If you talk to Steve, you know that there are rules, and they are to be followed. If you talk to Karen, you know one of those rules is that Christmas music is appropriate ONLY after Thanksgiving and before New Years. And if you talk to Bobby, you know that there are a lot of boring rules about copyright that we let him drone on about when he gets a bee in his bonnet you ask copyright questions. So, in light of all of these rules (including the effective DHMs), how in the heck are you supposed to get your holiday concert in between Thanksgiving and New Years? While your concert may look and sound different, we’re confident that you can still get one in while following all the rules.
Gatherings Rules. At the time of this blog post, the effective Directed Health Measures restrict gatherings to 25% of an indoor facility’s rated occupancy. Additionally, parties at a gathering may not exceed eight individuals, and each party must maintain six feet of distance from others. Depending on the size and occupancy of your facility, this could hamper your ability to accommodate your usual holiday concert crowd. You may also want to consult with your county attorney and local public health departments to ensure that they do not consider a holiday concert to fall under the more stringent rules related to “extracurricular youth activities,” such as the limitation on attendance to household members of participants.
Copyright Rules. If you have purchased sheet music, that typically comes with rights to perform the music. So in a typical scenario, purchasing the sheet music would also come with a license to perform it live. However, those licenses are typically limited to in-person performances that are not broadcast or recorded for redistribution. Usually, when you add in the ability to live stream or record and post the performance, you are then in need of additional licenses, such as mechanical, production, broadcast, digital performance, etc.
Similarly, the only recording typically allowed under a "standard" music purchase is for instructional and feedback purposes. The same is true under the fair use exceptions in the law, discussed below. Recording for critique is okay; recording to share with grandpas and grandmas typically is not--at least not without the proper license.
Fortunately, each music purchase you made should have come with an explanatory document or contract that will clarify the licenses you have and what you can do with them. To avoid any copyright issues, that means you'll have to check each one and, if it is anything but clear that you can record or otherwise broadcast your event with that music, you will have to contact the copyright holder to clarify your rights and possibly purchase additional licenses. If you can’t get the right licenses, you should forego that song. I’m sure music educators will be thrilled to change or scrap songs this late in the game.
Fair Use? I can hear you now: “But what about fair use?” Fair use is an exception that gets tossed around a lot by well-intentioned educators, but it is unfortunately much more limited than one would think. The typical fair use for music is the ability to record a practice or performance for purposes of critique or instruction, not for broadcast or dissemination.
A Holiday Miracle. In light of the pandemic, we are aware that many artists and companies are much more accommodating this year when it comes to granting licenses for things like virtual performances. In fact, several have provided blanket licenses to use, record, and broadcast their works during COVID. Others are willing to accommodate schools, even if they don’t have a global exception, or are willing to offer licenses for a reasonable fee.
Fortunately, some of our clients have been willing to share their experiences in attempting to obtain additional licenses from the companies that sold them music, and we hope that this will save some of you a little time and frustration. If you have any success stories or good details about working with other companies, please pass them along!
Plank Road Publishing, which is a K-8 Magazine, indicated that all music can be used during the Pandemic for free. We recommend calling them to confirm your use of their music at 1-800-437-0832.
C.L. Barnhouse Company in Oskaloosa, Iowa indicated that all music can be used during the Pandemic for free. We recommend calling them to confirm your use of their music at 641-673-4718.
Warner Brothers said the cost would be $350.00 for broadcast rights, but they said there is also not enough time to give permission for December 2020.
John Jacoson's Music Express Magazine by Hal Leonard offers additional licenses for $35.00 per song, so long as your copyright notice reflects that the works are owned by the Hal Leonard owned publisher. You can request permission at support@permissions.zendesk.com
Essential Music offers additional licenses for $20.00 per song. You can find request forms at essentialmusic.com
JW Pepper is unable to provide broadcasting rights, which can only be provided by the group that arranges their pieces.
Pinkzebra Publishing allows you to request permission to use their works at easysonglicensing.com.
Heritage Music Press, a division of The Lorenz Corporation, may be contacted at 1-800-444-1144.
Striv. The folks from Striv are excellent to work with, and they are right on top of issues like this. However, it is important to remember that contracts with Striv generally provide that it is the school, rather than Striv, that is ultimately responsible for copyright compliance. We don’t blame them for that, because ultimately the responsibility for copyright compliance is with the entity using the copyrighted work--which in this case is the school.
Other Platforms. If you are not using Striv but instead want to broadcast or post a performance using Facebook Live, YouTube, or another platform, keep in mind that even if you get the correct licenses from the copyright holders, you must still comply with that platform's terms of service/use. For example, here is Facebook's Copyright Q&A page, and here are their Terms of Service, which make clear Facebook can take down any content they want if they think you could be violating the law or subjecting them to exposure. So, even if you obtain the proper licenses, YouTube or Facebook may still take down your content unexpectedly.
We hope this information is helpful as you plan your winter concerts and hope that Santa puts you on the vaccination nice list for following all the rules. If you have any questions, or would like to share your experience in coordinating licenses for upcoming performances, please don’t hesitate to reach out to us at ksb@ksbschoollaw.com or 402-804-8000.