The ABCs of Performing Rights Licensing
Every performer and presenter of twentieth-century music needs to be aware of the basics of performing rights licensing, and licensing fees need to be included as part of a basic budget for all concerts requiring licensing. But where to begin? How to know if a license is needed? Or if the sponsor or concert hall or university or other organization has a license? Or if the music being performed is in copyright? Or who licenses it? Why pay if the composer is no longer living? Didn't the publisher's rental fee cover any licensing costs? There are few easy and quick answers to these questions, and the subject is admittedly complex. In attempting to lead the reader through this maze of details, I hope to provide guidelines for understanding and dealing with performing rights in the future. While I write from my particular vantage point -- that of BMI -- much of this information applies equally well to music licensed through ASCAP, and some of it to America's third performing rights society, the much smaller SESAC.
The performing right is only one of many rights held by the copyright owner; others, which are not licensed by performing rights societies but by the individual copyright holder, include mechanical, synchronization, and grand rights. The right to premiere, arrange, print, publish, excerpt, parody, or anthologize likewise rests with the copyright holder. Each of these rights is separate and distinct; the composer, or his or her agent (or publisher, if the music is published), should be contacted for each separate usage of a copyrighted work. Under current U.S. copyright law (as well as that of other countries in the Berne Convention), a work is copyrighted as soon as it is set down in tangible (or audible) form. Unpublished as well as published music is in copyright, and the music need not include a copyright notice (although it is always preferable to include one!). When a composer signs a contract for publication with an American publisher, usually the copyright is assigned to that publisher, who will then handle the business of the other rights enumerated above.
The United States has three performing rights societies, or licensing organizations: ASCAP (founded in 1914), SESAC (1931), and BMI (1940). Most other countries have a single society, and international reciprocity allows for coverage of any American society member's works throughout much of the world.
A performing rights organization collects licensing fees for public performance of its repertory, either on a "blanket" basis (providing the user unlimited access to the organization's entire repertory for a set annual fee) or "per-program" (also called "per-concert" or "per- performance") basis (covering only specific performances of particular pieces on certain dates). In the "concert music" field, it may license orchestras, choruses, bands, chamber music societies, touring ensembles, new music consortia, composers' organizations, libraries, museums, and art galleries that sponsor concerts, as well as a host of other presenters. As a general rule, in America it is the presenter (or sponsor, producer, promoter, etc.), not the concert hall (facility or venue), that is responsible for a license. Legally speaking, performers, presenters, and facilities can all be held liable for performing rights fees; for each concert, they must decide among them who will assume this obligation.
Performing rights licenses cover radio airplay, broadcast and cable television carriage, and live or recorded performances by other "general" (non-broadcast) users of music; the fees collected (minus a small amount for overhead) are distributed among the creators and copyright holders who license their works through the society. Performing rights societies, which are specifically mentioned in the U.S. copyright law, enable music users to obtain rights for public performances without having to track down each individual copyright holder. The purchase or rental of music from a publisher does not include the right to public performance; nor does commissioning a work or receiving a manuscript copy of it from a composer entitle one to perform it without obtaining the proper license.
A performing rights license is required when a performance is presented ,$at a place open to the public and at any place where a substantial number of persons outside of a normal circle of family and its social acquaintance is gathered." The law applies equally to commercial establishments and nonprofit organizations. Where any money changes hands, licensing is usually required: if admission (including "free will offerings" or donations) is charged, if the performers are paid (even if only reimbursed for expenses), or if the presenters receive income (in the form of grants, contributions, public funding, etc.).
In the copyright law, there are clearly defined exemptions from performing rights fees for face-to-face teaching activities and religious services. The American performing rights societies do not license elementary or high school performances within the school program. But youth orchestras, music educators' conferences, and all-state ensembles are often licensed. And while religious services do not require licensing, when concerts are presented by churches and temples, or their facilities are rented to outside presenters, licenses need to be obtained.
A further exemption concerns certain non-profit public performances if no performing, presenting, or producing personnel were paid (not even a token travel reimbursement); and if the performance was without any purpose of direct or indirect commercial advantage; and also if either (1) there was no direct or indirect admission charge or (2) the proceeds received, after deducting reasonable costs of producing the performance, were used exclusively for education, religious, or charitable purposes. In this rare situation a licensing organization usually requires the presenter to sign and have notarized an "Affidavit of Exemption
from Performance Fees."
COLLEGES AND UNIVERSITIES
Performances at colleges, universities, and degree-granting conservatories, presented under their aegis, are generally covered by college blanket licenses. Almost all American institutions of higher education hold licenses with ASCAP, BMI, and SESAC; those few that do not are licensed on a per-performance basis when applicable. Since some concert music performances occur on college campuses but are not presentations of or by those institutions, care should be taken to see that the issue of licensing is addressed before the performance.
For an outside organization to be covered by a college license it must usually maintain a substantial connection to the named institution and be an entity over which the named institution has control or authority. There is not necessarily a close enough connection if the presenter merely rents the space, is allowed to use it without charge, or receives other in-kind services from an institution. If An orchestra or chamber music ensemble, for instance, rents space for performance at a college concert hall but is not sponsored or presented by the college, it would be responsible for its own license.
CONVENTIONS AND MEETINGS
Both BMI and ASCAP recently began offering a new type of license, a Music Performance Agreement for Meetings, Conventions, Trade Shows and Expositions; SESAC is also working out such a license. (Prior to Fall 1990, live performances of concert music at such events could be licensed on a per-performance basis or covered under existing licenses of various types.) This new type of license provides protection from copyright infringement to or ganizations of all sizes-whether commercial, not-for-profit, or educational-holding conventions, seminars, conferences, and other gatherings within the U.S.A. Events covered include concerts, social events, workshops and demonstrations, recorded examples used in lectures or panel presentations, and music in exhibit halls. Licensing is underway with such organizations as the national and state music education associations, American Symphony Or chestra League, American Guild of Organists, American Choral Directors Association, Chamber Music America, and others. 'Me College Music Society holds licenses for its annual national meetings.
It is rarely feasible for a performing rights society to supply lists of all compositions it licenses; these number in the millions and change daily, with the addition of new members, changes of publishers, reassignment of rights, and so forth. In addition, because of the reciprocal agreements with foreign societies, the repertory is seemingly endless.
All societies should be able to provide selected information on their composers, repertories, and licensing options, and we expect inquiries on specific titles (whether a society licenses it, who is the publisher, or where the publisher is located). Licensing organizations have important roles as educators by participating in seminars, meetings, festivals, and other events where composers, presenters, and performers are gathered.
As previously mentioned, purchase or rental of music does not entitle one to the right of public performance. if you are renting music, ask if it is in copyright (it usually is, if not for sale), and which society licenses it. Whether a composer is living or deceased has little bearing on copyright status. Virtually all music from America and other countries, if created or published within the last seventy-five years, is in copyright in the U.S.A. and would require licensing through one of the three societies, BMI, ASCAP, or SESAC.