.
Permission to Alter and Arrange
First, if you intend to change a song in any way (for instance, alter lyrics or melody) and/or rearrange it for your choral group, you will need permission from the song’s copyright owner. Often, the individual who wrote the song and the copyright owner are not the same person. It is common practice for the song’s author to assign the copyright in the song he or she wrote to a company in exchange for the company’s exploiting the song on the author’s behalf.
If the song has been published in sheet music format, the name of the copyright holder will usually be at the bottom of the first page of music. Also, if the copyright is owned by an entity, the name of the company will often (but not always) include the words “Productions” or “Publishing.” Note that just because a company has the word “publishing” in its name, it does not necessarily mean that the company publishes physical sheet music. The term “publisher” is often synonymous with the term “copyright owner” in the music industry.
If you don’t have the sheet music for the song, you can usually find out the owner of a copyright by doing a search of the song title in either the ASCAP or BMI databases. ASCAP, BMI, and SESAC are the three performing rights organizations (PROs, for short) based in the United States, and their websites are excellent resources for locating copyright owners.
Let’s say that you’ve searched ASCAP’s database (which is called ACE) and determined that although the song was written by Bob Composer (we’ll call him Bob), an ASCAP member, the copyright to the song is actually owned by a company called Fictional Music Publishing (let’s call them Fictional). In order to alter the lyrics to and/or rearrange the work for your choir, you would need to contact Fictional to obtain permission for such an arrangement (note that, in the vast majority of cases, publishers will make their contact information available on their website). It’s possible that Fictional will contact Bob (and, if it is a different person, the lyricist as well) to clear the usage with him. There is also a chance that, while Fictional will handle the formal permission process, you will also be dealing with Bob and/or the lyricist directly, as many writers take an active interest in how their works are used.
Bear in mind that if you do not obtain permission to alter or arrange a work under copyright, you may upset the composer, the lyricist, and the publisher of a song. In such instances, not only are you usually asked not to arrange and perform the work, but you also risk exposing yourself to legal action.
One more point that may be surprising: All arrangements of a song still under copyright continue to implicate the rights of the copyright holder of the underlying work (i.e., the original song). In other words, you do not “own” your arrangement to someone else’s song—the copyright holder of the original song does. Thus, you cannot sell or otherwise distribute your arrangement of “A Really Nice Song” in any other way except that for which you have obtained permission.
You already know that you should purchase (or rent) one copy or part of a particular piece of music for each student in a choral or instrumental concert. Since we’re talking here about an arrangement that you have created of someone else’s work, it’s a good idea in your dealings with the publisher and/or composer/lyricist of the original work to tell them how many individuals will be performing your arrangement (and they will often ask). After you have performed the work, you can maintain copies of your arrangement in your library; however, you cannot distribute the work outside of your group or beyond the scope of what’s needed for the performance situation(s) for which you have obtained permission. If, say, another choral director is interested in performing your arrangement, it is perfectly acceptable to lend him or her a copy for evaluation purposes, but do make it clear that he or she will need to obtain his or her own permissions to use it. Also, if you wish to perform the work at a later date, you will need to call up the publisher and discuss this at the relevant time. In some instances, the publisher will allow you to perform the work with your group for an indefinite period of time—you’ll need to check on this first.
Often, publishers—as well as composers and lyricists—will want to see a copy of your finished arrangement, and perhaps keep it on file. This can be very beneficial to you, as that publisher may wish to formally publish the arrangement for others to use. At that stage, they will negotiate a fee to be paid to you, and you’ll probably be asked to sign a “work-for-hire agreement.” This means that you will be paid a lump sum for your arrangement, you will not receive royalties or future payments, and the publisher owns your arrangement (albeit the publisher technically “owns” it already). It is possible that the publisher may like your arrangement enough to contractually provide for royalties to be paid to you when it’s sold to and/or used by others—and that the publisher or composer may admire your work to such a degree that they will wish to hire you to arrange other works. These cases are rare, but they do happen.
In short, it’s a very good idea to be in contact with a piece’s publisher. Another reason why this can be a beneficial arrangement (so to speak) is that the composer and/or lyricist may send your group a note of encouragement, or they—or even a performer who is known for his or her performance or recording of the piece—may show up to your performance. Again, this is rare, but it does happen, particularly with lesser-known composers or artists, those with some tie to your school or geographic area, or those who may be visiting in your area for work or a performance of their own.
Permission to Perform the Song at School
When you contact Fictional to discuss your arrangement, they may ask—and you should certainly let them know—how and when the
work will be performed, as this may or may not alter the fee. Sometimes the fee may be lower (or free) when the publisher learns that the work is being performed by a school group. The situation varies from case to case, from song to song, and from publisher to publisher, but it never hurts to ask for a free or “gratis” license. For example, fees for a choir performance that would be posted to the Internet are typically far less than if you wanted to use the song in a nationwide advertising campaign for a soft drink.
After you negotiate a license with Fictional for the arrangement of “A Really Nice Song,” you may need additional permissions for your choir to publicly perform that work on school grounds or outside of the school, say, at a mall or county fair. Generally, the school or venue obtains a license for all performances, but you should make sure that your venue does indeed have a public performance license; these licenses are discussed in more detail in the next section.
Permission to Post a Performance on the Internet
If you wish to upload your choir’s performance of “A Really Nice Song” to the Internet, the two rights that are most likely to be involved are the reproduction right and the public performance right.
When uploading a video of the performance to the Internet, you will need a license to reproduce the song, because your uploading of the song necessitates making copies of it. (The right to reproduce a song when making a video is often called the “synchronization right.”) Once again, you should contact Fictional Music Publishing to obtain this license.
Public Performance Right
Posting a video of your choir singing “A Really Nice Song” onto the Internet so that the video is “streamed” to users (the most common form of online video transmission and the method used by sites like SchoolTube, YouTube, and Vimeo) is considered a public performance. As mentioned above, ASCAP, BMI, and SESAC are the three PROs that issue licenses for the public performance of most musical works in the United States. And while the song’s publisher is often the copyright owner of the song, PROs pay royalties to both the songwriter and the publisher. In our example, we know that Bob is an ASCAP member, and let’s say that Fictional is also an ASCAP member. This means that “A Really Nice Song,” which was written by Bob, is most probably in the ASCAP repertory.
So, if you wanted to post a video of your choir singing “A Really Nice Song” onto a website like SchoolTube, you would need to make sure that SchoolTube has an ASCAP license (it does). If you post the video on your personal website or your school’s website, those websites will need an ASCAP license, although it might be only for a minimum fee. In any case, before you post any music onto a website, you should contact the relevant PRO to make sure that the website in question is licensed.
Please remember that the opinions expressed in this article are those of the authors only and do not reflect the thoughts of other publishers and performing rights organizations. In general, you should not be afraid to contact a publisher or a performing rights organization if you have questions on this subject, as they are used to receiving many requests from small entities and are excellent resources in the area of music licensing.
Andrew Sparkler is Associate Director, Legal Corporate, of the American Society of Composers, Authors and Publishers (ASCAP). Susan Poliniak is Educational Director at Cherry Lane Music Publishing.
A Note on Public Domain Works
A song is considered in the public domain when it is not under copyright protection. Either the copyright has lapsed or expired (copyrights remain in effect for a specific period of time) or the work’s creator intends it to be freely distributed. To see whether a song is in the public domain, search the ASCAP and BMI databases or check the Public Domain Information Project.
The good news about public domain (“P.D.” for short) works is that you do not need any permission to use them. Furthermore, in our example, you may obtain copyright protection for your own arrangement of “A Really Nice Song” if the song is P.D. However, if you want to perform someone else’s arrangement of a P.D. work, make sure you properly research the status of that arrangement first, because it may be copyrighted.
If you are posting any video of your students, you should be sure that you have obtained the students’ permission and, if they are minors, permission from their parents. Finally, you should be aware that if you are replicating a well-known piece of choreography and/or replicating well-known costumes as part of your choir’s performance, it is possible that the choreography and the costumes are copyrighted. In this instance, you should try to identify the producer of a prior performance of the choreography and they will likely be able to put you in contact with the copyright owners.
–Andrew Sparkler and Susan Poliniak, August 2010, © MENC: The National Association for Music Education. This article originally appeared in the August 2010 issue of Teaching Music magazine.