Greater Boston Choral Consortium 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:
Additional Resources:
Frequently Asked Questions that will be addressed below:
1. What works does copyright protect, and when does a work fall into the public domain? 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 Thus, a work written by Handel and published during his lifetime (as opposed to a recently discovered, unpublished manuscript) has fallen into the public domain.
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. 2. What does having a copyright do for the copyright holder? Section 106 of the Copyright Code grants the copyright holder six exclusive rights. Many affect the legal rights and responsibilities of choruses:
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. 3. Should the copyright be registered (and how/where), or can it just be indicated by using a “c” in a circle? 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. See also:
4. How does a chorus get a license to use a copyrighted work? 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. 5. What are ASCAP, BMI, SESAC, and the Harry Fox Agency, and why are they important for choral groups? 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. See also:
6. What are performance and mechanical licenses, and when is each required? 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. 7. What is fair use? 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. 8. I've bought a piece of music for my chorus. Can I photocopy it if we need extra copies?
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. 9. How about copying a selection from a piece of music so I need not hold the entire score? 10. Can a chorus print the words being sung in a concert program? 11. Can other choruses borrow our scores? What is the First Sale Doctrine? 12. Why do we need to pay for performance/other rights when we've bought the scores for the music we are singing? 13. What music doesn't require performance rights? 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. 14. How does being a non-profit or a profit making organization or professional/amateur operation affect requirements for licensing? 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? 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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