Steering Clear of Copyright cops

Subject: Steering Clear of Copyright cops
From: freightdawg
Date: 04 Aug 03 - 11:00 AM

Sorry to start a new discussion on an old topic, but after hours of chasing threads I haven't seen the answers to some basic questions. Many thanks to the contributors who have answered many others though, especially the links to www.songfile.com and www.pdinfo.com. My questions take in the following scenario: On Monday night Frisky
Fred plays some old and new folk songs at his home BBQ party. His selections include really old stuff and some songs right off the recent charts. A friend likes his music and asks him to perform at her neaby Bistro for a combination plate on the house, $100 and all the tips his guitar case can hold. On Tuesday night ol' Fredo does his little gig and a patron offers to record Fred on a cd. Wednesday night Fred once again plays and sings and the producer of the cd really likes his stuff. Thursay night the producer gets stood up by a rock band for a major concert, but luckily good old Fred lives nearby and so after a couple of phone calls Fred plays to a sold out house, and because the concertgoers have never really heard good music, they go absolutely ape and a star is born.

The questions then are these: On Monday Fred made no money, and so, I assume, has defrauded no copyright holder. Is he in the clear? On Tuesday, Wednesday and Thursday Fred did play for money and for ever increasing amounts and in larger public venues. Also, on Wednesday his effort was recorded. When did Fred run afoul of copyright laws? Was it his error, or those who recorded/produced him? On Tuesday morning, would it have been better for Fred to have hired an agent, or a lawyer specializing in contemporary music law? Or is there a place where Fred could have sent a check to cover all copyright issues and to placate all the copyright holders of the music he simply wanted to share with those who maybe have not heard it before.

I love the information and the discussion that is shared on this site. Thanks a million for helping poor of Fredo out of his jam.

Subject: RE: Steering Clear of Copyright cops
From: GUEST,MMario
Date: 04 Aug 03 - 11:17 AM

I am not a copyright lawyer etc etc disclaimer etc...

at the home barbecue he is performing in private - no problems...

at the bistro he is performing in public and technically the VENUE needs to pay performance rights on any copyright music performed.

The patron who records is in technical violation of copyright laws - but if only the single copy is made then a good case cood be made for "time-shift" and fair usage. if multiple copies made then a mechanical license fee is owed.

playing for the canceled rock group - again - the VENUE is responsible for performance fees.

note: it is NOT whether or not money is being accepted. For performance fees it is the difference betwseen "public" and "private" and the definitions can get pretty petty. As far as recording - as I understand it in the US - if a piece has been published and mechanical copyright fees have been paid then they can not prevent you from recording. (not - this does NOT mean you can record someone ELSE performing without their permission)

Subject: RE: Steering Clear of Copyright cops
From: Uncle_DaveO
Date: 04 Aug 03 - 11:19 AM

As I understand it, Fred is in the clear all the way around*. It's the venue and/or publisher who needs to pay copyright fees, not the artist.

Incidentally, whether he makes any money at any of these gigs is irrelevant to the legality of things. Of course the copyright servicing agencies are unlikely as a practical matter to prosecute the very small frogs in very small puddles.

Dave Oesterreich

*Assuming he's not publishing his own CD.

Subject: RE: Steering Clear of Copyright cops
From: Frankham
Date: 04 Aug 03 - 02:38 PM

"The questions then are these: On Monday Fred made no money, and so, I assume, has defrauded no copyright holder. Is he in the clear?"

Yes.


" On Tuesday, Wednesday and Thursday Fred did play for money and for ever increasing amounts and in larger public venues. "

Technically he would be construed as being in violation of copyright unless he did this under the auspices of "education" and then he might be exempt under "fair use". The money then might be an honorarium and not a fee. The larger the venues, the more technically he would be in violation. I say technically because many performers appear in concerts all over the country and do not pay publishers or licensing organizations. They can't police everything.
Club owners are particularly vulnerable to a visit from a BMI or ASCAP representative. The problem of who owns the music is now a big issue due to KaaZa and Napster.

My position is that the big licensing organizations are asking for too much. When ASCAP sues the Boy Scouts of America for using songs at their campfires, it gets a little over the top.


"Also, on Wednesday his effort was recorded. When did Fred run afoul of copyright laws? Was it his error, or those who recorded/produced him? On Tuesday morning, would it have been better for Fred to have hired an agent, or a lawyer specializing in contemporary music law?"

If the recording was sold and no royalties were paid the non-pd tunes, then he would be in big trouble if found out. He would probably be sued. Any respectable (if I can rightly use that word) agent or manager would know about such matters and have a procedure to follow. If Fred becomes a star, a music lawyer is de rigeur.

"Or is there a place where Fred could have sent a check to cover all copyright issues and to placate all the copyright holders of the music he simply wanted to share with those who maybe have not heard it before."

Not usually. He would have to negotiate with each publisher for each song unless it has been recorded before in which case it would be under the juridiction of a "compulsory license" but he would still have to pay the publisher just the same. This can be done through the Harry Fox Agency which handles most publisher's accounts. It's on-line.

It's pretty cut and dried.

Frank Hamilton

Subject: RE: Steering Clear of Copyright cops
From: GUEST,.gargoyle
Date: 04 Aug 03 - 11:56 PM

Pferd's error, he's an Essel -

He has lost his job, his retirment account, his home, his savings, the remaining lease on his automobile, all of the children's university education and the klein-geld in their piggy-banks.

There is a lesson in your story....If you are an amature - don't have delusions of grandure! Pay the lawyers and agents their due!

Sincerely,
Gargoyle

Subject: RE: Steering Clear of Copyright cops
From: freightdawg
Date: 06 Aug 03 - 05:37 PM

Seems everyone (or almost) agrees that the venue is resposible for paying the copyright fees. I'm not quite sure how Fred could be off the hook since he is the one doing the picking and croonin'. How is a restaurant owner responsible for every guitar picker's selections?

I do not want Fred to get out of paying his honest dues. He is a good boy scout and wants to properly reward the various muses who have inspired him. Besides, if someday he should write a hum-dinger of a song he would like to have his fellow folk singers acknowledge his creativity. "Do unto your fellow folk song writer/singer as you would have them do unto you" is the code our Fred lives by. However, having some intimate experience with more than one Federal agency has Fred just a little nervous about launching forth with no actual experience. Thanks to everyone who has contributed so far. Your opinions are greatly appreciated.

Subject: RE: Steering Clear of Copyright cops
From: GUEST,MMario
Date: 07 Aug 03 - 11:58 AM

because that is the way the fee schedules are setup - the VENUE pays fees - based on average audience, number of times a years, etc; etc.