The use of copyright material is one of the more complicating factors for symphony orchestras in the creation of electronic media activities. The questions you have to answer include:
- Is the work being performed under copyright or in public domain? (Be careful to check the copyright status of new “critical editions,” which you may think is in public domain, but may have been given a renewed copyright in the “critical edition.”)
- If it is under copyright, does the use require the permission of the copyright holder (i.e. a voluntary license granted by the copyright holder), is it subject to a compulsory license (automatically granted by the copyright holder, subject to the payment of required fees), or is it defined as “fair use” under copyright law?
- How much will it cost, if anything, to use the copyrighted work in an electronic format?
- Is the cost negotiable with the copyright holder or fixed by statute? Although mechanical license fees are fixed by copyright law, those releasing recordings of longer works often are able to use the long length as a rationale for negotiating a rate that is between 50% and 75% of the regular rate.
- Whom do I contact to determine and/or negotiate the cost?
Although the answers to the above questions are not always simple or clear, knowing where to start may help to minimize the time and confusion. Intellectual property attorney Corey Field, Esq., of the law firm Ballard Spahr Andrews & Ingersoll, LLP has put together a chart, which lists the sections of U.S. Copyright Law that apply to the electronic media use of different types of copyrighted works and where the corresponding authority rests for granting permission for the use. As with other legal issues, you are urged to use this chart only for general guidance and to consult with your own attorney about any questions you may have.
Here are links to some other copyright resources, with some basic information that may be useful:
M.E.L.O.N.: Multimedia and Entertainment Law Online News
The use of copyrighted material is one of the more complex areas of intellectual property law, particularly in the context of how to interpret provisions of the U.S. Copyright Act covering the electronic distribution of digital material. The topic is evolving constantly, and disputes about copyrighted material on the Web are making headlines; the results may affect how your orchestra uses copyrighted material online. In a newsletter sent out by the New York-based law firm of Proskauer Rose LLP, attorneys William M. Hart and Louis M. Solomon outline the issues in a recent law suit between Google (YouTube) and Viacom regarding Viacom-owned material on YouTube. If you are planning to put material on your orchestra’s Web site, or find your own material on another Web site without your permission, be sure to contact your legal counsel.
The article is provided by the kind permission of Proskauer, Rose LLP. It is designed only to give general information on the developments actually covered. It is not intended to be a comprehensive summary of recent developments in the law, treat exhaustively the subjects covered, provide legal advice, or render a legal opinion.