Electronic Media FAQ
Here are answers to some “frequently asked questions.” League member orchestras with questions for Mr. Bronson and Mr. Kluger, that are not answered here, should contact both of them by e-mail:
Q: The music publisher has asked for an additional music rental fee because we are broadcasting the copyrighted work on radio and streaming it on the Internet. Does copyright law require us to pay this fee?
A: This is a business issue, not a copyright issue. There is no part of the copyright law that requires you to pay an additional fee to the publisher when the printed music you rent is used for more than one purpose. There IS a copyright in the broadcast on terrestrial radio of the actual music, but the copyright holder (composer or publisher) already receives a pro rata share of the blanket license fee paid by the radio station to ASCAP or BMI. Even though there is no copyright law that requires you to pay the extra music rental fee, the publisher does own the printed music, so there is nothing to prevent them from asking you to pay a fee. So, your options are to negotiate a mutually acceptable arrangement (with or without additional financial consideration) or to perform a different work. If you have questions, you should consider consulting with a copyright attorney.
Q: Should we use the American Federation of Musicians (AFM) Live Recording Agreement (LRA) or the AFM Audio Internet Agreement (AIA) to determine how to structure an agreement with our musicians for an audio downloading project?
A: If you want to offer physical product, such as CDs, in addition to downloads, the Live Recording Agreement applies. If you are interested in offering your music only on the Internet (streaming and/or downloading), the Audio Internet Agreement applies. Please note that the LRA and AlA agreements cover only the services of musicians. You will need to have agreements with other participating performers (conductor, soloists and chorus). If your chorus is an AGMA signatory, you will need to reach agreement with them either for the specific project or to expand the provisions of your CBA to provide for ongoing activity. If your chorus is not an AGMA signatory you will need to have signed agreements and/or releases with the chorus. In addition you will need to have agreements with the conductor and the composer or publisher of any copyrighted works.
Q: Can we put a three minute video clip of our orchestra on YouTube?
A: Yes, but not without getting permission from all the rights holders, including the participating performers and production team (conductor, soloists, chorus, musicians, stagehands), as well as the composer or publisher of any copyrighted works. (See article on YouTube by Proskauer attorney Bill Hart.) This also assumes that you are a signatory to the AFM Audio-Visual Agreement) or that your CBA with your AFM local allows you to use up to three minutes of audio/video material for promotional purposes.
Q: Can we put three minute audio clips of the music we will be performing on our Website, to promote ticket sales?
A: Yes, but not without getting permission from all the rights holders of the recorded music. If the source material is a recording of your symphony orchestra, you'll have to ask the participating performers (conductor, soloist, musicians), as well as the composer or publisher of any copyrighted works, yourself. If you want to use a commercial recording, you'll have to get permission from the record company, which may or may not grant you permission on behalf of the rights holders.
Q: Does the use of a short audio or audio-visual clip on our Website or in some other electronic medium for promotional purposes meet the definition of “Fair Use” under Copyright Law (for which we do not need to seek permission from the copyright holder)?
A: you have to seek permission from all rights holders for the electronic use of an audio or audio-visual clip, even if the clip comes from a commercial recording you have purchased, even if it is short. Some symphony orchestras may be under the impression that using short excerpts meets the defined exemption in copyright law of Fair Use. We are not attorneys, but our reading of the Fair Use section of U.S. copyright law (http://www.copyright.gov/fls/fl102.html) is that the use of clips in an advertisement does not constitute Fair Use. Our reasoning is that the use is a commercial one, to promote the sale of tickets to performances. The fact that the entity selling the tickets is a non-profit organization does not mean the use is a non-commercial use. (We think it MIGHT be consistent with Fair Use, if the purpose of the clips were educational or an activity that did not generate any revenue at all.) Unfortunately, the language in the law is not clear, so it is up to symphony orchestras to decide whether their use of copyrighted material requires them to ask permission from rights holders, or take a risk by just using the clips and hoping the copyright holders do not complain. This is obviously a risky legal strategy we cannot recommend. In our opinion, symphony orchestras should not use the recorded content of others without seeking permission, even if they are legally allowed to do so. The golden rule says you should not do to others what you would not want done to you. If symphony orchestras presume the consent of others, how can they demand to be consulted about the use of their own content? It may be more cumbersome to ask permission, but it’s the right thing to do.
Q: Does the national Audio-Visual Agreement with the AFM allow us to show our gala opening concert for free on video screens outside our concert hall?
A: The Audio-Visual Agreement does not apply to activities that take place solely within the geographical boundaries of the AFM Local with which your orchestra has a collective bargaining agreement (CBA). If such closed-circuit broadcasts are not covered by your CBA, you will have to get permission from the musicians and/or local union personnel (as well as others involved, including conductor, soloists, and stagehands). You will also need to obtain permission from the music publisher or composer if you are presenting a copyrighted work.