Re: Response to inquiry about legal recordings for performers

On Wed, 15 Oct 2003 5:28pm, info[_at_]joybutler.com wrote:
> First, if the choir performed in public, it should have had a public
> performance license to cover the performance of the songs - unless the
> songs are in the public domain (i.e., the copyright in the songs has
> expired). If the venue was a concert hall or similar establishment
> where music is frequently performed, it's likely that the concert hall
> has the public performance licenses (which it obtained from one of the
> performing rights organizations - ASCAP, BMI and SESAC) necessary for
> the songs performed by your choir.

Most choirs sing in their churches in the context of a worship service for which an admission has not been charged. Most choirs purchase sheet music (one copy per musician) from a music store or publisher. While some of the works are public domain, the editions available for sale are typically not. Some music editor has arranged the parts or altered the accompanyment and copyrighted that edition. It is generally diffiult to determine what parts of an old piece are "original" and what parts are claimed copyright. Nevertheless, many editions are prepared, marketed and sold with the intent that choirs would purchase them and use them in services. I am not aware of any caselaw which suggests that this use is anything other than a Fair Use.

Choirs do not, as a rule, pay for performance licenses if they sing as I've described above. We might get into philosophical arguments over whether this is infringing or fair use. But suffice it to say that any publisher stupid enough to take on a church is in for a mess of bad publicity. If you think that the outcry over the Girl Scout songbook was loud, try to take on American churches over worship services.

Tape recordings are another issue. It's possible that a fair use case could be made if they were given to the choir members themselves for the purpose of studying the music and performance, but if they are to be sold, licenses should be aquired and considered a part of the cost of duplication.

I once sang in a choir which did annual fund raising concerts. They aquired performancce licenses. If they intended to make and sell tape recordings, they aquired mechanical licenses as well. As we were preparing for a concert tapes of a piece that the same choir had performed some years earlier were distributed. They were marked with the name of the piece "for study proposes only. Do not duplicate." Abd, in fact, that is how we used them. The educational purpose and non-profit nature of the use was important to establish an argument for Fair Use.

Roy Murphy \ CSpice: A Mailing List for Clergy Spouses murphy@panix.com \ http://www.panix.com/~murphy/CSpice.html Received on Thu Oct 16 2003 - 23:00:06 GMT