Live Music Covers and Permissions

Submission Date:

Wednesday, July 31, 2019

Question:

First question…

Our library will be hosting a live music event in the local auditorium this summer. The musicians are all local (one is a library employee). The performers are all volunteering their time and there will be no admission fee to attend the event. Do we need special licensing if the musicians perform covers of published songs? Is licensing needed for a performance if it is all original music? If covers are done would making an announcement that no recordings are to be made safeguard against copyright infringement?

Second question…

When a library schedules a live musical performance what should they be concerned about in terms of public performance? Does the library need to have any coverage in place if the musical group is playing covers of song by other artists? Is it the musical groups responsibility to obtain that permission? In this instance a local television news crew would like to cover parts of an event with musical performances. The concern is that some of the artists will be playing music that they may or may not have the rights to. What should the library consider in this situation? Even if the news crew was not covering the event, is there some type of infringement the library should be concerned about? 

Answer:

It's a musical double act at “Ask the Lawyer” today!

Libraries are hitting their stride as community centers and curators of cultural experience, so it is no surprise that live musical performances are being offered as part of their programming and outreach.

These two members’ questions arrived within one week of each other. 

The first question is like a good pop song: a straightforward premise, with an array of practical (but catchy) sub-questions. 

The second is more like the best jazz performance: concerned with the “notes that aren’t there,” and basically asking: “what could go wrong?”[1]

To address both submissions, Ask the Lawyer presents: “Ask the Lawyer Library Live Musical Performance Matrix,” and some additional guidance, below.

Copyright And Performance Factors	All songs composed by performers	Some songs composed by others (some “covers”)	All covers	Karaoke
Admission charged for profit	Chartered libraries in NY, and their supporters, should not be charging for access to events for a profit.	Chartered libraries in NY, and their supporters, should not be charging for access to events for a profit.	Chartered libraries in NY, and their supporters, should not be charging for access to events for a profit.	Chartered libraries in NY, and their supporters, should not be charging for access to events for a profit.
Performers are paid   (whether or not admission is free)	The contract between the performer and the library, Friends or other benefactor group should specify that all songs are owned by the performers, and ideally gives maximum rights to record the performance and use the footage to raise funds for the library.	The contract between the performer and the library, Friends or other benefactor group should specify that if the performance of songs owned by a third party is recorded, proper licensing was obtained by the performer or venue, and the performer indemnifies the library for any claim of infringement.	The contract between the performer and the library, Friends or other benefactor group should specify that if the performance of songs owned by a third party is recorded, proper licensing was obtained by the performer or venue, and the performer indemnifies the library for any claim of infringement.	The contract between the karaoke machine provider and the library, Friends or other benefactor group should specify any restrictions based on the license held by the provider.
No compensation to performers   AND   Admission is free	This group wrote their owns songs, and they are willing to perform for free?  They must love the library!  Just make sure your library also has a contract confirming 100% ownership of songs and addressing other priorities (see “contract” comments below chart).	Okay if performance of covers is not “transmitted”[2].   Just make sure your library also has a contract  addressing other priorities (see “contract” comments below chart).	Okay if performance of covers not “transmitted” to the public.   Just make sure your library also has a contract addressing other priorities (see comments below chart).	The contract between the karaoke machine provider and the library, Friends or other benefactor group should specify any restrictions based on the license help by the provider.
No compensation to performers;   admission proceeds are used to benefit library	They wrote their owns songs and all the proceeds are going to the library?    Super-cool performers.	Okay, so long as the performance of the covers is not transmitted to the public, AND no objection is received from copyright owner (unless they got and can show proof of a license).	Okay, so long as entire performance is not transmitted to the public, AND no objection is received from copyright owner (unless they got and can show proof of a license).	The contract between the karaoke machine provider and the library, Friends or other benefactor group should specify any restrictions based on the license help by the provider.
Wait!  Did we mention it’s an entire musical!?!	Your library knows a group that wrote their own musical?  That’s awesome.  Proceed…just make sure the contract has their guarantee that the work is original, spells out how the library can use the footage for fund-raising, and addresses the contract priorities listed below.	No performance without a license to the entire musical.	No performance without a license to the entire musical.	A karaoke musical?  So cool.  But definitely the contract with the karaoke machine provider needs to show an adequate license, even if it is not transmitted or recorded.
What if the news shows up?	Excellent. More exposure for a band with talent and originality, and for your library.	Excellent…more exposure for the group and the library.  Even if the crew snags some brief footage of a cover song, a reporter’s recording for purposes of a genuine news story is not a “transmission” of the type forbidden by 110(4).  But make sure your 110(4) criteria are well-documented.	Excellent…more exposure for the group, and the library.  Even if the crew snags some brief footage of a cover song, a reporter’s recording for purposes of a genuine news story is not a “transmission” of the type forbidden by 110(4).  But make sure your 110(4) criteria are well-documented.	My worst nightmare would be the news covering me doing karaoke.  But again, if the right licensing is in order, a reporter’s recording for purposes of a genuine news story is not a “transmission” of the type forbidden by 110(4).

There are a few things I am sure you’ll notice in this chart:

First, I keep mentioning having a “contract.”  No performance should be given in a library (or at a venue with sponsorship by the library) without a contract that confirms the date, performance fee (even if free), intellectual property considerations, public relations/promotion/image release, contingencies for cancellation, and clauses that address liability for any injuries or legal claims based on the performance. 

This need for a performance contract applies to any library arranging for a speaker, musical act, magician, artists or other third party (non-employee) to bring programming to your library.  For acts that bring risk (of alleged infringement, personal injury, etc.), the contract should require the contracting party to provide a certificate of insurance, and to indemnify the library for any damage caused by the performer.  

The contract does not have to be extensive, but it should cover the fundamentals listed above.  It can require that the performer obtain all necessary permissions, or can provide that performance licensing be covered by the venue (with a license from ASCAP or BMI).  A good general practice lawyer who handles performance and liability issues should be able to develop a template for your library (although even a good template will need to be adjusted from time-to-time).

Second, you’ll see an array of factors in the chart above, like “performer not paid,” or “it’s a musical!?!”  These factors are drawn from 17. U.S.C. 110 (4) (a part of the copyright law), which allows certain charitable uses of non-dramatic literary or musical works without a license.

Here is the complete text of 110(4):

[The following is not an infringement of copyright]

(4) performance of a nondramatic literary or musical work otherwise than in a transmission to the public, without any purpose of direct or indirect commercial advantage and without payment of any fee or other compensation for the performance to any of its performers, promoters, or organizers, if—

(A) there is no direct or indirect admission charge; or

(B)the proceeds, after deducting the reasonable costs of producing the performance, are used exclusively for educational, religious, or charitable purposes and not for private financial gain, except where the copyright owner has served notice of objection to the performance under the following conditions:

(i) the notice shall be in writing and signed by the copyright owner or such owner’s duly authorized agent; and

(ii)the notice shall be served on the person responsible for the performance at least seven days before the date of the performance, and shall state the reasons for the objection; and

(iii)the notice shall comply, in form, content, and manner of service, with requirements that the Register of Copyrights shall prescribe by regulation;

This section of the Copyright Act was crafted with just the members’ type of event in mind.  As usual with Copyright law (which giveth and taketh away, when it comes to fair use and other infringement exceptions) careful reading and careful attention to details is important before relying on an exception.  But if you document meeting all the factors, 110(4) is a great boon to libraries (and other charitable organizations and efforts).[3]

So as you see, with some careful attention to details, a show can go on.  Or as these slightly modified lyrics (fair use!) from the great Shannon (circa 1983![4]) summarize:

Let the music play.

But what’s the venue say?

If there’s a license you

Can play other people’s tunes.

 

Let the covers play

If your library doesn’t pay,

and don’t transmit your groove

Then the tunes are free to use.[5]

 

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Copyright, Legal Poems, Music, Online Programming, Policy, Templates