U.S. copyright law does not recognize a public performance right for sound recordings.  When you hear a record over terrestrial (AM/FM) radio, the broadcaster only pays performance royalties to the composer of the musical composition, while no performance royalties are paid to the owner of the sound recording.  Why?  Well, for long and complicated reasons but, essentially, because congress wanted to reward the poor composer hunched over his piano but decided that radio play was free record promotion for the owner of the sound recording — and, hence, no need for additional payment since they were making their money through record sales.  The United States has lagged behind the rest of the world, which predominantly recognizes this right.

The musicFIRST coalition describes itself as “a partnership of artists and organizations in the music community who support compensating performers for their work when it’s played over the air.”  As such, the coalition is dedicated to securing a public performance right for sound recordings.

TODAY, musicFIRST is inviting recording artists, performers and music industry professionals, to join Congressman John Conyers and Sam Moore, former Motown Artists Martha Reeves, Mary Wilson, and Duke Fakir and others for Awareness for Fairness: A Discussion about the Performance Rights Act, H.R. 848, Tuesday, June 2, 2009, 10:00 a.m. – 1:00 p.m., Wayne State University, 471 W. Palmer, Detroit, MI  48202.

For more information about musicFIRST please visit: www.musicfirstcoalition.org

–Matt

Randy Safford (the “Safford” in “Safford & Baker”) is a member of the acclaimed Motor City Brass Band (http://www.mcbb.org/) here in Oakland County, Michigan. One of Randy’s MCBB bandmates recently had a question about musical arrangements. Specifically, this person wanted to know what rights, if any, he had in his original arrangements of musical works currently under copyright. The following is my response to his question:

A music publisher is an entity that represents songwriters by controlling and exploiting the copyright to a song or musical work. Although some songwriters may not use a music publisher – and in some cases, elite songwriters may create their own music publishing companies for their songs (e.g., Irving Berlin, Bob Dylan, Rogers and Hammerstein, Billy Joel, Michael Jackson, Bruce Springsteen, etc.) – in the vast majority of cases, an independent music publisher is going to control all of the exclusive rights to a song.

While you are free to create a new arrangement of an existing song, generally speaking you cannot commercially exploit that arrangement (e.g., on records, sheet music, etc.) without a license from the music publisher, or other copyright owner.

The following explains how you can commercially exploit a new arrangement:

Records. If you create a new arrangement and you want to exploit it on records, you generally need a “Compulsory Mechanical License”. A Compulsory Mechanical License, or Mechanical License, allows you to make a sound recording of your new arrangement, without the permission of the copyright owner, provided you do not change the words or fundamental character of the music, and you pay the statutory Mechanical Royalty Rate. Publishers will usually include the right to make arrangements in a Mechanical License, provided the publisher receives full ownership of any arrangement created. A mechanical license can only be used after the original copyright holder has exercised their exclusive right of first publishing. In the absence of a Mechanical License, you need to contact and negotiate with the music publisher, or other copyright owner, directly. To learn more about obtaining Mechanical Licenses, contact EMG or The Harry Fox Agency.

Sheet Music. If you create a new arrangement and you want to exploit it by selling sheet music, you need to contact and negotiate with the music publisher, or other copyright owner, directly. There is no “Mechanical License” for creating new arrangements and selling the sheet music. To find the music publisher for a particular song, you can look on existing sheet music for a song, through one of the performing rights organizations (see below), or through the National Association of Music Publishers.

Public Performance. If you create a new arrangement and you want to exploit it through a public performance, you need a license from one of the performing rights organizations, ASCAP, BMI, or SESCA. These performing rights organizations collect fees for public performances of their members’ songs and distribute the royalties to their members. Usually, the venue where you will be performing will already have a general license from one or all of the performing rights organizations.

–Matt