Re: Performers' Right in Sound Recordings

>Could someone pls. let me know whether the U.S. now has a performers'
>right in sound recordings, and if so, pls. briefly describe it.
>
>Thanks.
>
>Lesley Harris
><harris[_at_]nicco.sscnet.ucla.edu>

As far as I know there is no such thing as a "performers' right" for sound recordings in the US. There are, however, both "performance rights" and the rights of performers (i.e., musicians/writers) in sound recordings. If you'd like to be more specific maybe we can nail it down, but in the meantime here's my best shot:

In the US "Performance Rights" is an imprecise term often used to mean the right to grant a license for others to perform a musical work in public. This can be thru public broadcast of a recording such as on radio or TV or in a public place, in which case a license can usually be obtained from ASCAP or BMI, who are in business precisely to grant such licenses. Alternatively, a "performance" might mean your band doing their own version of someone else's song (a "cover" version). As I understand it, the right to do this is automatic under the compulsory licensing provisions of the US copyright code if you are willing to pay the mandated fee for each copy of the record produced (or that fee can usually be negotiated thru the Harry Fox Agency in NYC which collectively represents most major music publishers for this purpose).

I am unclear who licenses the right for your band to "cover" someone else's song in public when you don't go and make a recording of it (probably ASCAP/BMI still, I think. Anyone else know?) I'm also unclear on to whom the monies from the compulsory mechanical licenses go; do they just go to the writers or to the artists and/or label, too?

If your question is oriented toward rights in a single recording of a particular song, the performers on that recorded version of it have rights in it (which are usually automatically transferred to the record company to whom they are under contract). The song's writer also has rights which are generally treated as unalienable (for some reason I have not yet figured out) although they may share the income from the licensing of that right with the publishing company that helps them exploit its potential.

What is still very much up in the air (poorly chosen metaphor:) is the question of which rights are being invoked when a song is posted on the Net. Is this a performance of the song? or a reproduction and transfer of ownership (i.e., a quasi "sale")? A performance would mean that ASCAP/BMI would collect monies, while a reproduction/sale theory means that the record company should receive royalties from a sale (disintermediating the local record store, as well).

There will be a lot of money at stake over these issues and I am wondering what others think/know about these issues (especially if I've misconstrued or omitted aspects of US Copyright law). Do any of the lawyers out there have specific suggestions or cites on where to look to research these questions?

Hope this helps.

scott fedewa
<fedewacs[_at_]leland.stanford.edu> Received on Thu Dec 15 1994 - 06:38:32 GMT