# 8. Copyright & Licensing

This is simply an informal guide and does not in any way represent legal advise!

[**National Association for Music Education has a wonderful resource on copyright and licensing.**](https://nafme.org/my-classroom/copyright/)

[**Great Berkley video series on Copyright for Musicians**](https://youtube.com/playlist?list=PL1wHeEmBdcWTFbkxKWZ8A9BQGvxv74gPw)&#x20;

[**Berkely Copyright Series**](https://youtube.com/playlist?list=PL1wHeEmBdcWTbxL2yqQZ2EmwmnEbvFD4b)  **(shorter videos)**

## **Copyright**

* A simple definition of copyright is a “limited duration monopoly.”  For a period of time, copyright allows the creator to have exclusive rights to his or her works, and therefore it incentivizes creativity and promotes progress in the arts.&#x20;
  * U.S. Constitution, Article I, Section 8:

    > The Congress shall have power . . . \[Clause 8:] To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;...
* To own copyright = create something in one of the following protected categories and record (fix) it in a “tangible medium of expression”:
  * literary works
  * musical works
  * dramatic works
  * pantomimes and choreographic works
  * pictorial, graphic, and sculptural works
  * motion pictures and other audiovisual works
  * sound recordings
  * architectural works
* So = a composer of a piece of music has the right to make a copy of their work and sell it to you ... you do not have the right to copy that piece of music you bought.
* sifting process for using others’ works:
  * Is it in the Public Domain? (in U.S. = cut-off for [public domain](https://en.wikipedia.org/wiki/Public_domain_in_the_United_States) moves forward every year; some later works are in the public domain too)
  * Is the planned use covered by an exception?
    * face-to-face or distance learning instruction
    * non-profit education school concerts (only if admission is free)
      * shopping mall concert is **\*not\*** exempt because shops at mall gain indirect commercial advantage
    * worship (does **\*not\*** include dramatic works)
  * Is the planned use covered by a Fair Use exception? (complete a [Fair Use Analysis](https://copyright.cornell.edu/sites/default/files/2016-10/Fair_Use_Checklist.pdf))
  * What type of permission or license will have to be acquired?

## **Licensing**

* Licensing is the mechanism by which to get written permission to use someone’s copyrighted music. There are different kinds of licenses to cover different kinds of uses, and there are a number of organizations that serve as the middleman in this process.
* A license is a type of contract that describes what you can do with a copyrighted work and how much you will pay for the privilege. It’s important to know that a contract supersedes the copyright law. So, if you have a license that allows you to do either more or less than you could normally do under the law, it’s the license that you should follow.
* Types of licenses you need depending on your project:
  * live performance = you'll need a **public performance license** from a Performing Rights Organizations (PRO = ASCAP, BMI, SESAC, GMR), they collect royalties on behalf of composers, songwriters, and music publishers when their works are performed publicly, then periodically pay everyone their fair share.
    * Note: most performances in schools are covered by the Concert Performance Exception, so PROs will not be involved in those (unless you charge admission, etc.)
  * audio recording = [**mechanical license**](https://www.easysonglicensing.com/pages/help/articles/music-licensing/what-is-a-mechanical-license.aspx) (you need this from the composer,  publisher, or licensing agent like Harry Fox Agency to distribute recordings of someone else's musical composition ... [this resource explains it well](https://nafme.org/my-classroom/copyright/mechanical-licensing-you-what-you-need-to-know-before-recording-your-schools-performances/))
  * arranging = **permission to arrange or adapt license**
    * [music for all resource](https://www.musicforall.org/resources/copyright/request-permission-to-arrange-/-adapt)
    * [arrange for hire resource](https://arrangerforhire.com/music-arranging-copyright-licensing/)
  * video project = [**synchronization license**](https://www.easysonglicensing.com/pages/help/articles/music-licensing/what-is-a-synchronization-license.aspx)
* “I want to use music for my project, but I am not sure what type of license I need” ... here is a resource to help with that = <https://www.harryfox.com/#/faq>&#x20;
* [Great blog posts about licensing and royalties](https://flypaper.soundfly.com/tag/royalties/)

{% content-ref url="../appendix/copyright-and-licensing-resources" %}
[copyright-and-licensing-resources](https://benjohansen.gitbook.io/musictech/2023_spring/appendix/copyright-and-licensing-resources)
{% endcontent-ref %}

{% hint style="info" %}
Discuss the process for optaining the correct license for each of the following if you wanted to video record your public school ensemble performing these works and post it online for all to see:

* Hammersmith by Gustav Holst
* Agnus Dei by Krzysztof Penderecki
* Son et Lumiere by Steven Stucky
  {% endhint %}
