Copyright Issues of a Live Recording

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DDev

DDev

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I tried a search on copyright issues but didn't find anything related to my question, so here goes.

I was contacted today about possibly recording a high school band concert. The boosters club would like to sell a limited number of CDs to family and friends.

Does anyone know what the copyright issues involved with this would be? If not, anywhere I could begin searching to find out?

Thanks,
Darryl.....
 
Thanks for the link, Gidge.

Now I understand why there are lawyers who specialize in this stuff.

Looks like I've got a lot of reading to do tonight.

Darryl....
 
As in most things involving lawyers, the answer is "it depends."

If you are recording songs that are still under copyright, then yes, you need to contact the copyright holder or their agent (most likely the Harry Fox Agency) and obtain a Mechanical License for each song. You will pay 8 cents for each song, for each copy of the recording you make.

Now, if you're making 500 copies of this CD, then you probably ought to do this. If you are making 20 copies for the families of the band members, you could argue that this falls under "fair use," and you are OK without the Mechanical Licenses. I would not "sell" the CDs to the band boosters, though. I would accept a donation from the booster, and then give them a copy of the band's CD as a "thank you." The legal world turns on such subtle differences. (If you are making 500 copies, then it wouldn't matter whether or not you "sold" the CD or gave it away -- you would still be responsible for the mechanical License fees).

DCM
 
Very interesting, DCM.

If I understood what you said correctly, for a distribution of, say, 100 CDs, the boosters club could solicit donations with a CD provided for each contribution as a "thank you", and then the boosters club could donate a portion of their proceeds to me as the service provider, and I would not have to obtain a mechanical license for each song?

As long as I keep it clear that I'm not selling anything I think this will work. I cannot imagine they would need 500 copies of this for a 100 member band.

More to think about.

Thanks,
Darryl.....
 
To my knowledge, fair use does not include "vanity pressings", whether given away or sold. Fair use is to allow commentary and exchange of ideas - so reviews, or political statements that quote a portion, would be allowed. But not full recordings of a performance, unless maybe they were only given to the participants themselves.

Your best bet, to get a straight answer on this, might be to contact the publishers of the music the band is using. This is because you will also be using THEIR arrangements. Most musicians on this board that are doing other peoples music are doing their own arrangements. School Band is different. Arrangements are copyrighted too - and for music that's otherwise public domain (pre-1925 compositions, roughly), perhaps the only thing that's subject to copyright, besides the performance itself. And school bands almost always buy/rent arrangements.

Church music publishers are well aware of issues involving small pressings, so I would guess that publishers of school band music would be, too. So get some names, and start calling...

Good luck.
 
DDev -

Be careful -- I didn't actually say that, but maybe I'm not being clear.

You are required to get a mechanical license for the distribution of any copyrighted works. That's the law. But, as we all know, the law is an interpretive thing.

The fact that you sell or give away the CD is not important to the copyright laws. It is the quantity of copies that is really the deciding factor. (I suggested the "give away" CD for a donation for a small number, just to keep things separate).

"Fair use," in addition to what dafduc said above, also covers recording and copying songs for personal use. Again "personal use" is something that could be interpreted. You are perfectly within your rights to buy the Monkees Greatest Hits and make a copy on you mp3 player, a cassette, and even another CD or two. You are NOT within your rights to make 100 copies and give them as Xmas presents to all of your friends. In your specific case, it would probably (and I'm no lawyer, so don't rely on anything you pick up in an internet forum as true legal advice) be OK to give a copy to each band member. To make many many copies for the express purpose of fundraising would probably not be scene as "fair use."

The questions in your case really comes down to: Are the songs you are recording and distributing under copyright (if they've been written within the last 90 years or so, chances are the answer is "yes.")? How many copies do you plan on making and distributing? To whom will those copies go?

There are legal answers to all of these questions, and there are ethical answers, which may be even tougher to come up with. To be safe, I would call the Harry Fox Agency and talk to one of their reps. Tell 'em what you want to do, and do what they suggest.

BTW - I know from experience that YOU are personally subject to being sued for infringement if you record, copy and distribute this CD. You are, in essense, acting as an indie label, and even if the band were to tell you that they have rights to all of the songs, if they don't and there is litigation, the RIAA can and probably will go after you.

I'm an advocate for the rights of songwriters and musicians, but don't get me started on the RIAA ! :- /
 
I appreciate the clarifications provided. I raised the question in the first place because I do want to be sure that everything is above board and legal if I pursue this. I am used to what I do with my church where we have a license with CCLI that allows a limited number of copies of recordings to be distributed, but I was not sure how to deal with this in another arena. I know I've read some threads somewhere where someone was doing this exact thing, so I was hoping to snatch an answer from someone with specific experience.

I went through the Harry Fox Agency website and when they get down to this specific question they have a comment that is something like "we don't do this anymore". I guess I need to get a live person on the phone to discuss and see what the legal obligations really are.

Anyway, thanks again for all your insights.

Darryl.....
 
Here's the obvious, charge them money to record it, make the cd's and let THEM worry about everything else. You're just an engineer recording them, what THEY do with it is totally up to them. Grab the money and walk away. :)
 
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