On 4/28/97, David M. Ginsburg <davidg[_at_]metrolight.com> inquired about performing music at sporting events, such as figure skating and equestrian events. The full message is re-printed at the end of this e-mail. The following are specific responses to his questions.
Caveat: The following thoughts concern U.S. copyright law only. The following is not legal advice, but merely suggestions on how the problem might be analyzed under U.S. law. For specific legal advice, I suggest you contact a practicing attorney.
> - What rights have to be obtained by the rider for use of the music?
The proposed use implicates two potential copyrights for each recorded selection used: the copyright in the underlying musical work, and the copyright in the particular sound recording used. For the former, the proposed use implicates three of the five exclusive rights: the right of reproduction (if the music is re-recorded for use in performance), the right to create derivative works (by editing the works and combining them with other works) and the right of public performance. For sound recordings, only the reproduction and adaptation rights are implicated, since there is no general right of public performance in sound recordings.
So, assuming the musical work is not already in the public domain (which it might be for a number of reasons), there are potentially five different rights that might be infringed by a public performance of edited sound recordings in connection with a sporting event. To be safest, one should obtain permission from all of the right holders. The rights of reproduction and adaptation are generally (but not always) held by the publisher of the musical work, and by the record company for the sound recording; the right of public performance is almost always held by ASCAP or BMI.
There is an exemption in Section 110(4) for performance of a nondramatic 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 the performers, promoters or organizers, if there is no direct or indirect admission charge, or if the proceeds, after deducting reasonable costs of production, 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). Questions to be answered include: is the performance of a work through speakers to members of the public who attend a "transmission to the public"? Is anyone involved in producing the events paid a fee? What happens to the proceeds? This standard MIGHT be met for certain local shows, but almost certainly would not be met for larger competitions (such as the Olympics) and professional competitions, like figure skating.
I think the easiest thing to do would be to have the organizers of the event get blanket licenses from ASCAP and BMI. That would cover the rights of public performance in most musical compositions that might be chosen by the performers. Playing a commercial recording of the entire musical work(s) purchased by the performer would then be permitted, and I assume (but am not certain) that such a license would also permit public performance of excerpts of the musical work(s).
If a public performance license is obtained for excerpts, then making a reproduction of a portion of the commercial recording for purposes of playing it at the competition might be considered a fair use, so long as the performer had actually purchased an authorized copy, and was making a reproduction solely for the convenience of having all of the selections on one tape, and did not sell or otherwise dispose of that tape to anyone else. As for the adaptation right, it is hard to imagine the copyright holder complaining under the circumstances, but as long as the ASCAP and BMI licenses permitted excerpts to be performed, again the editing might then be considered a fair use to facilitate the performance of such excerpts.
[Outside the U.S., one might also have to worry about the moral rights of the composer or performer, who might object to such editing, in addition to the rights of the copyright holder. WIthin the U.S., the right of publicity of the performer(s) or a false attribution / Lanham Act claim might be implicated. I express no opinion on these possibilities.]
> - Is there any difference in the rights required for a neighborhood
> show vs. the rights for an FEI and/or Olympic event (is there a legal
> threshhold beyond which rights must be obtained? or is it just a
> practical threshhold where no-one knows about local shows, so the
> likelihood of being penalized for an infringing local use is low,
> while the likelihood of being "caught" in an upper level show is
> greater?)
The latter, unless the local show is small enough and non-profit enough that it would qualify for the Section 110(4) exemption. But of course, the commercial nature of the event would be considered in any fair use analysis.
> - If rights must be obtained, how do you clear them? Contact the
> publisher of the record label each piece of music was recorded on?
> The performer's agent? Or is there a clearinghouse which can do
> this in one stop? BMI? ASCAP?)
As explained above, BMI and ASCAP would be the place to start for public performances of musical works. If you are reluctant to rely on fair use after that, the reproduction and adaptation rights would have to be cleared with the copyright holders -- the publishers and the record labels. The agent of the performer would need to be contacted only to clear any right of publicity claim by the performer under state law -- a commercial use of his or her name or likeness (or in this case, voice) without the performer's permission. I've never heard of any performer complaining about this type of circumstance, but there's always a first time. An interesting question is whether the right of publicity claim would be preempted by federal copyright law, since there is no right of public performance in sound recordings. Any opinions out there?
> - Is there any potential liability on the part of the **organizer**
> of the event, if s/he allows a rider to perform to music without
> adequate clearances?
Absolutely. Contributory infringement is an established doctrine. In this case, if the organizer induces, enables, or profits from an infringement, he or she would be liable. That's why I suggest that the best way of starting is to have the organizer obtain the ASCAP/BMI licenses; it's a centralized way of clearing all of the musical works used by the various participants. It is impractical to ask or expect each separate rider to get ASCAP/BMI licenses.
> - What if the event were recorded on videotape (as Premier Horse
> Network did record the Olympics) for broadcast and for sale on
> videotape?
More potential liability, violating the reproduction and distribution rights. Sale on videotape would NOT be covered by an ASCAP or BMI license (broadcast might, depending on the type of license), and sale on videotape would have much less of a claim to fair use. Even though only excerpts are being played, making copies and selling them commercially looks like infringement to me. And the compulsory license provisions of Section 115 do not apply to reproductions of existing sound recordings unless the permission of the copyright owner in the sound recording is obtained. [Section 115(a)(1)] If the permission of the sound recording copyright owner is obtained, the videotape producer could, by complying with Section 115, obtain a compulsory license for the musical works.
Tyler T. Ochoa
Assistant Professor
Whittier Law School
tochoa[_at_]law.whittier.edu
Original Posted Message:
>
> I made a post a week ago about rights to music used in connection
> with sports events, and other than one comment about sacrificing a
> horse to make the event fall within the exception for religious
> events, I got no replies, either private or on the list.
>
> Doesn't anyone have any comments about use of recorded music in
> connection with athletic performances, amateur and/or professional,
> e.g. Olympic competitions vs. local amateur athletics?
>
> I'm used to having people's eyes glaze over when horses are
> mentioned <g>, but I didn't expect to get so little in reply to my
> post. Original post follows:
>
>
> Recorded music (usually commercial tapes or CDs rather than
> custom-produced recordings) is used to accompany the free-style
> (or kur) portion of dressage competitions. These competitions are
> much like ice skating or gymnastics competitions, in which the
> athletes perform prescribed motions to music -- except they involve
> a rider on a horse. Because a different tempo is required for each
> motion, the music is usually a montage of a number of different
> recordings, unless the rider arranges for a custom composition (very
> rare -- even at international level competition).
>
> These competitions range from local shows attended by amateur riders
> (not affiliated with any organization other than the local riding
> club or stable - and usually run on a shoestring budget) to
> local/regional shows sponsored (or sanctioned) by a national
> organization such as the U.S. Dressage Federation, to international
> competition sponsored by the Federation Equestre International (FEI)
> and the International Olympic Organizing Committee (IOOC). I have
> attended events at all levels -- from backyard shows for beginning
> riders to last summer's Olympics in Atlanta -- and I have seen dressage
> tests performed to montages of prerecorded music at all of them. With
> VERY few exceptions, the montages seemed to be made from
> commercially produced recordings.
>
> My questions are:
>
> - What rights have to be obtained by the rider for use of the music?
>
> - Is there any difference in the rights required for a neighborhood
> show vs. the rights for an FEI and/or Olympic event (is there a legal
> threshhold beyond which rights must be obtained? or is it just a
> practical threshhold where no-one knows about local shows, so the
> likelihood of being penalized for an infringing local use is low,
> while the likelihood of being "caught" in an upper level show is
> greater?)
>
> - If rights must be obtained, how do you clear them? Contact the
> publisher of the record label each piece of music was recorded on?
> The performer's agent? Or is there a clearinghouse which can do this
> in one stop? BMI? ASCAP?)
>
> - Is there any potential liability on the part of the **organizer**
> of the event, if s/he allows a rider to perform to music without
> adequate clearances?
>
> - What if the event were recorded on videotape (as Premier Horse
> Network did record the Olympics) for broadcast and for sale on
> videotape?
>
> _____________________________________________________________
> David M. Ginsberg, Dir. of Business Affairs - +1.213.932.0400
> MetroLight Studios, Inc. - http://www.metrolight.com/
> davidg[_at_]metrolight.com or davidg[_at_]westworld.com (home)
Received on Tue Apr 29 1997 - 20:24:07 GMT
This archive was generated by hypermail 2.2.0 : Mon Mar 26 2007 - 00:35:25 GMT