[Bards] FW: Filking <of course it's a long reply!>

Ken Theriot kentheriot at ravenboymusic.com
Sun Apr 27 14:59:07 PDT 2008

Re-posting because the PTBs said the last was too long.  Shhheeesh, go
figure.  Me?  Long-winded?






I think 'period' music, created by and original to our SCA and Ren Faire and
SF&F performers and artists is great.  Faire game (sorry;)) as far as I'm
concerned.  We just have to be careful not to lay claim to the work as our
own, making sure we give credit to the original composer.  In fact, there
may actually be copyright violation issues to deal with.  It can get tricky,
and even our attorneys tell us that intellectual property is a minefield.
Licensing, permission, infringement, Fair-Use, parody, etc. are all terms
people casually throw around without really understanding their meaning.


Chirstianna, did you ever do any legal work with IP?  You may be the best
one to shed some light on this if you did.


I may one day give a class on this, but it is something we have to deal with
all the time since we publish recorded CDs that sometimes contain the work
of other people.  Here are just a couple of legal realities we have had to
learn for our little RBM business.  Though I'm not, technically, a lawyer
(:-)), this might prove helpful to some.


There are three primary kinds of licenses involved in publishing or
performing someone else's work.  1.  The mechanical license (also known as
the "compulsory license").  This is easy, costs very little, and is pretty
straightforward.  If you record somebody else's song on your CD, (assuming
they have published their song), all you have to do is pay them (actually
their publisher..often one and the same) the statutory rate, currently
9-cents per copy per song.  If the song has already been released by the
original artist (or published in any way), they actually have no say in the
matter!  That's where the "compulsory" part comes in.  It may not be NICE to
record someone else's song if they don't want you to, but it isn't illegal
as long as you pay for the license.  2.  Permission to print lyrics.  Even
though you may have obtained the mechanical license for a song to put on
your CD, reproducing/printing the lyrics DOES require permission.  It
doesn't usually cost anything, but can be MUCH harder to obtain.  Doing it
without permission is a copyright infringement.  3.  The performance
license.  Any "public performance" of a work under active copyright is a
violation of copyright law IF the venue does not have a performance license!
Note that I said "venue" and not "performer."  Performance licenses are not
usually granted to performers, but rather to a venue.  For example, you may
notice "ASCAP" or "BMI" stickers in the windows of restaurants or bars.
That's because they pay performing rights organizations (PROs) like ASCAP
for the right to play music in their establishment.  If they don't have
these licenses, they can't have the radio on, can't have a juke box, can't
have bands doing covers, etc.  We used to play at Borders Books and Music
quite a lot a few years ago.  Depending on which site we played, they would
sometimes ask us to only play songs we owned the copyright to.  If we had
decided to play "Witch of the Westmereland," and Archie Fisher found out
about it, he would have grounds to sue Borders.  We would not be sued!  The
venue would.  That is an important distinction.  Now is it likely that
Archie Fisher would ever find out?  And if he did, would he sue?  I think
the odds are very low.  But it does not mean it isn't illegal.  The reason
this is so important is that SCA bardic circles can be considered "public
performances."  Though suit is not likely, we could be putting the site
owners in legal hot water if we perform works under active copyright.  


One last thing (I promise).  I have heard MANY people say that they are not
violating copyright because of the "Fair Use" doctrine in copyright law,
which gives you a pass if the work is used for "criticism, comment, news
reporting, teaching (including multiple copies for classroom use),
scholarship, or research."  It does NOT matter how much of the original work
is used.  It's all about the purpose.  I've heard people say "well I only
used a few of the lines from that song, so it's OK under the Fair Use
doctrine."  Not true.  You can be OK using an entire song, or in violation
if you only use a line or two.   


OK, if there are any entertainment attorneys on the list, please feel free
to clarify any of this.





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