The text throughout this guide serves as a guideline and is not intended as legal advice. If you have a specific legal question pertaining to copyright law, you should contact the Office of Legal Affairs.
Copyright Law for Librarians and Educators
The Creative Artist's Legal Guide
Musicians, actors, directors, dancers, and other performing artists make their living from performing and recording works, and often these performances are made using works created by another author who is not taking part in the performance. While there are many instances where these works may be in the public domain, there are a great many works (or editions of works) that are copyrighted and must be used legally in order for the performance or recording to be made legally. If your performance or recording makes illegal use of someone's copyrighted work, you (the performer, theatre company, record company, etc.) may:
So, in order to avoid these consequences, it is important for performing arts students and professionals to be aware of the copyright issues regarding musical works and to know how to use music legally.
Copyright law can be extremely complicated and it can be daunting to know where to begin finding out what you need to know. This guide is will also lead you to reliable sources which you can use to find more information.
Another important consideration when it comes to copyright for performers is that there are often multiple copyrights to consider for every recording and/or performance. To make things worse, these separate copyrights are often owned by different copyright holders. Take the following example:
Let's start by talking about Music. This doesn't mean the information here is only relevant to students in the Hall-Musco Conservatory, it will outline important matters that are important for any dance or theatre performance that use music as well.
When it comes to copyright law, there are many ways in which music is treated differently from other copyrighted works.
First, it is important to know that copyright law makes an important distinction between music that is dramatic versus non-dramatic. Music that includes dramatic elements, including choreography or dialogue that advances a plot, involved different rights and necessitates different licenses. The Copyright Act does not explicitly define what constitutes a “dramatic work,” but according The American Society of Performers, Composers, Authors, and Publishers (ASCAP), an organization that provides licenses exclusively for non-dramatic works, “the line between dramatic and non dramatic… depends on the facts,” and “a dramatic performance usually involves using the work to tell a story or as part of a story or plot.”[2]
As mentioned in the introduction, another way in which music has special copyright considerations is in the compications of sound recordings. A musical sound recording (e.g., an album or a recorded track) always contain at least two copyrightable works: 1.) the musical work (e.g. a song and its lyrics, a musical score) and 2.) the sound recording itself (the sounds recorded, mixed, and stored). The copyright on these works is often held by separate owners, with the composer and lyricist owning copyright on the work and the record company, recording engineer, and/or producer owning copyright on the recording.
Perhaps the most important consideration for dancers creating new choreographic works is to remember that copyright can only be granted once a work has been “fixed in any tangible medium of expression.” This means that if someone steals your choreography before you ever recorded it in some way, you have no claim to authorship and cannot claim ownership of the copyright.
Remember that a work—that is the story, the plot, the dialogue, etc.—can be copyrighted, but some individual elements cannot. For instance, you cannot copyright a title, names, or characters because they are not works themselves. You may be able, however, to trademark some of those elements (but trademark law is separate and distinct from copyright law).
As attorney Gordon Firemark has said, “Copyright protection for elements beyond the script and music of a theatrical show is an unsettled and ambiguous area of law.”[3] Stage directions, for example, may not be copyrightable, and often were created under "work made for hire" agreements, which means that the stage director's contract might preclude owning copyright over his/her work. (To learn more,read Firemark, 2010).[4]
[1] Brandon Butler and Peter Jaszi, “Fair Use and Sound Recordings: Lessons from Community Practice,” in ARSC Guide to Audio Preservation (Association for Recorded Sound Collections, Council on Library and Information Resources, and National Recording Preservation Board of the Library of Congress, 2015), 196.
[2] “Common Music Licensing Terms,”ASCAP The American Society of Composers, Authors, and Publishers, Accessed August 2,2014, http://www.ascap.com/licensing/termsdefined.aspx.
[3] Gordon Firemark, “‘Urinetown’ Creators Get Pissy about Midwest Productions,” Entertainment Law Offices of Gordon P. Firemark, accessed August 30, 2015, http://firemark.com/2006/12/05/urinetown-creators-get-pissy-about-midwest-productions/.
[4] “Should There Be a ‘Director’s Copyright’ in Stage Directions? (Reader Survey),” Entertainment Law Offices of Gordon P. Firemark, accessed August 30, 2015, http://firemark.com/2010/06/24/should-there-be-directors-copyright-stage-directions-reader-survey/.
Section 1101 or the Copyright Act makes it illegal for someone to record your performance without your permission.
From Copyright.gov:
§1101 . Unauthorized fixation and trafficking in sound recordings and music videos
(a) Unauthorized Acts. - Anyone who, without the consent of the performer or performers involved —
(1) fixes the sounds or sounds and images of a live musical performance in a copy or phonorecord, or reproduces copies or phonorecords of such a performance from an unauthorized fixation,
(2) transmits or otherwise communicates to the public the sounds or sounds and images of a live musical performance, or
(3) distributes or offers to distribute, sells or offers to sell, rents or offers to rent, or traffics in any copy or phonorecord fixed as described in paragraph (1), regardless of whether the fixations occurred in the United States, shall be subject to the remedies provided in sections 502 through 505, to the same extent as an infringer of copyright.[1]
[1] U.S. Copyright Act, 17 U.S.C. §1101.
Though copyright owners have the exclusive right to use their works for any of the purposes covered under Section 106, there are certain exceptions to their exclusive rights. For students and educators, the most important of these exceptions are the rights to display and perform works for face-to-face teaching—as defined in the Copyright Act, Section 110(1)—and uses that fall under fair use. For any other use of a copyrighted work, a license must be obtained in order to use the work legally.
One of the most powerful exceptions to copyright infringement is provided by Section 110 of the Copyright Act. This provision states that when instructors or teachers conduct face-to-face teaching they are not infringing upon copyright when they perform or display copyrighted works. There is no limitation on the types of works covered by this exception, so activities such as reading a copyrighted text, performing a dramatic work, performing a musical work, or projecting a film would all be included as permissible in a classroom.[1] There are a few important notes to this exception:
For all other types of use that do not fall under fair use or an exception, you will need permission from the copyright holder in order to make legal use of a work. This means you will enter into a license agreement.
Licensing can also serve to limit the uses of a work. By signing a license you might actually sign away our rights that would otherwise be allowed by fair use or the face-to-face teaching exception. The most common scenario is when you download music legally, e.g., from iTunes, and you have agreed to their end-user license agreement. This agreement (in the small print that you probably never read!) effectively limits your use of the downloaded file to your personal use only.
Typically, a license will be required in most cases when music is performed as a commercial endeavor using a work that is under copyright. When it comes to performing a work publicly, the responsibility for obtaining the license falls on the venue. According to ASCAP, business owners, not performers, must ultimately must secure the license to have the work performed publicly:
Some people mistakenly assume that musicians and entertainers must obtain licenses to perform copyrighted music or that businesses where music is performed can shift their responsibility to musicians or entertainers. The law says all who participate in, or are responsible for, performances of music are legally responsible. Since it is the business owner who obtains the ultimate benefit from the performance, it is the business owner who obtains the license. Music license fees are one of the many costs of doing business. [Emphasis added.][4]
Any venue that regularly hosts music performances or publicly plays musical recordings should have blanket licenses with the three primary Performance Rights Organizations (PROs): ASCAP, BMI, and SESAC. A “blanket license,” according to SESAC, “authorizes you to publically perform any and all of the songs in the vast [PRO] repertory as often as you like, without having to worry about obtaining permission for each individual song performed."[5]
There may be some cases in which a performer will need to secure a license for a musical performance. Since the right to perform a work publicly is an exclusive right of the copyright owner, a public performance in a non-traditional venue that does not have blanket licenses may require a license to be granted through the publisher of the work. An exception to this is when the performance is “a nondramatic literary or musical work otherwise than in a transmission to the public, without any purpose of direct or indirect commercial advantage and without payment of any fee or other compensation for the performance to any of its performers, promoters, or organizers."[6] This means that a benefit concert can be held without licensing the works performed and the use may not be an infringement.
Perhaps the most common scenario when a musical performer must obtain a license is to make a recording. If a performer records a work that s/he wrote, or if the work is in the public domain (with some exceptions, as discussed previously), then no license is needed. Otherwise, in order to record a musical work, a mechanical license must be secured to record and distribute the recording. Because the copyright owner has the exclusive right to make and distribute copies of a musical work, a mechanical license is required to record and distribute recordings regardless of whether or not the copies will be made freely available. In the U.S. the primary entity for granting mechanical licenses is the Harry Fox Agency (HFA). HFA distributes royalties to copyright holders, and offers licensing for distributing both physical and digital copies.[7]
An important note about licenses is that in some cases the copyright owner is under no compulsion to grant the license to the work for performance or recording. Specifically, the copyright owner has the right to control the first publication of his/her work. After the first publication, however, the right to record and distribute a work is compulsory according to Section 115 of the Copyright Act. This means that a performer cannot be denied a license to record the work that has already been published as a sound recording.
[1] “17 U.S. Code § 110 - Limitations on Exclusive Rights: Exemption of Certain Performances and Displays | US Law | LII / Legal Information Institute.”
[2] Kenneth D. Crews, Copyright Law for Librarians and Educators: Creative Strategies and Practical Solutions, 3rd ed (Chicago: American Library Association, 2012).
[3] “17 U.S. Code § 110 - Limitations on Exclusive Rights: Exemption of Certain Performances and Displays | US Law | LII / Legal Information Institute.”
[4] “Frequently Asked Questions (General),” ASCAP The American Society of Composers, Authors, and Publishers, Accessed August 2,2014, http://www.ascap.com/licensing/licensingfaq.aspx#general.
[5] “Frequently Asked Questions: General Licensing,” SESAC, Accessed August 2, 2014, http://www.sesac.com/Licensing/FAQsGeneral.aspx.
[6] U.S. Copyright Act, 17 U.S.C. §110(4).
[7] HFA, Accessed August 2, 2014, http://www.harryfox.com/public/
There are several kinds of content that are free and legal to use. Some allow unrestricted on use (e.g. Publc Domain, Open Access), and others may have stipulations about free use (some Creative Commons). You can also view the next tab, "Find Images, Music, & Video", to find examples of free and legal media to use.
The term "public domain" describes all of the works that are not protected by copyright. These works are free for anyone to use without permission or fees. The rights that would otherwise be exclusive to copyright holder—to make copies or recordings, to create derivative works, to distribute copies, to perform publicly, to display publicly, or to digitally transmit recordings—are now the rights available to anyone.
Note: Even if a work is in the public domain, you must cite your sources and/or give credit to the author to avoid plagiarism.
Works can be in the public domain for several reasons. Public domain works include:
Open access (OA) research is information that has been made publicly available without cost to the consumer.
Many funding agencies now have open access mandates that require the researchers they fund to deposit their peer-reviewed work in a freely accessible repository within a specified time after publication.
For more information about Open Access, see this guide.
From http://creativecommons.org/about :
"What is Creative Commons?
Creative Commons is a nonprofit organization that enables the sharing and use of creativity and knowledge through free legal tools."
Creative Commons licenses make it easy to find works that can be accessed and shared much more easily than under the standard "all rights reserved."
An important note is that "Creative Commons licenses are not an alternative to copyright. They work alongside copyright and enable you to modify your copyright terms to best suit your needs."
So how does that apply to you?
"If you’re looking for content that you can freely and legally use, there is a giant pool of CC-licensed creativity available to you. There are hundreds of millions of works — from songs and videos to scientific and academic material — available to the public for free and legal use under the terms of our copyright licenses, with more being contributed every day."
Watch this video on the types of Creative Commons licensing on CreativeCommons.org
[1] Crews, Copyright Law for Librarians and Educators. 19
You can find many more links to free sheet music on the "Find Music Scores" page of the Music guide:
Licensing Music for Performance and Recording
Performing Rights Organizations license works for public performances and distribute royalties. The three primary organizations are:
Mechanical licenses to record copyrighted works are negotiated through Harry Fox Agency.
See Harry Fox Agency Royalty Rate Calculator to estimate mechanical royalty rates for physical copies and permanent digital downloads.
See Harry Fox Agency's Digital Licenses to license streams and downloads.
Licensing Printed Music for Other Uses
For permission to:
a) reproduce and distribute out-of-print sheet music
b) create an arrangement (derivative work) of a copyrighted work
c) reprint a musical excerpt of a copyrighted work in a publication
d) include music as part of a media production, etc.,*
rights must be negotiated with the copyright holder of the original work. NOTE these uses may all fall under Fair Use, which would not require licenses.
See sample agreements here: