Comments - Ten Reasons to Not Use Unlicensed Music In Theater - TheatreFace

Thanks Rich, I'm actually qui…

2011-03-01T17:09:39.545Z

Thanks Rich, I'm actually quite stunned at the number and scale of questions I've been getting--I've started discussions in other groups as well and yes, it is a discussion that needs to be had. I think I'll pursue starting a scheduled chat to answer questions on this issue. I don't in any way consider you to be argumentative--I am appreciative that you are asking hard questions that need answering.

As far as derivative work goes, it's very tricky. There's a lot of precedent out there going BOTH ways. Where the judge rules it's far enough away from the original work to be considered original BUT there are just as many cases where the judge rules that it is a copyright infringement. The rules don't seem to be hard and fast here which puts you on very uncertain ground.

Within the music industry, particularly in rap, there is the practice of "sampling" a piece of music. It's an extremely controversial issue right now. There was a case in 1924 where a judge decided that four bars of music was not a copyright infringement and that is used as a measuring stick by some. However the "four bars rule" is not law, it is merely precedent. Very risky. In fact the law itself reads "may be considered a breach". Which means any use, however small, should be seriously considered.

Sonya, Since you're talking…

2011-03-01T16:47:45.289Z

Sonya,

Since you're talking to your attorney anyway...how does the idea of "derivative work" play into all of this? My understanding is that "fair use" comes into play when the use of a work is "derivative" of the original work. Since we might be using 15 seconds of a particular piece of music in a way that is different than its originally intended use--to comment on the music itself, and to make comment on action onstage--couldn't this be considered "derivative"?

It sounds like I'm trying to cut down your argument, but I'm not--I think this is an important discussion to have, and I'm just trying to work through what I've been given to understand...

Rich

Hi Rich, Thanks, please do ch…

2011-02-28T23:22:51.505Z

Hi Rich,

Thanks, please do check out the site.

Yes, there are a lot of misconceptions surrounding the term "Fair Use". I'm actually going to consult our fantastic entertainment and copyright attorney, Gordon Firemark on this but here's what I know off the top of my head.

1) Doesn't matter if it's non-profit, even if you aren't charging money. If it's for the public in any form it's a copyright infringement. Now a performance within the confines of a class setting is "fair use" but if the parents are invited it's a public performance. Even if no money changes hands.

2) In actual fact, if you are using a small piece of music, this is a very particular copyright infringement that holds the exact same penalty. It constitutes a change of the material and is also prohibited.

3) It is entirely up to the artist and whomever he or she has conferred rights to (publisher, manager, etc) to make decisions about how the music is marketed or not marketed and you don't have any right to enter into the equation.

Sonya, First, let me say th…

2011-02-28T21:58:17.247Z

Sonya,

First, let me say that I think the service you're providing is a fantastic idea. I haven't had a moment to check out your site, but I hope to soon. Also, it's worth saying that I'm not at all interested in "stealing" another artist's work, or finding a way to take money our of someone's pocket--all artists deserve compensation for their intellectual property.

I did want to ask about your ten points and the concept of "fair use," which I have always understood to cover the use of incidental music during a production. My understanding suggests that because

1) (Usually) the music is being used for a non-profit production

2) (Generally) the amount of music from the original track is relatively small compared to the total length of the track

3) The use of the music on stage would not generally speaking detract from the marketability of a track or album (i.e., people would not choose *not* to by an album because you've used a portion of a track in production)

the use of this music is permitted without obtaining permission.

I'm prepared to be wrong--and I'd very much like to know if I am!--but I'm not sure how or why the "fair use" exemption doesn't apply. Can you provide more information?

Perhaps some other musicians…

2011-02-28T15:46:40.783Z

Perhaps some other musicians out there will take a hint and start offering easy ways for people to use their music. Most of the time I direct or design sound for very small theatre groups who can barely afford the royalties to the shows, much less paying for music rights. I look to get personal permission from friends who have done albums, and I'm always on the lookout for musicians who can throw some chords together either live or self-recorded. Otherwise I've done underscoring with generated tones and modified free sound effects. (Thanks to Audacity and other free programs out there.) I think what you're doing is great and I wish you much success.

Hey Joe, I forgot to mention…

2011-02-28T15:00:32.457Z

Hey Joe,

I forgot to mention that you only pay for the public performance license--NOT the music itself. So if you were to download 18 cues during your rehearsal period but in tech you found you only needed to use 10 of them, you'd only be charged for the cues that you use.

Hey Joe, So glad you liked…

2011-02-27T22:48:55.221Z

Hey Joe,

So glad you liked the site. The prices are on a sliding scale based on the size and scale of the theater. For example a little community youth theater that did a show with 6 cues for three nights it was $50 total. If a big LORT house wanted the same cues for a three week run it would probably be ten times that--of course LORT houses are pretty great about hiring composers so that doesn't come up often. And if you are buying as an organization rather than as an individual, you can get a membership at $240 a year (and yes, you can make monthly payments) and you can use as much as you want and we guarantee the clearances.

Fascinating stuff, Sonya. It'…

2011-02-27T19:46:47.645Z

Fascinating stuff, Sonya. It's amazing how many companies either think they're covered or just don't give it any thought.

The music on the library sounds good, and the layout seems cool. Track previews are clean and easy. I'd be interested to know how much each piece costs to license.

Hi Scott, Yes, membership in…

2011-02-27T16:51:56.102Z

Hi Scott,

Yes, membership in AACT (we love them) does offer great ASCAP discounts for pre-show music but if it's during the duration of the play, you are not covered by ASCAP and that's the arena where I'm trying to help protect people.

Regardless of how difficult it is to get clearances, it still has to be done. MUCH more difficult problems arise if you don't do it and get caught!

That being said, give www.musicues.com a listen.

It's a very tricky issue to d…

2011-02-27T16:44:51.929Z

It's a very tricky issue to deal with because so many artists simply don't respond to requests for permission, or simply can't be bothered with something as trivial as a small theatre production. The other issue is with recorded music rights. Even if you get the artist's permission, there are a string of other people and/or corporations involved in the making of a recording, and they are all supposed to get royalties also.Using a published recording requires permission from both the artist and the recording company or their representative, usually ASCAP.

By the way, when it comes to pre-show or intermission lobby music, members of the AACT (American Association of Community Theatre) get huge discounts on ASCAP contracts. If a community theatre, (or even a small professional company,) doesn't have a license, they should. Membership in AACT pays for itself right there.