© C in a Circle - Exceptions To The Rule: When Unlicensed Uses of a Copyright Are Not Infringements
For various reasons, Congress has identified ten types of unlicensed uses that they chose to allow to be made without requiring the users to compensate the copyright owners.
By Gary Roth
As I’ve previously indicated, if a copyrighted song is used without permission (a license), it is considered an infringement, and the copyright owner is entitled to damages if his or her claims are proved in a lawsuit.
But for various reasons, Congress identified ten types of unlicensed uses that they chose to allow to be made without requiring the users to compensate the copyright owners. They all deal with the public performance or public display right that is granted to a copyright owner. Those that are performance-based are ones that the PROs cannot license, so members of ASCAP, BMI and SESAC will not receive royalties in those contexts.
Here is a summary of the eight exemptions that relate to music. Keep in mind that many of these are subject to past and future interpretation by the courts and many of the actual words used in the statute are defined specifically. I am paraphrasing for your information. Because they are a limitation on the exclusive rights of a copyright owner, these exemptions are rather specific in their requirements. The names of the exemptions are mine, not Congress’s.
The educational exemption: This exemption generally allows the performance or display of any work to be made in the course of face-to-face teaching in a formal or informal classroom of a non-profit educational institution. So if a teacher or student wants to play a song or show a film clip in that context, they can do so without having to get permission. However, if a video known to be a bootleg is shown, the exemption is lost and it is an infringement.
The educational exemption is limited to the performance and display rights. The exercise of the reproduction right, which needs to be licensed if a copy of the song or film clip is made (such as onto a computer hard drive), is not part of this exemption. But fair use principles may apply to that.
The closed-circuit exemption: This one is rather complex because it is in the nature of transmissions that they are open to an abuse of rights, so some additional protections were built in for the copyright owners. With one exception, the closed-circuit exemption covers the performance right in all non-dramatic literary or musical works and “reasonable and limited portions” of all other kinds of works, and the right to display a work comparable to what would be displayed in a live class.
This exemption can be used when a government or an accredited nonprofit educational institution transmits a work, if the use is made or overseen by an instructor as an integral part of a regular class session, if using the transmission is directly related to and of material assistance to the teaching content of the transmission, and if the transmission is made solely for and limited to students officially enrolled in the course or the officers or employees of the government as part of their official duties or employment. The transmitting body or institution also is required to institute copyright policies, provide informational materials that promote copyright law compliance and provide notice to students that the materials used in connection with the course may be subject to copyright protection. If the transmission is digital, technological measures must be implemented that reasonably prevent whoever gets it from retaining the work in accessible form for longer than the class session lasts and from making any unauthorized further dissemination. Also, the government or institution can’t engage in conduct that could reasonably be expected to interfere with any copyright owner’s controls against retention or unauthorized dissemination of the transmission.
As with the educational exemption, if the transmission is given by means of an illegal copy or phonorecord and the body or institution knew or had reason to believe it was illegal, the exemption is lost.
The religious exemption: This applies to the performance right in non-dramatic literary or musical works and to dramatic-musical works of a religious nature (such as “Jesus Christ Superstar”), as well as to the display rights in all works.
If the work is performed or displayed in the course of services at a place of worship or other religious assembly the unlicensed use is not an infringement. Thus, a church does not have to pay to perform copyrighted music during services. It does need to obtain a license to play the same music in the social hall when no services are in session.
The non-profit exemption: This exemption covers the performance of a non-dramatic literary or musical work if the performance is without any purpose of direct or indirect commercial advantage and without payment of any compensation to any performer, promoter or organizer, there is no direct or indirect admission charge and proceeds net of reasonable production costs are used exclusively for educational, religious or charitable purposes, and not for private financial gain. This is the exemption that a concert for charity would use, assuming all of the above requirements are met.
The exemption is lost if the performance is publicly transmitted or if the copyright owner objects to the performance in a signed writing of the proper kind at least a week in advance. That rule allows a copyright owner to pull his music from a charitable event that supports a cause that he or she does not support.
The transmission exemptions: There are two exemptions that I’ll call the transmission exemptions. One involves a single receiver and one involves more elaborate equipment used in small business places.
The first of the transmission exemptions covers the performance and display right in all works and allows a transmission to be heard in public on a single receiving apparatus of a kind commonly used in private homes. However, the exemption is lost if a direct charge is made to see or hear the transmission or the transmission is further transmitted to public. You can imagine how the definition of a single receiver “commonly found in private homes” has changed over the years. This exemption basically allows a commercial establishment to play one home-style radio or TV and not have to pay licensing fees for the music or videos that are heard by the employees and the patrons, which otherwise they do.
The other exemption involves multiple receivers used in small commercial establishments. This covers performance and display of non-dramatic musical works. The establishment is allowed to communicate a transmission or retransmission from a radio or TV station or (if audio-visual) by a cable or satellite carrier, but the place has to be of a certain size, which varies with whether or not it sells food and drink.
For a non-food/drink business, such as a clothing store, either the business must have less than 2000 gross square feet excluding parking, or if the business has more than that, it can be exempt if it uses a maximum of six audio speakers (of which no more than four can be in one room or adjoining outdoor space), or uses no more than four audio-visual devices (of which no more than one is in any room) and no device is bigger than 55 inches and the sound for the video is transmitted over no more than six speakers, again of which not more than four are in any room or adjoining outdoor space.
For a food/drink business, either the business must have less than 3750 gross square feet excluding parking, or if the business has more than that it uses a max of six speakers for audio with no more than four in one room or adjoining outdoor space, or no more than four audio-visual devices of which no more than one is in any room, no device is bigger than 55 inches and the sound is transmitted over no more than six speakers of which not more than four are in any room or adjoining outdoor space.
In both kinds of businesses, the exemption is lost if a direct charge is made to see or hear the transmission or retransmission, if the transmission or retransmission is further transmitted beyond the business area or the transmission or retransmission is not licensed by the copyright owner.
The county fair exemption: This covers performance of non-dramatic musical works made by a governmental body or non-profit agricultural or horticultural organization in the course of an annual agricultural or horticultural fair or exhibition conducted by the body or organization. Note that, while the body or organization running the fair is protected from being responsible for the infringement of a concessionaire, a business or a person at the fair, those persons and businesses themselves are not covered by this exemption.
The record store exemption: The record store exemption covers performances of non-dramatic musical works made by a vending establishment open to the public for the sole purpose of promoting retail sale of copies or recordings of the music or of the devices used to perform the music. So when you go into Best Buy to listen to new CDs or to shop for a stereo receiver, the store does not need to have a license to play the music coming from the listening kiosk or the stereo.
If there is any direct or indirect admission charge or the musical performances are transmitted beyond the immediate area where the sale is occurring or to outside of the establishment, the exemption will not apply.
The veterans and fraternal exemption: Finally, the veterans and fraternal exemption covers performances of non-dramatic literary and musical works used in the course of a social function organized and promoted by a nonprofit veterans or fraternal organization to which the general public isn’t invited (other than those people who the organization invites) if the proceeds net of reasonable production costs are used exclusively for charitable purposes and not for financial gain.
If this exemption is claimed by a college or university for its fraternities or sororities, it is not applicable if their social functions that use the music aren’t solely to raise funds for a specific charitable purpose.
Why are these particular kinds of performances and displays exempt? Most of them were the result of political compromises over the years to resolve matters that Congress felt needed to be addressed. Others were included to balance the rights of copyright owners and certain types of users that Congress felt obliged in the interest of public policy (or perhaps politics) to allow using copyrighted material without charge.
Now you know who can use your music under certain circumstances without having to pay for doing so. You may not agree with the exemptions, but since they are part of our law, you are obliged to accept them.
Posted Jun 14, 2006
Enjoyed this very much Gary! You really cleared a couple of things up that I had been wondering about. Thanks! ?Dothan Hill
This article answers a lot of questions, but it brings up one: “Who thinks of this stuff?” LOL. This is a great educational article. Thanks, I learned a lot.
If Churches do not have to pay royalties, why is there such orgainizations as CCLI?
I have a question dealing with copyright. If a song is perhaps a folksong or traditional song in a specific culture and seems to have no listed author, how would it affect someone say, doing a video with that song included. Would the same apply to a medley of traditional songs in a video?
Kevin: the religious exemption is limited to the rights and the situation I described. Other types of uses would need to be licensed.
Zoretta: If a traditional song is in the public domain (out of copyright), anyone can use it free of charge and without needing to seek permission.
CCLI covers the Mechanical use “display or written” of the music or works. IE: printing the words in the bulletin or displaying on screens.
A video recording business records a wedding and then adds the recorded music chosen by the couple for their wedding. Is that business required to pay royalties and if so how do they know where to pay?
The copyright laws have changed just like the music business has changed, and in a few years I believe that (Creative Common Licenses) will become more industry acceptable.
In fact, it may outweigh the popularity of the orginal copyright laws that once existed. It will be very interesting to see how these laws evolve in the next 10-15 years.
Elizabeth: Since the recording of music onto a video technically requires a synchronization (reproduction) license, the videographer should contact the publisher of each recorded song for a license. The publisher’s name and contact information can be found on the song title record on the BMI, ASCAP or SESAC repertoire website. Note that using an existing recording of the song put on the video (rather than having musicians perform it) would technically require a master use license from the record label as well, because the videographer is making a new copy of its sound recording. The circumstances of the recording may cause these licenses to be granted at little or no charge, however.
Zoretta: although there is no copyright protection for compositions in the public domain, it is possible to copyright arrangements of traditional material, both in the written and recorded formats. However, collecting on these arrangement copyrights is actually impossible, as the performance rights organizations will not collect, and legal fees exceed damages, rendering lawsuits untenable.
If a Record Company chooses to use my song in a Compilation CD,for instance, a Christmas CD, are they obligated to pay royalties for such use?
What about some web-sites that play a portion of a recording but do not sell it… do they have to get a license from the publisher and master owner?
Donald H. Sager: if the christmas song is a composition, recording, or unique (never done before you) arrangement of yours, you are entitled royalties.
dave white: hard to tell. you may have given a third party permission to do so.
many early webpromotion/download contracts gave away all artist rights in perpetuity for facilitating downloads for indie artists.ALWAYS READ AND PRINT OUT ALL AGREEMENTS- then at least you’ll know who may be to blame…
for those of you who may be wondering, I am a smalltime indie with minor chart success who had a song ripped off by Hyundai for use on 2 Tv commercials. Couldn’t get legal help as litigation costs exceeded damages.
Ironically the one legal firm willing to fight for me worked for Hyundai out of another branch office, so couldn’t work for me.
Irony #2: founder/majority stockholder of Hyundai now in Korean jail for other crimes.
anybody watching TV these days is likely to hear familiar bits of famous songs behind ads, rerecorded by studio players (like me!). In the case of copyrights owned by Yoko Ono & Michael Jackson,Rolling Stones, I believe they’re getting paid. Everybody else? probably not.
Good article. We need a refresher on this now & then.
After many years of playing in coverbands, I never really knew if such performances were infringments. Every once in a while you come across an ASCAP or BMI sticker on the front door of the bar/club, which obviously meant a club owner was subject to some kind of licensing fee. I always figured coverbands were technically in violation, but to pursue the issue, it would nearly bring down the industry. I concluded coverbands were considered “free promotion.” Am I right?
Jerry: it is the club/concert facility that is responsible for paying performance royalties on live performances of copyrighted material, as well as jukebox plays. ASCAP & BMI send people to sign up establishments and occasionally write playlists at performances.
They keep closer tabs on jukebox plays, which the vendors report.
Thanx for your response. Again, for the most part, I’ve concluded coverbands are an area where the industry basically looks the other way. In fact, bring the subject up with your average coverband, and you’ll immediately discover it’s pretty much a non-issue. There’s a bit of irony though. There are some songs that virtually every coverband plays. When you multiply the number of coverbands times performances of such a tune, we’re talking 1000s, if not millions of public performances. That’s one hell of a plug for the song.
Thanks for all the info. Have one question. How do religious organizations consider themselves non-profit? Excuse me! But I see how the ministers of the gospel and the music ministers, children’s ministers, etc. live. Quite nicely. If it is non-profit then how can a singing group record a cd, sell it to their people, and then pave the parking lot or build a new building without paying royalties. Seems like the worst rip-off of all. Waving a banner of Love, and Goodness and saying give me your money while you’re at it? Can’t stand em. Thanks for listening
Sherry Lee/ Songwriter Musician
What about a “parody” work of a song? Like Weird Al’s work. I’ve also heard of a band called Apologetix… they take copywritten works and change the lyrics… then they record the new songs and perform them… with no license, to my understanding. What is the law in that case?
Is a license from the publisher and master owner required when a web-site plays a portion (sample) of a song?
DO I HAVE ANY OBLIGATION TO THE PARAMOUNT GROUP? I SUBMITTED MY LYRICS , THEY SAID I WON THE DIRECTORS AWARD AND A CONTRACT ,THEN I DIDNT WIN THE GRAND PRIZE [AWW]SO NOW [BY LUCK ] THIS ARTIST THAT WANTS MY PATRIOTIC SONG LYRICS. I DIDNT SIGN ANY THING AND MY CONTRACT HAS WENT PAST THE DEADLINE,CAN THEY STILL KEEP MY SONG FOR LATER? AND WHAT HAPPENS IF THEY BOTH ARE RECORDING IT? DO THEY TRASH IT OR KEEP JUST IN CASE ??
Sonja, can you legally post the “contract” you signed with them on THE BUSINESS SIDE thread? You can leave out the names of any company, person, or song. It may be interesting to read, and clearly explain when any obligation you incurred ended or should end, or if it ends, and enables you to freely contract with others. Maybe you only signed agreeing to pay them for a demo, but they may have a clause where you assign them a share of publishing royalties for a period of time, which must be acknowledged in any other contract.
Along with perfomances of my own songs, I’d like to include other songwriters’ tunes that I like, using my arangements and edited versions of their lyrics, on my proposed CD. I don’t want writing credit for my contributions—what are my options?
Just a layman’s opinion:
To use other songwriters’ intellectual property you will need to license the works. This may be done through [url=http://www.hfa.com]http://www.hfa.com[/url] Harry Fox Agency, if the songs are registered there.
If these songwriters are friends of yours, and not famous songs, you can work out a contract with them.
If they are famous songs, by famous singers/bands, you will also need permission to change the words.
I recall reading that Dolly Parton, Emmy Lou Harris, Linda Ronstadt, wanted to use Neil Young’s song (I forget title) “Flying Mother Nature’s silver seed, To a new home in the sun,” and wanted to alter the lyric a bit. He at first refused, then relented.
Harry Fox Agency may answer your questions on their site. You may need to contract with the publishers. You need to take care of business on this because a copyright infringement charge can bring things to a screeching halt just when they’re getting good for you.
What I’m reading here is that bar jukeboxes are no longer paying royalties
when their download to establishments fees are on the rise and the service is steadily growing.Some type of action needs to be implemented to level the feilds a bit.
Performing Rights Organizations have five essential functions:
1. Gaining the assignments of rights from publishers.
2. Licensing outlets for performances (see #3)
3. Collection of data regarding performances:
This is the area I’ve not seen fully addressed here.
We assume that this simply means finding out which songs have been performed and how often they have been played.
However, the same person who has the job of going from venue to venue (I’m speaking here specifically about “bars” and “clubs” and “cabarets”) to enforce the rights of the members of the organization ALSO has the job of ASSESSING the venue.
This can include factors such as, how many square feet are in use by customers, the size of the dance floor (if there is one), legal room capacity, the normal habits of the owner in providing performances for his customers (is it a piano bar, a dance hall with a five-piece house band or a bar with two pool tables and a jukebox?), etc.
This is when the issue of “cover bands” is addressed.
Long before a band is ever hired, the PROs have already assessed the venue.
Armed with that data AND the assignment of rights of PRO members, the representative then tells the owner the amount of the licensing fee.
Suffice to say there are TWO basic types of data to be collected: data regarding the outlet of the music (venue, radio station) and data regarding actual performances.
If you are a band playing all cover tunes, the bar will pay the same fee even if you choose to play only your original material.
4. Interpreting the data:
If there is data to support that fact that Merle Haggard’s “Big City” is popular to a certain degree, then he is going to share in the fees which are charged to live venues playing predominately “Country” music.
You could have a “Rolling Stones TRIBUTE” band that plays “Satisfaction” three times a night, yet the payments to Mick Jagger and Keith Richards will be based on the PROs interpretation of the data and total fees available for distribution.
5. Distribution of fees:
As publishers and writers receive (or don’t receive) royalty payments, then the arguments begin.
Some payments do change after negotiation.
Regarding the question of churches using copyrighted songs in worship. I didn’t see an answer to the question why such organizations as CCLI exist if worship is an exemption. You also haven’t clarified what it means to “display” a work. Does that include printed song sheets? This is an important question, because some people write music specifically for worship, so are you saying they can never be paid for their work?
I believe the latest legal ruling on parody in songs and other art forms was handed down in 1994 in a case involving 2 Live Crew’s parody of Ray Orbison’s “Pretty Woman.” USE OF A COPYRIGHTED MELODY WITHOUT PERMISSION IS LEGAL IN A PARODY if the song is clearly is parodying the original. That is, the Supreme Court (decision written by Justice Souter,“Campbell v. Acuff-Rose Music”) said Two Live Crew was obviously spoofing the actual lyrical content of the song “Pretty Woman.” I recently did a send-up called “Brother, Can You Spare A Trillion?” (http://www.youtube.com/watch?v=GUj9Ycth6Q4) that parodies the original song by making the singer a newly impoverished hedge fund operator asking for a bailout instead of an unemployed “everyman” asking for a handout, as in the original.
Jim: The exemption I discussed only applies to performing or displaying a musical work. (Displaying would include reprinting or posting lyrics, for example). CCLI licenses such other copyright rights as reproduction,most specifically making copies of a composition for distribution to the congregation, which is a copyright violation if it’s done without a license. Composers who write music specifically for worship would receive their compensation from the reproduction fees or use of the music outside the worship service or on recordngs. For example, if the worship service was broadcast on radio or TV, the composers woould be entitled to be paid for airplay by their PRO. The exemption discussed covers the church, not others who might perform the music as well.
Jim: The exemption I discussed only applies to performing or displaying a musical work. (Displaying would include reprinting or posting lyrics, for example). CCLI licenses such other copyright rights as reproduction,most specifically making copies of a composition for distribution to the congregation, which is a copyright violation if it’s done without a license. Composers who write music specifically for worship would receive their compensation from the reproduction fees or use of the music outside the worship service or on recordngs. For example, if the worship service was broadcast on radio or TV, the composers would be entitled to be paid for airplay by their PRO. The exemption discussed covers the church, not others who might perform the music as well.
So what you’re saying is that if the choir and band in a church perform a song, and the congregation sings along, you only need to pay royalties if you hand out song sheets - but if you project the lyrics on a screen for everyone to sing along, you don’t need to pay - am I hearing that right?
CCLI also licenses overhead transparencies…so if the transparency used is licensed (Mercy Music was one of the first to “publish” transparencies) then all is fine.
However, if the worship director pens their own transparencies, this would violate “mechanical” copyright.
Performances “in worship services” are never a violation of copyright law, but the use of illegal copies IS a violation of the copyright holder’s mechanical rights.
It seems there is confusion here between “performance” royalties and “mechanical” royalties.
If a choir sings out of hymnals, there is no infringement, for the law covers their performance and the purchase of the hymnals covers the mechanical royalties.
If the church sings Amazing Grace without hymnal or overhead projection, again, no harm/no foul.
If a choir sings in a worship service using Xerox copies of a song, then they have NOT violated the performance copyright but they HAVE violated the mechanical copyright.
If the choir sings by memory AND their is an admission ticket sold to attend the performance, THEN their would be a violation of performance copyright.