The "Know Your Rights" article linked by Tim is a "print-and-save" type of reference covering the blunt facts about using commercial recorded music.
By "commercial recorded music" I'm talking about recordings that are released for sale to the general public.
Since doing Low Power Hour No. 92 on the subject of copyright I am still within the spell of confusion that I think continues to linger despite clearly written guides like the one above. What I suspect is that the guide doesn't tell us everything. It's only part of the story.
At the present time I have opened talks with two large public radio stations that allow use of certain programs simply based on giving their permission. I have asked them to review this policy and get back to me whether affiliates ALSO must sign on for all the copyright licenses. At the moment the initial answer is "No, these stations OWN the program properties outright and only their permission is needed."
Another interesting case is "The Happy Station Show" available free for radio stations from Keith Perron of PCJ Media. Several years ago Keith sent me a detailed explanation about why no further copyright permissions were required based on certain criteria, one of them being "noncommercial use." That document from Keith is lost due to my recent e-mail crash, so I'll have to ask him to re-send it.
I'm not here to keep things in counfusion, but I am not convinced that any of the guides we run across address everything that we seek to know.
The harshest thing in the "Know Your Rights" link is the statement "Ignorance is no excuse." I think that statement is misleading. The word "ignorance" derives from the word "ignore," which would only be true if we weren't concerned about the subject and refused to look into it. But we are NOT ignoring the matter of copyright. However, if it's too detailed and confusing for us to gather all the facts despite our best effort, there may be important points we end up not knowing. That is NOT the same as ignorance and IS a legitimate excuse, since we make a best effort to understand the rules.
ALSO, the "Know Your Rights" article exhibits absurdly threatening, fear mongering, and overly punitive actions out of all proportion to the alleged infraction. It really makes the music industry look mafia-istic.
The bottom line is, if you're playing music intending someone other than yourself to hear it you must pay for that right. Non-commercial is NOT a factor, unless the license holder grants you that permission based on that fact. SESAC sent me a waiver for having to pay for rights. That is their option as the group responsible for their copyright holders. But I don't have that right without that permission. BMI does not offer such, and ASCAP is still up in the air.
NO ONE EXCEPT THE LICENSE HOLDER of the music can give permission for you to play it on the air, on the web, pass out free copies on CD to friends, or any other type of distribution. Period. e.g. if you're playing vintage radio programs from 1944, I don't care what the program is, and you're told the program is public domain, or whatever, or a station, producer, whomever GIVES you the programs and says here, enjoy. You're non-commercial and so are we, and we own the program, we produced the program we can give it to you. they can. As long as they have removed any MUSIC from the program. There is ZERO "public domain" music that is recorded legally available in the USA. Songs before 1922 may be in the public domain as far as the copyright for the SONG ITSELF but the PERFORMANCE of that song -- e.g. the SOUND RECORDING is NOT in the public domain. YOU can sing that song without paying rights, and go ahead and broadcast it. Or you can hire your own band to do it (as long as it's older than 1922) but no existing sound recordings in the USA are public domain or copyright free. This is a fact of law, even if you can find websites that try to tell you otherwise. NO program producer, network, station etc was too likely to have bought out the exclusive rights to a song that transferred the copyright to them. If you run an old Burns and Allen show and Gracie sings Happy Birthday to George within the show, the holder of the copyright to the song Happy Birthday will expect to be paid for it. If you play music, you pay. Period. There is NO exception ANYWHERE in copyright law that gives one the right to use things just because it's "non-commercial". "Fair use" exists basically for review purposes. You can't play a song and claim fair use. You could play a few seconds of a song, and critique it on your program, and THAT is "fair use".
It is not possible for a radio station, show producer, etc to grant broadcast rights to programs that include music claiming to performance rights license must be paid to broadcast it. There is no such thing as free for "non-commercial use". There's no such thing as "fair use" that allows the broadcasting of an entire song, or to use part of a song unless it's as an example used in conjunction with a review, etc.
A lot of the fear mongering is because the music people ARE mafia-istic. I do not AGREE with the system, and I DO NOT believe it is fair or right, but not beleiving in it does not change it. If you do ANYTHING that presents ANY copyrighted music to be put to the ears of the public, you must pay. The only way to NOT do so is to play music that you get directly from the writer/performer, who is NOT affiliated with a PRO and gives you permission to play their music. Keep in mind they have to be providing the WORDS, the MELODY and the PERFORMANCE. If I record "Happy Birthday" and tell you you can play my recording, I can only give you the right to my performance of the song, not the rights to the song itself.
Many will tell you you don't have to pay. You do. For ANY music that is available to the public. Intent will be part of it. People with a Part 15 transmitter used to play their old portable cassette walk-man into the FM radio in the car are clearly doing this for personal use. If they hook up a mic and start acting like a radio station, even if only the neighbors can hear it, if the intent is for someone else to hear it, that's enough to need to license the music.
Remember, it doesn't even have to be "commercial recorded music" If you hum Glen Millers "In the Mood" over the air, you owe for a peformance of this song to whomever holds the copyright to the song. On RADIO you do NOT pay the performer, just the writers. So far the old school theory that the performers benefit from the playing of their song in enticing the public to buy it has held up, but it may not for long. If you play it on the internet, you pay the writers AND the performers, as there are new rules for new mediums.
I can go on forever, and I can argue all the points. As I said, I don't have to AGREE with the laws and costs, but they are what they are. I've spent 41 years in radio dealing with copyrights. I'm an actual member of ASCAP as a publisher, and I work with a copyright attorney when necessary. The guides you read aren't complete because the variables people try to come up with to not pay never end. If a song, ANY SONG that YOU didn't write is broadcast on the radio you have to have a license. I don't care if it's part of another program or played off a 70 year old phono record.
I live an hours drive from a housewife who downloaded a dozen songs of Napster back in the day. She's still trying to fight the several hundred thousand dollars in fines the industry won from her in court. It's not the concept of stealing a song, but the concept of violating federal copyright laws. Today, a paid for song is only worth about a quarter at retail but copyright is apparently worth hundreds of thousands.
When I send out weekly shows of "Tim's Oompah Hour" the stations playing it are responsible for having the proper licensing to play it on the air. When a station plays ANY syndicated show, they are required to have the necessary music licenses on file for the right to broadcast those songs.
If you make a "Podcast" and upload a program for the public to hear, and it contains copyrighted songs, you MUST have BMI/ASCAP/SESAC and SoundExchange licenses to do so. If you are already a terrestrial radio broadcaster, the PRO's give you a break on the streaming license. If you're radio ONLY you don't need Soundexchange.
I see stories every day in the media trades about how many streamers and podcasters have been shut down and fined for not having proper licenses for their music in their programs.
A lot of people get away with it forever, just like people who speed on the highway. You might get away with it, you might get a ticket, you might lose control in a turn and die. It's your own risk management.
I'd be glad to answer what questions I can. But I'm NOT a copyright lawyer, but I have a LOT of experience over MANY years and my daily work involves all this stuff, so I'm pretty well versed about what is legal and what is not.
Public radio people are some of the worst as they tend to thnk they're somehow special and exempt from copyright in many cases and this is simply not true. they do however get a GREATLY reduced rate from the PRO's compared to "commercial" radio even though they generally have MORE money, work with larger budgets, have the benefits of volunteers, and are equally able to pay, of not more so. I've compared the financial statements of commercial FM stations with similar "public" FM's in the same markets. The cash is about the same, but the "public" gets free volunteer staff, reduced taxes, rduced licensing fees, and their engineers and management get paid a LOT more than those of commercial broadcasters. I've seen the paperwork!
Anyway, horribly long rant over now.
Tim in Bovey
Just to make it clear, what Tim is talking about in his previous post applies ONLY to the U.S. There are completely different laws here in Canada, and even more different (and lenient) copyright laws currently in Europe (although they're moving to change them).
As an example, there ARE music recordings in the public domain in Canada - in fact, copyright exists on recordings for 50 years. Similarly, copyrights for songs (writers, etc.) go for 50 years after the last surviving owner passes away.
So, for example, a song written and credited to only Fats Waller in the 1930s would be in the public domain in Canada, and the recording definitely would be as well (he died in 1943). It seems rather bizarre to be searching for the dates as to when people died, but that's the way copyright laws work.
And the song Happy birthday is in the public domain here - in the U.S., Warner Brothers (dubiously) claims the rights and defends those rights vigorously.
Copyright fees also vary according to the country. The U.S., as Tim states, has 3 licensing bodies. Canada, as an example, has 1, and that body has rights agreements with almost all of the major licensing organizations around the world, making it one stop shopping. Plus our fee structure is very different as well.
The thing that I find most draconian about the U.S. laws is that they allow virtually anyone to claim ownership of music, and it's basically up to the person who is being charged with copyright infringement to prove themselves innocent (as opposed to the other way around as it is in criminal law). That's how Warner Brothers got hold of Happy Birthday rights, and it basically would cost more to defend oneself in court than it would to pay their asking fees. Similarly, various OTR shows have actually been thrown back into copyrighted status (from being generally accepted in the public domain) by individuals claiming ownership (such as about half of the Lum and Abner series).
The rule of thumb - investigate the laws of the country that you reside in, and if you're in doubt, get legal advice.
[Edited to correct a factual error - I mixed up music and film copyrights]
One program bit the dust. I talked with the provider of one of my programs which I've had permission to carry, and he had to go and check with somebody, but it turned out that I would need to "report the playlist" to the copyright agents which would mean needing a staff and budget which don't exist. With sadness I discontinued the affiliation.
But another affiliation I have assured me their permission alone was sufficient to keep using their programs.
Then I remembered all the programs we carry benefit of Creative Commons and Community Audio (formerly Open Source Audio). Here is a case where being non-commercial is actually the ticket to receiving free programming. One large carrier of these free programs is archive.org, an online library repository where contributors share their work.
The commercial music, consisting of the best selling and most popular records, is so attractive to most station producers that it is like sugar or salty snack and people can't live without it. It's flypaper and catches tons of flies.
The "Community Audio" designation for freely usable audio material is described here
http://blog.archive.org/2010/05/12/community-a-new-name-for-open-source-collections/
In RADIO broadcasting ONLY there is NO reporting of playlists, artists, etc. ZERO. The licenses for radio from the PROs are all a blanket license which includes broadcasting any titles from their catalog as part of the deal. The ONLY reporting requirements in the USA are streaming, podcasting, satellite radio, etc. Things now considered "new media".
Yes, Creative Commons is a good way to get songs. Note that there are varying forms of CC licenses some require Attribution (you must credit the writer/performer, etc. at the time of the performance) Which means if your station simply plays a mix of songs off a hard drive with no announcer who is announcing the song, title, performer as is required by the specific CC for that song, you're not meeting the spirit of the CC rules and are violating their copyright. Keep in mind a produced show that's CC, if it contains "popular" songs, those songs are not CC themselves and would require you to have a music license. Producing a show that uses music does not turn regular copyrighted music into CC music.
Yes, the laws vary GREATLY among countries. I talk about USA only of course, since I've never even BEEN to any other country.
Did you know original copyright law in the US lasted for ONE YEAR to give the creator the opportunity to earn money from his work? Most of the laws since that have made US copyright what it is today was driven by big corporations, publishers, record companies, etc who wanted to insure their cash cow for decades. This allows them to reap profits year after year, from someone elses work from whom they bought the copyright, without having to do much themselves.
Bottom line is, if you broadcast a song covered by ASCAP, BMI or SESAC in the USA you need a license from that group. No matter what. There are no exceptions unless one of those organizations grants you an exception. When you get right down to it, it's that simple. All the complications come up when people who don't want to pay start coming up with reasons why they shouldn't, and these reasons spread like urban legends and people start to believe them. The answer is, again, simply, if you broadcast a song covered by BMI, ASCAP or SESAC in the USA with the intention of the public being able to hear them, you need a license.
This covers ANY sort of public performance. We talk of radio here, because that's our topic. Lets say it's Christmas, and you put up a big light display in your yard and you go crazy and hook up a music/lights system to play music in the yard that synchronizes with a light show. The itent is for people to stop during the season and watch and listen to your display. YOU NEED A LICENSE as this is a public performance of copyrighted music! Lets say you have a clothing store, and in this store you have speakers mounted in the ceiling so that your customers can listen to the radio while they're shopping. YOU NEED a license! Yes, even though the radio station has paid through the nose to license that music to broadcast it to the public, YOUR playing of that music through YOUR system so that the PUBLIC shopper can hear it, your store must HAVE A LICENSE! Stores get busted for this OFTEN. Got a coffee shop where you have "open mic night" on Thursdays, and you encourage local musicians to come in and perform? You better HAVE A MUSIC LICENSE. Unless of course they're playing ONLY original music. We have an area coffee shop that cancelled their weekly open mic night after an ASCAP rep stopped in on one such night and told them cut it out or ELSE!
NO ONE except for a license rep from one of the PRO's can grant you the right to allow music to be performed or broadcast. No radio show producer can say that you can broadcast a program full of copyrighted music -- there's simply no way they bought out the copyright holder or publisher and now hold all rights and have the power to distribute those songs as they see fit. They can give you the show, indeed, but you need to have the license to broadcast it. ALL syndicated radio programs have contracts, and within these contracts one of the first and most common items is that the broadcasting station has and shall maintain the proper licenses for broadcast during the duration of the broadcast contract with the producers.
Like the saying goes, if you wanna dance, you gotta pay the piper.
One footnote: There IS an instance where radio would do "reporting" BMI every so often has a random group of stations report what they play. Back 30 years ago, they'd send a station a big fat envelope of forms, left in the studio. Jocks had to fill out title, artist, writer. This was easy in the days of records as all that information was on the labels. EVERY minute of air time, 24 hours a day for 3, 5 or 7 days depending on the packet you got, had to be accounted for. Nowadays, since most stations play music off hard drives -- when WE get the turn to do it at work, we just download the playlist for the required days and send it off to them in text on a CD. BMI uses this data to determine what artists get paid what amounts. It's a complex formula that I believe shares data with ASCAP. This is the ONLY reporting a broadcast station might be required to do.
Tim in Bovey
EVERYTHING Tim has said is true, I don't disagree with anything, but my message is that THERE IS ALWAYS MORE TO IT.
Let me give a case in point. There is a historic cultural landmark in Boston called the Issabella Stewart Gardner Museum which is in fact an art museum, botanical garden and concert performance center. A regular series of chamber music concerts are available free to non-commercial stations under Creative Commons license so long as no changes are made. The program contains announcements and so is "self-attributional."
http://www.gardnermuseum.org/music/listen
The musicians have entered into contractual agreements to allow this to happen, and the music is a mix of public domain, music from as far back sometimes as the 1600s, but also some modern music which is under copyright. In some way arrangements have been made to allow this music to appear under the CC license.
Right now I have relationships with two additional fine-arts concert organizations which assure me their permission is sufficient to allow me to stream. They also present music from antiquity plus modern music, with performance rights embedded in the contractual arrangement.
Perhaps fine-arts music has special compensations afforded it compared to pop music? I don't know, but it appears that could be possible.
Classical music has a national problem in the U.S. in that concert tickets don't sell as well as baseball tickets and radio stations have been dumping classical music with almost none picking it up anew.
Even classical record sales have always been somewhat of a loser compared to pop record sales, so it would be logical to have different rules, but no one has come out and admitted that such a thing is happening.
I'm on the trail, spinning my wheels.
In Canada, the music license for a BETS (Part 15 equivalent) station is a streaming license (T22) - if you have that license, then they don't care about the over-the-air component due to its relatively short range. I don't know what they'd do if you only have an over-the-air component and NO streaming.
There are separate licenses required if you want to play music in your retail store, as an example. And if you are performing music live, on stage, then you need yet another type of license.
Thanks to Artisan and other Canadian contributors it appears to us down here in the UN-united states that we are goofs and suckers being taken to the cleaners for the sake of greed. But let's set that aside for the moment.
One statement really registers on my sensation, and that is: "...they don't care about the over-the-air component due to its relatively short range."
That makes sense. That is rational and sane.
MOST and in some cases ALL of the usable field strength of a Part 15 station is lost in UNOCCUPIED SPACE, unless you count birds and foliage.
Even when the signal does well in a car on the street it is certain the signal will not penetrate walls and be so usable inside people's homes.
My analysis of the situation is that the only thing we have to fear is streaming itself. I would even go so far as to believe that anyone who would pay and report for mere Part 15 transmission is a money waster.
It's the stream they want to price out of existence because it's too easy to stream and streams go all over the globe with no effort. THEY hate that. That is NOT the kind of freedom they will tolerate.
How dare we believe we have anything to contribute to world culture.
People of pocket want to retain their media power, even if it means crushing the little stations into homelessness and poverty.
Other than that lets have a drink, I'm buying.
The nice thing about classical is... it's nearly all written before 1922 and is clearly public domain. Any recorded performance of the music however IS subject to copyright. But since over the air traditional radio only pays copyright licenses for the song writers and zero for the performer, you can broadcast classical music safely without a license. However, you CAN still get hung up if the arrangement has been altered and the new arrangement has a modern copyright. Most find it safer to simply be licensed even in the case of classical music. You have to actually look at the published information -- generally a classical record will say something like "Arrangement by John Doe BMI" which means you'll be needing a license to play it. And of course if you're streaming or podcasting you'll need a license from all the PROS as you have to pay for use of the recording itself, not just the song.
Carl, you may be covered if they have musicians who have cleared their work for streaming/broadcasting, and their songs are all PD or considered new works of their own arrangement. You could still be queeried by someone from a PRO but if you have it in writing that the musicians have cleared you and the songs are PD or CC you can show that you, in good faith, did your best to do the right thing, you'd probably be OK.
Carl, it's *possible* that the new arrangements of popular songs, in this instance, are different enough to have created a different composition, a derrivitive work, or some other aberration that may allow a CC license. This gets into a real gray area and one in which I don't have a lot of experience. But when it comes down to radio programs, virtually every station in the country has licenses from the three PROS so it really doesn't matter. About the only stations that wouldn't have licenses are Part 15s and pirates. So in most cases, to show producers, it's not really an issue.
No, there is no special consideration for fine arts.
Remember, I don't have to AGREE with the laws, but I must adhere to them while trying to change them.
Tim in Bovey
When it began, this thread was a Programming Survey, and discussion led a natural trail into the maze of copyright coverage for programs with distinction between On Air and On Line broadcasting. Further thoughts take bloom.
I think copyright payment agreements get into the hazey area of "listener numbers." True?
With Part 15 radio the magic of it is that we can't detect whether anyone is listening, except when we talk to them in person and they confess.
Webcasting seems more revealing since servers provide feedback to show the number of "connections" and their approximate location by IP address tracking.
But several things muck it up and it may be even worse than I suspect.
One experience relates to Shoutcast which once posted a notice banning stations from artificially "boosting" their listener numbers so they could claim to their sponsers a higher audience than they really had.
That reveals there are methods to generate "fake listener numbers" and I wonder...
Isn't it interesting that when subscribed to paid streaming services that there are suddenly plenty of listeners to go around? I've scrolled around on paid streaming directories and ALL the stations have enough listeners to make life worthwhile. That's funny. That doesn't happen to me on the free Icecast service. Where are all my listeners?
I suspect that if I signed on the dotted line and paid the way for a paid streaming service the listeners would show up all at the same time.
Think of it. With so many listeners the copyrighters could charge more royalty, so they too have an incentive to boost listener numbers with whatever the trick is to do that.
I guess all one would need to do is direct as many players toward a stream as possible, each "player" counting as a listener but muted and unheard.
Radio compared to streaming are two different beasts. Streaming tells you how many listeners at any given time and for how long. Easy to come up with a calculation for licensing. Yes, more listeners, or more specifically more listened to minutes, equals higher rates. In radio potential listeners and station revenue are the two main factors. A 1/10 watt station in a town of 600 people pays far less than a 5,000 watt station in a town of 2 million people. Yes, there are minimums, so even if you have 3 listeners and 0 revenue you still pay something.
Same when you license music for a public performance that involves music. Your license fee is based on number of seats and ticket price. Even if 8 peoople show up, if the venue has 500 seats you have to license for 500 seats. When your theatre group decides to put on "Hello Dolly" the rights to that script and it's music is based on these factors. Even if the show is presented free there's a minimum you pay, which is why shows like this typically have underwriters.
Different streaming services will generate different numbers of listeners. Icecast doesn't have, far as I know, a central home page or app where potential listeners can search for what they'd like to hear, and find it. Shoutcast, ILove Radio, etc do. I can type "Christmas" into shoutcast and be presented with a list of stations that play Christmas music. This is how listeners find them. Also gaining streaming listeners depends a lot on your own ability to promote and publicize your stream. There are many Icecast streamers with many thousands of listeners. And yes, as listenership goes up, so do their music licensing rates.
Tim in Bovey
In addition to copyrights (the owners of songs) there are also patents (those who hold claim to methods, i.e., "podcasting".
While browsing hobby broadcaster I discovered this revealing news link:
How many once vital radios stations now dribble their time away by running infommercials for vitamin supplements? It would appear that the only other source of guaranteed income is to revert to "all sports," which can't be all that lucrative given the over-supply of sports on radio.
Infommercials are long commercials disguised as programs, typically 30-minutes. They push a toll free "call now" phone number "have credit card handy."
Why not lay back and let the cash roll in?
At first infommercials were happening on AM stations, but recently I've started noticing them on the much coveted FM band.
I'm going to recommend that the ALPB declare the AM band blighted, with expectations of some blight on FM, although there's still a deperate scramble to get an FM channel by developers who can't read the wall (where the hand writing is).
One more wave of failure is pushing across both dials, a thing called "digital."
Yet this is not the most negative place in my narrative, it really means "all the best" for part 15 radio, as we grow into the cracks left open by dead corporate stations.
Hang in there!
Programming bottlenecks can be great adventures for the producer-engineer on duty here at the radio station.
Sunday nights are the biggest example of this here at International KDX Worldround Radio, where three key shows get released only minutes before air time, and are sometimes late in coming.
The posted schedule for KDX gets butchered when a later program arrives before the one scheduled right now.
Tonight is the worst case yet as high tension keeps me at the screen/keyboard with only minutes to go, hoping that a program comes on line.
What are your tense moments operating an actual radio station under Part 15?
ADVISORY - Moments ago I posted the previous post, be sure to check that out too. It's all good.