Greater Boston Choral Consortium
Copyright for Choral Directors – A Resource Page
Last updated on
Prepared with the assistance of Professor Alfred C. Yen,
Boston College Law School
Click here for a printable copy of this document.
Welcome! Given the frequent and widespread uncertainty about the laws related to copyrights and permission to perform, record, and distribute choral works, the Greater Boston Choral Consortium (GBCC) presents this resource page to educate its member organizations and others specifically about copyright law related to the activities of choruses. Copyright is a complex and frustrating area of the law, even for experts. It is therefore impossible to tell you everything you need to know in order to make sure your chorus takes full advantage of its copyright rights and avoids violating the rights of others. However, it is possible to give you some background about how copyright works, answer some common questions, and provide you with links to further resources. We hope you will find it helpful!
Elizabeth Van Ranst (for the GBCC) and Alfred C. Yen
PLEASE NOTE BEFORE PROCEEDING: This resource page is an educational resource. It provides no legal advice, nor does it create an attorney-client relationship between you or your chorus and anyone associated with this website. Consultation with an attorney is the best way to understand your rights and responsibilities under copyright law.
Good Basic Resources:
Frequently Asked Questions that will be addressed below:
- What works does copyright protect, and when does a work fall into the public domain?
- What does having a copyright do for the copyright holder?
- Should the copyright be registered (and how/where), or can it just be indicated by using a “c” in a circle?
- How does a chorus get a license to use a copyrighted work?
- What are ASCAP, BMI, SESAC, and the Harry Fox Agency, and why are they important for choral groups?
- What are performance and mechanical licenses, and when is each required?
- What is fair use?
- I've bought a piece of music for my chorus. Can I photocopy it if we need extra copies?
- How about copying a selection from a piece of music so I need not hold the entire score?
- Can a chorus print the words being sung in a concert program?
- Can other choruses borrow our scores? What is the First Sale Doctrine?
- Why do we need to pay for performance/other rights when we've bought the scores for the music we are singing?
- What music doesn't require performance rights?
- How does being a non-profit or a profit making organization or professional/amateur operation affect requirements for licensing?
- How does the venue affect whether a license is required, e.g., Christmas caroling in a town center, singing at a funeral, at a private party?
1. What works does copyright protect, and when does a work fall into the public domain?
This is a very important question that is central to the rights and responsibilities of choruses, for public domain works may be used by anyone in any way at no cost. Accordingly, a chorus that wants to perform or record a work should attempt to determine whether the work is in the public domain. If so, the chorus can use the work as it pleases, without a license.
Almost without exception, copyright protects musical compositions unless the composition has fallen into the public domain. The most common way for a work to fall into the public domain is the passage of time. As a general rule, for works authored (i.e. created, but not necessarily published) on or after Jan. 1, 1978, copyright lasts for the life of the author plus 70 years. This means that any work created on or after Jan. 1, 1978 is almost certainly under copyright (although there are a few other ways for a work to lose copyright that need not be summarized here).
For works authored prior to Jan. 1, 1978, copyright lasts 95 years from publication. Accordingly, works published more than 95 years ago are in the public domain, subject to relatively obscure technicalities about the meaning of “publication.” Thus, a work written by Handel and published during his lifetime (as opposed to a recently discovered, unpublished manuscript) has fallen into the public domain.
|Generally if work authored:
||Copyright in effect:
|Before January 1, 1978
||For 95 years from publication
|On or after January 1, 1978
||For 70 years after the composer's death
If a work was published less than 95 years ago, but before Jan. 1, 1978, the work probably has remained under copyright, regardless of when the work was authored. However, there are two important ways in which copyright may have been lost. First, before Jan. 1, 1978, publication of a work without notice generally placed the work in the public domain. Second, failure to properly renew a work’s copyright had the same effect. Determination of whether either of these possibilities has occurred involves complicated points of law, in part because Congress has changed American copyright law to make forfeiture of copyright less likely. Therefore, if you intend to treat a work written before 1978 and published less than 95 years ago as a public domain work, it is important to consult an attorney first.
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2. What does having a copyright do for the copyright holder?
This question is also very important because copyright gives copyright holders certain specific rights. Those who want to use a copyrighted work in a fashion covered by one of those rights must obtain a license before doing so or find an exception (such as fair use) permitting the intended use. However, uses not covered by these rights are free.
Section 106 of the Copyright Code grants the copyright holder six exclusive rights. Many affect the legal rights and responsibilities of choruses:
- to reproduce the copyrighted work in copies or phonorecords
- to prepare derivative works based upon the copyrighted work (i.e. add new lyrics to a song, create new arrangements, translations, etc.)
- to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending
- in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly
- in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly
- in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission. Note that digital audio transmission applies to things like “radio broadcasts” over the Internet, but not traditional “over the air” broadcasting.
Example: Suppose a chorus wants to perform a copyrighted work in a local concert hall. The chorus also intends to record the performance to make CDs that it will sell, and the chorus will also place the recording on its website for others to hear.
Each of these uses requires a license from the copyright holder. The performance involves the right of public performance. The recording and sale of CDs involves the rights to reproduce and distribute copies and phonorecords. The Internet posting involves either (depending on the specifics of how the Internet is used) the rights to reproduce and distribute copies of the work or the right to perform the work publicly by digital audio transmission.
Some of the mechanics of obtaining the necessary licenses are discussed below. However, the important message for choruses is that their typical use of copyrighted works (e.g. public performance–including playing or transmitting the work from a website, recording, and sale of recordings) generally requires licensing.
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3. Should the copyright be registered (and how/where), or can it just be indicated by using a “c” in a circle?
It is important to distinguish between registration and notice, which have different functions. Registration refers to filing a formal record of copyright ownership with the U.S. Copyright Office (an administrative agency under the Library of Congress). By contrast, notice refers to the placing of a prescribed mark or phrase (generally the “©” symbol, along with the date and copyright holder’s name) on copies of a work to advise others of the copyright holder’s claim of ownership in the work.
Registration is important because it is a prerequisite to filing a lawsuit to enforce a copyright. (It is not a prerequisite to gaining copyright protection, however.) The copyright statute allows registration at any time, so copyright owners who have not registered may still do so immediately prior to filing a suit. However, a delay in registration means that the copyright holder loses the ability to recover attorney fees and certain types of damages if she sues for infringement committed before registration.
Notice was formerly important because publishing a work without notice placed the work in the public domain. This is no longer the law. You cannot rely on the absence of notice to conclude that copyright does not protect a work. The primary value of notice today is to identify the owner of copyright in a particular work.
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4. How does a chorus get a license to use a copyrighted work?
In theory, a chorus need only contact the owner of the copyright (not necessarily the composer, as composers frequently sell their rights to music publishers) and get permission. Typically, a copyright holder will ask for a payment in return for permission.
If you are unsure who the holder of a copyright is, you can search the Register’s records. Please note, however, that failure to find the work or its owner in the Register’s records does not necessarily mean that a work is in the public domain. As noted earlier, registration does not affect the existence of copyright protection. However, a copyright holder must register before bringing suit, and failure to register affects the range of remedies a copyright holder can recover. Thus, copyright may protect a work even though the owner has not registered the work.
The process of obtaining a license for every work a chorus wants to perform could take a lot of time. Fortunately, there are private organizations such as ASCAP, BMI, and SESAC that sell so-called “blanket licenses” on behalf of many composers. The activities of these organizations are discussed below.
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5. What are ASCAP, BMI, SESAC, and the Harry Fox Agency, and why are they important for choral groups?
ASCAP, BMI, SESAC, and Harry Fox are licensing organizations that represent the interests of copyright holders in musical works. ASCAP, BMI, and SESAC perform different functions from Harry Fox.
ASCAP (the American Society of Composers, Authors and Publishers), BMI (Broadcast Music, Inc.), and SESAC (Society of European Stage Authors and Composers) operate on a collective basis to negotiate and collect fees for the public performance of musical works. Remember that copyright holders have the exclusive right to control public performance of a copyrighted musical work. As a general rule, the copyright code defines a public performance as one taking place at a place open to the public or a place where more than a family and its normal circle of social acquaintances is gathered (some exceptions are discussed below). Transmissions (e.g. broadcasts) of a work to a public place also qualify as public performances. Accordingly, whenever music is heard in a public place, a license for the performance is generally required.
For those who regularly perform many copyrighted works (e.g. radio stations, orchestras, and choruses) or those who operate locations where music is regularly performed (e.g. concert halls, bars, etc.), the process of obtaining a license from each individual copyright holder would be very cumbersome. ASCAP, BMI, and SESAC streamline this process by selling so-called “blanket licenses” that cover large libraries of works. Accordingly, a radio station, performing group, or concert hall can buy an ASCAP license and know that it now has a license for any public performance within the ASCAP library. Similar arrangements can be made with BMI and SESAC.
Harry Fox differs from ASCAP, BMI, and SESAC in two ways. First, it does not sell licenses for public performances of works. Instead, it sells licenses for the mechanical reproduction of works (e.g. the making of CDs), use of musical works in conjunction with films, plays, and TV commercials (so-called “synchronization license”), and digital transmission. Second, it sells licenses for individual works, as opposed to the libraries of works that ASCAP, BMI, and SESAC license.
ASCAP, BMI, SESAC, and Harry Fox matter to choral groups when their activities implicate the rights that these organizations license. Thus, a chorus giving a public performance needs a license for the works it will perform (unless they are in the public domain). A license from ASCAP, BMI or SESAC would likely cover these performances (a chorus should check to make sure that a work being performed is in fact included in any blanket license). Similarly, if a chorus wanted to make and sell a recording or video of one of its performances, Harry Fox would sell the type of license required for many works. In many cases, licenses may be obtained from these institutions by visiting their respective websites, which are listed below.
Example. To show how a chorus might need to contact one or more of these organizations, let us return again to the example of a chorus that plans to give a public performance of a copyrighted work in a local concert hall, record that concert to make and sell CDs, and make the recording available to listeners on the chorus’s website. With respect to the public performance, the necessary license can probably be obtained from ASCAP, BMI, or SESAC. If the license cannot be obtained from these organizations, or if the chorus finds the price too high, the chorus must locate the copyright holder and obtain a license directly from him or her. Because ASCAP, BMI, and SESAC sell licenses to libraries of works, it is possible that a license covering a single work will cost less if obtained from the copyright holder. Also, as noted above, in many cases, the concert venue may already have a license that covers the performance, and, if so, the chorus need not obtain an additional license. With respect to the recording, manufacture and sale of CDs, the necessary license can be obtained from the Harry Fox Agency. Finally, with respect to the Internet usage of the recording, a license must be obtained from either ASCAP/BMI/SESAC or the Harry Fox Agency. In most cases, a chorus would likely start by contacting the Harry Fox Agency because Harry Fox sells licenses concerning individual works, and the license would be needed for only a single work (click here for a link the Harry Fox page concerning digital uses). It is also possible that a chorus would prefer to get a blanket license from ASCAP/BMI/SESAC if it uses so many works on its website that getting individual licenses would be cumbersome or too costly. Regardless of which path a chorus chooses, consultation with an attorney concerning digital uses is recommended because there are technicalities about the precise terms of licenses and the precise form of digital use that affect whether any particular license from a particular agency grants the necessary rights.
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6. What are performance and mechanical licenses, and when is each required?
Licenses are required whenever you want to use a copyrighted work in a way that the Copyright Code reserves to copyright holder. Remember, for example, that copyright holders have an exclusive right to publicly perform a copyrighted work. Accordingly, a performance license is necessary when a chorus wants to give a public performance of a copyrighted work, unless an exception applies. The most important of these exceptions for choruses, section 110(4) of the Copyright Code (which excepts certain nonprofit performances from licensing), is discussed below under “What music doesn't require performance rights?” Similarly, the copyright code gives the copyright holder exclusive rights to reproduce his music, including by way of recording. Thus, the making of a recording generally requires a license. Recording licenses are sometimes referred to as “mechanical licenses” because they involve the mechanical reproduction of music.
If your chorus wants to make a recording (i.e. CD or tape, but not a DVD) of a copyrighted work, it may be able to take advantage of the compulsory licensing provision found in section 115 of the Copyright Code. In a nutshell, copyright holders who have authorized at least one public distribution of a recording of a work cannot refuse to grant licenses to others who want to make and distribute recordings of the same work. The Copyright Code, through an administrative process, sets a prescribed rate for this license. Licenses for recording purposes at similar (or sometimes better) rates can also be obtained from the Harry Fox Agency.
The law surrounding requirements for licensing for recordings is complicated. If your chorus is thinking about making a recording of a copyrighted work, it is wise to contact an attorney.
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7. What is fair use?
Fair use is a defense that, if established, identifies as non-infringing certain acts that otherwise violate one of the exclusive rights granted to copyright holders. Well-known examples of fair use include the limited quotation of copyrighted material in a scholarly article or book review, the temporary recording of television programs for later viewing, and the creation of parodies.
The fair use defense is codified in section 107 of the Copyright Code. Determinations of whether a particular use is fair include consideration of the purpose of the use (including whether the use is commercial or non-profit), the nature of the copyrighted work, the amount and substantiality of the portion used, and the effect of the use on the market for the copyrighted work. Unfortunately, courts have not set down broad guidelines that easily separate fair from unfair uses. Accordingly, fair use determinations depend heavily on the context of a particular use. Some examples will be discussed below.
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8. I've bought a piece of music for my chorus. Can I photocopy it if we need extra copies?
The answer depends a lot on the exact context of and purpose for the copying. As an initial matter photocopying falls within the copyright holder’s exclusive right of reproduction. Therefore, making the copies constitutes infringement unless excused by the fair use doctrine. The pertinent part of the Copyright Code reads as follows:
the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—
- the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
- the nature of the copyrighted work;
- the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
- the effect of the use upon the potential market for or value of the copyrighted work.
Thus, if you have deliberately purchased only 10 copies of a work when you know your chorus needs 40 in order to save the cost of the additional copies, it’s not likely that fair use would apply. By contrast, if you did purchase the 40 copies, but a chorus member has lost his copy of the music 1 hour before a performance, fair use probably would apply.
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9. How about copying a selection from a piece of music so I need not hold the entire score?
Assuming this means that you have a legitimate copy of a large work, and your chorus is performing only a portion, this would probably be fair use.
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10. Can a chorus print the words being sung in a concert program?
This is a difficult question to answer. On the one hand, the practice is quite common. If a chorus already has a license to perform the work, it is hard to see how printing the words would affect the market for the copyrighted work. On the other hand, music publishers have long taken the position that they have the right to control printing of the lyrics to songs, and they have successfully maintained actions against defendants printing lyrics in other contexts. It is not possible at this time to say with certainty whether courts would consider the printing of lyrics in concert programs different, as no reported cases on this point exist.
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11. Can other choruses borrow our scores? What is the First Sale Doctrine?
Other choruses can borrow your scores, assuming that you have legitimately purchased them, under the first sale doctrine. The first sale doctrine, codified at section 109 of the Copyright Code, provides that the owner of a legitimate copy of a copyrighted work can sell, rent, or otherwise dispose of that copy without permission of the copyright holder.
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12. Why do we need to pay for performance/other rights when we've bought the scores for the music we are singing?
Remember that section 106 of the Copyright Code gives copyright holders six exclusive rights, including rights to reproduce and sell copies of a copyrighted work and rights to publicly perform a copyrighted work. The physical reproduction and distribution of printed scores involve the exclusive rights to reproduce the copyrighted work and sell those copies to the public. Your purchase of a particular copy therefore carries with it no rights concerning public performance of the work.
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13. What music doesn't require performance rights?
All music under copyright requires a license for public performance. Non-public performances and performances of public domain works require no license. As a general rule, the Copyright Code defines a public performance as one taking place at a place open to the public or a place where more than a family and its normal circle of social acquaintances is gathered.
Note, however, that in some cases a chorus may not need to obtain an otherwise necessary license because someone else has already done so. For example, many concert venues purchase ASCAP/BMI/SESAC licenses to cover all of their performers. Also, in some limited cases outlined in section 110 of the Copyright Code, specific exceptions may give permission for public performances without licenses. Two of the exceptions most relevant to choruses involve sections 110(3) and 110(4) of the Copyright Code.
Section 110(3) declares that performances of musical works “in the course of services at a place of religious worship or other religious assembly” are not infringement. Hence, a chorus performing in this particular context would not need to obtain a license.
Section 110(4) is a bit more complicated. As a general rule, it exempts nonprofit performances in which no fee or other compensation is paid to the performers, promoters, or organizers, as long as there is no admission charge or the proceeds are used exclusively for educational, religious, or charitable purposes. Note that, according to the legislative history of section 110(4), the payment of a regular salary to a group’s conductor does not count as a payment to a performer that undermines the applicability of this exception. There are other technical requirements to section 110(4) that require careful study or consultation with an attorney before the exemption becomes effective.
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14. How does being a non-profit or a profit making organization or professional/amateur operation affect requirements for licensing?
Unfortunately, being a non-profit affects this very little, except on those occasions where section 110(4) of the Copyright Code applies as explained above. Although profit motives affect possible fair use analyses, for the majority of ordinary public performances, non-profits must obtain licenses just like for profit ventures.
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15. How does the venue affect whether a license is required, e.g., Christmas caroling in a town center, singing at a funeral, at a private party?
Venue affects the need for a performance license because the Copyright Code defines public performance (i.e. performance for which a license is required) by the kind of location where the performance occurs. As a general rule, a performance is public if a copyrighted work is performed in a “place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances are gathered.” Thus, a performance at a private party would probably be considered non-public performance, and a license would not be required, if the place of performance were one where only “a family and its social acquaintances is gathered.” However, if the private party were a business function where persons outside a family’s social acquaintances are gathered, a license would be required.
Remember, this general rule may be affected by exceptions found in various places throughout the Copyright Code. Thus, Christmas caroling in a town center would potentially fit under the section 110(4) exception for nonprofit performances where no fees are paid to performers and there is no admission charge. Similarly, a performance at a funeral would possibly be a performance in the course of services at a place of religious worship under section 110(3).
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