Everything you need to know about music rights
By Joshua Bartlett
OK, so you own a dance studio. For your classes you use recordings or have a pianist playing various musical scores. Some of those songwriters or composers might include, say, Stevie Wonder, Leonard Bernstein, Duke Ellington, John Lennon, Beyoncé, Neil Diamond, or Gloria Estefan. And artists like these have written some of the millions of song titles and compositions from the last century, including such diverse genres as Broadway show tunes, R&B, rap, rock, hip-hop, classical, Latin, New Age, country, gospel, Christian, and pop. And during the school year, chances are you have recitals and performances that utilize these musical selections.
Do you have to pay royalties to anyone? How do you find out? Or do you just hide your head under the covers and hope that no one will notice?
First of all, let’s clarify the definition of music performance rights. Performance rights allow music to be legally performed in public. These rights are part of U.S. copyright law and demand payment to the music’s composer/lyricist and publisher.
Music performing rights organizations
There are three major music performing rights organizations in the United States: BMI (Broadcast Music, Inc.), ASCAP (American Society of Composers, Authors, and Publishers) and SESAC, Inc. (originally the Society of European Stage Authors and Composers, but now the acronym is solely used.) These organizations act as agents for the songwriters, composers, and music publishers, so that anyone who wants to use their copyrighted titles doesn’t have to negotiate with every artist, which would be a major headache. As a studio owner, a license gives you permission to use the titles covered by the performing rights organizations in your classes and performances.
What are you paying for?
“Under current copyright law, the only performing right that exists is that of the songwriter or the composer and music publisher,” says Jerry Bailey, senior director of media relations and business communications at BMI. “For dance classes, that is the only performing right.”
Why is that important? Because—apart from the videotaping and distribution of performance tapes (we’ll discuss that a little later)—a dance studio owner is not responsible for paying anything to the recording artists or recording companies—only to the creators of the title. “If you are dancing, say, to a Frank Sinatra performance and the song is written by a BMI songwriter, you don’t have to worry about the record company or the Frank Sinatra estate,” says Bailey. But you do have to pay a fee to BMI.
Keep in mind that we are speaking strictly about the United States in terms of copyright law. Outside our borders, each country has its own laws regarding performing rights, synchronization rights, and master use rights. (The latter two terms will be explained below.)
Bailey claims that BMI represents more than 6.5 million titles, while Vincent Candilora, ASCAP’s senior vice president of licensing, says his organization represents more than 8.5 million titles. SESAC represents a much smaller percentage of the music played in the United States, but the number is still, at minimum, in the hundreds of thousands, SESAC’s Bill Lee says.
“We see ourselves as the bridge between those who create music and those who use it. The money we collect is not going to record companies—it’s going to the creators.” —Jerry Bailey of BMI
So unless your studio’s classes are accompanied only by Chopin waltzes or improvisational drummers, the odds that you are utilizing some of these titles are extremely high. So what do you do about it?
These organizations offer annually renewable dance studio contracts that cover all the titles in their repertory. ASCAP, for example, determines the fee based on the types of classes offered and the number of students enrolled each week. For example, if your school is primarily ballroom oriented and you have 300 students per week, the annual fee is $490.98. If the studio offers a combination of classes—jazz, ballet, tap, modern, aerobic, and gymnastics—then the fee for the same number of students is $368. If you offer solely ballet lessons, the annual charge is $245.
BMI’s tiered contract structure is slightly different. It doesn’t matter which types of classes are offered—only the number of students. For fewer than 60 students per week, the annual fee is $144; for 250 to 374 students, it’s $566. But if you use recorded background music, say, in the reception area or in the dressing rooms, you pay more to BMI. For example, if your school is located on one level and enrolls 250 to 374 students and uses background music (other than the radio), then the fee jumps up to $910.
SESAC’s facility license is straightforward: $94 for a full-service license agreement that authorizes any number of instructors, students, or types of classes. SESAC also offers an individual instructor license, so that a freelance teacher who works in a recreation center one day, a YMCA on another day, or a dance school on still another day doesn’t have to worry about licensing coverage. (Generally, though, a venue that hires a teacher is responsible for any performance rights fees.)
Likewise, freelance choreographers are commissioned for their choreography and the venues—schools, dance companies, or shows—that commission the works are responsible for paying any performance fees.
A number of teaching organizations like Dance Masters of America and Dance Educators of America have recently negotiated reduced fees for their members with all three performing rights organizations, so it behooves you to find out if you qualify.
For example, DMA’s agreement allows member studios with around 300 students weekly to pay an annual fee of $345 to BMI, $138.11 (combined classes) to ASCAP, and $56.08 to SESAC. The savings is significant. For details on DEA’s discount arrangement, contact the organization at 800.229.3868.
And what about recitals and other school performances? “The venue in which the public performance is occurring is responsible for the license,” says Candilora, speaking for ASCAP. Most performing venues, just as they need property and liability insurance coverage, own blanket licenses that cover all types of music.
As a studio owner, you technically need a competition/show license from BMI if you rent a performance space from an unlicensed venue—or even if you have an in-studio recital and already have the dance class license. The BMI competition/show license costs $209.10 for up to 15,000 in annual attendance. SESAC’s studio license covers a studio and its students no matter where they perform—in a recital, a parade, or a nursing home.
Public domain music
One of the biggest misconceptions about performing rights is that all classical music is in the public domain. (Public domain pertains to what is often legally called “intellectual property”—a range of abstract materials. If that property is in the public domain, it is not owned or controlled by anyone.) It is true that, for example, Tchaikovsky’s Swan Lake is in the public domain. But, says Bailey, “the common assumption about classical composers is that they are all dead. Many classical compositions have been written in the last century.” (Think of all the minimalist composers like Steve Reich or Philip Glass, just to name one genre of classical music).
According to current copyright law, enacted by Congress in 1999, works created after January 1, 1978, are owned by the composer’s estate for the life of the composer plus 70 years. Older works are copyrighted for 95 years from the copyright date. But, as an example, if someone prepares a new guitar arrangement of a Mozart score, that piece could very well be copyrighted and, therefore, not placed in the public domain.
According to Bailey, 98 percent of the colleges and universities in the United States have blanket licenses that cover any group that teaches or performs in some way under the auspices of the institution. Performing rights organizations do not pursue licenses for grammar or secondary schools.
“There are exemptions for educational organizations that are nonprofit,” says Candilora. “Composers want students at the secondary and grammar school level to appreciate music. They hate it when budgets get cut, and the arts go first.”
Benefit concerts, such as a performance in which all the proceeds go to victims of Hurricane Katrina or to fighting breast cancer, are exempt from copyright law, as long as none of the organizers, promoters, or performers is getting paid.
So let’s tackle the thorny, complicated issue of videotaping a recital, class, or performance. Two terms need clarification: synchronization rights and master use rights.
Synchronization rights (often referred to as “synch rights”) refer to the right to synchronize a composition in timed relation with visual images on the film or tape. Master use rights pertain to obtaining permission to use previously recorded materials, a “master recording,” such as a particular orchestra’s recorded version of a symphony.
“If someone from Ms. Mary’s Studio is using a recording from a CD, and that is what is being blended in on the video, you need permission from the record company—that’s the master use rights,” says Bill Lee, senior vice president of licensing at SESAC. “If the video has a live performance, with Ms. Mary playing the piano, there are no master use rights. But in either scenario, you need to get synchronization rights, and those you get from a publisher.” And it doesn’t matter if you are simply videotaping a show for rehearsal purposes or selling DVDs from the show for a profit.
The problem is that not all publishers are easily contacted. “It’s a challenge to get the proper authorization [for synchronization rights]. It seems like most people in that scenario fly under the radar,” says Lee candidly.
With the rampant use of music in all types of commercial videos, dance schools are hardly the main concern of publishers and recording companies. But the law is the law, however cumbersome or difficult to enforce. Unfortunately, none of the performing rights organizations deals directly with synchronization or master use rights.
But back to the more pertinent issue of performance rights: Unless you are cherry-picking all the recordings you use in your studio (the published titles are available from the performing rights organizations’ websites), it makes sense to sign up with all three of them to make sure all your bases are covered. But what happens if you don’t do that? Do you get fined? Go to jail?
Performing rights organizations don’t fine anyone. It’s up to the federal courts to decide on infringement of copyright laws. “We don’t just drop in out of the sky and take you to court,” says Bailey. “We first try to educate [people] about copyright law, and if it appears that no progress is being made, BMI might file an infringement suit. But more than 95 percent of the cases don’t go to trial and are settled. It’s always cheaper to license than to go to court.”
“Keep in mind who our board is,” says Candilora, speaking for the 24 songwriters and music publishers on the board at ASCAP. “It’s our very last resort to file a copyright infringement. When we explain the copyright laws to 90 percent of the people who use our music, they comply. We’re not going to take some woman who is 60 years old with a dance studio [who is] trying to put her kids through school and wind up filing a suit against her because she is not paying her fees.”
Why should you pay?
Given the state of the economy and the struggle that many dance schools are encountering just to cover their overhead costs, why should they pay songwriters and publishers? “We are not trying to make a living off of dance studios,” says Candilora. “People have a hard time separating recording artists from composers.”
Performing rights organizations were originally created for the sake of and—in most cases—by artists. “We see ourselves as the bridge between those who create music and those who use it. The money we collect is not going to record companies—it’s going to the creators,” says Bailey. (Generally, overhead fees for performing rights organizations run around 11 or 12 percent, so the rest of the money goes directly to the artists and publishers.)
How do you sign up? The best way is to contact the organizations by phone to determine the type of contract that works best for your situation. In any case, information is a good thing.
For More Information
ASCAP: 800.505.4052; ascap.com
BMI: 888.689.5264; bmi.com
SESAC: 615.320.0055; sesac.com