Copyright in the United States of America: Small Mechanical licenses
I'd like to conduct an unscientific survey as ask a question. Of those who create and distribute practice CDs, post practice audio files on their web sites, post audio files of performances on their web sites, and other similar technology uses, how many of you go to through the effort to obtain the copyright clearances for all these various uses.
I've been going through this for our group (The Phyllis Merritt Singers,http://www.merrittsingers.org) but my review of various web sites leads me to believe that these legalities are largely ignored throughout our community - particularly among small community choruses and schools.
I've corresponded directly with some and asked how they do it and most reply that they don't worry about and consider themselves too small for the publishers and copyright holders to come after.
I have to say that the response I get from most publishers when I approach them is typically that. They either say we're too small or they try to send me to the Harry Fox Agency where I have to purchase a minimum of 500 licenses to create a rehearsal CD project that only requires 60.
THE BELOW DOES NOT REPRESENT LEGAL ADVICE. IT IS ANECDOTAL INFORMATION BASED ON MY EXPERIENCES WITH THE PUBLISHERS AND U.S. COPYRIGHT OFFICE AND SHOULD NOT BE CONSTRUCTED AS REPRESENTING AN AUTHORITATIVE LEGAL PROCESS.
Thanks for the reference. My experiences with the publishers generally have fallen into 4 types of response when I've tried to email or call requesting mechanical licenses:
1. Your project is too small for us to worry about - too much record keeping for such a hassle.
2. We don't issue mechanical licenses directly - you have to go the Harry Fox Agency
3. We'll be glad to let you use the material free of charge. I will send you a letter or email confirming the permissions
4. We will grant you permission at the current statutory rate of $. 091 per song distributed. I'll send you the paperwork, sign and send back with the payment.
Responses 3 and 4 I can live with. I certainly don't mind paying the statutory rate to distribut 10 songs on 100 CDs. Comes out to about a buck per disk and my chorus members repay that througth the music packet fee we charge them.
It's responses 1 and 2 that drive me bonkers. While it's true a small chorus project will probably never get caught, our organization believes very strongly in complying with the requirements of the law. The off-hand dismissal in response 1 is useless if they won't provide you with written authorization to distribute the materials.
Response 2 is the kicker and by my research is actually a deceptive practice that misrepresents the copyright law. I have personally read the copyright law from top to bottom and also sent the U.S. Copyright Office a written inquiry to clarify this. By both my readings and the copyright office answer - response 2 is an illegitimate answer.
Here's why. According to Sec 115 of the copyright law, copyright holders (not their agents like Harry Fox) are REQUIRED to issue a mechanical license when presented with a wirtten request from a licensee seeking one (there are a few restirctions but the vast majority of requests wouldn't run up against one of them). That's why its called a compulsory license. Section 115 and the regulation that implements it, 37 CFR 218 give a detailed breakdown of exactly what the written request must contain and how it must be worded - included sending via registered or certified mail.
When a copyright holder receives one of these properly written compulsory license requests, they must accomodate it (provided none of the extremely narrow restrictions apply).
I specifially asked the U.S. Copyright Office if I could completely bypass Harry Fox, even if the publisher wanted me to go there, and send a request directly to the publisher, regardless of how many or how few licenses I needed. They responsed that yes, even if the publisher is represented by Harry Fox, you can send the request directly to them, even it its only for 1 copy, and they most respond and grant the license. The copyright law even says they are required to reply within 2 weeks of receving the request.
If you don't use the procedure specified in the law (say you email or telephone them), the publisher is free to ignore you or to try to send you through what ever other route they desire. But if they get a properly submitted NOTICE OF INTENTION TO OBTAIN A COMPULSORY LICENSE FOR MAKING AND DISTRIBUTING PHONORECORDS (that's what its called), they can't ignore it and they can't try to reroute you.
So I don't even mess with the phone calls or emails anymore. Half of them just try to blow you off so they don't have to mess with you. I just go ahead and send the written notice that the copyright law requires and then proceed with my project. When the publisher responds with instructions on where to send the royalty check, I send it in.
I am including below the response I received directly from the U.S. Copyright office. Sorry I don't have the text of my original question to them but it basically said that I didn't want to go to Harry Fox, even though the publsihers were trying to push me there, and asked if I could go straight to the publisher with a license request, even if the publisher insisted that go the HF route, and pay only the royalties on the number of CDs I actually issue, regardless of how few, even though HF wants me to license and pay for at least 500.
--------Copyright Office reply----------
For the purposes of the Compulsory License for Making and Distributing Phonorecords, you are correct in stating by serving notice directly on the copyright owner, whether they employ an agent or not, you are subject to royalties only on those copies that you actually distribute, regardless of their number and without respect to a minimum quantity. You may read the following in CFR 96.201.18.
4) For the purposes of this section, service of a Notice of Intention on a copyright owner may be accomplished by means of service of the Notice on either the copyright owner or an agent of the copyright owner with authority to receive the Notice. In the case where the work has more than one copyright owner, the service of the Notice on any one of the co-owners of the nondramatic musical work or upon an authorized agent of one of the co-owners identified in the Notice of Intention shall be sufficient with respect to all co-owners. Notwithstanding paragraph (a)(2) of this section, a single Notice may designate works not owned by the same copyright owner in the case where the Notice is served on a common agent of multiple copyright owners, and where each of the works designated in the Notice is owned by any of the copyright owners who have authorized that agent to receive Notices.
Specifically, you would can serve the notice directly on the copyright owner or the agent, if the agent has agreed to accept Notices on behalf of the copyright owner.
If you want to read it with your own two eyes, check out Sec 115(b) of USC 17 (U.S. Copyright Law) at http://www.copyright.gov/title17/92chap1.html and also the implemeting regulation, regulation 201.18 at http://www.copyright.gov/carp/. 201.18 tells you EXACTLY what the notice must say and how it must be delivered.
201.18 also lays out requirements for monthly and annual reports and royalty payments. But for a small project, they don't want to mess with that anymore than you do. So figure out what the costs would be based on the current statutory rates for the number and length of songs you're distributing and add the following to your notice:
"In lieu of the monthly and annual reporting and payment requirements specified in Sec 115 USC 17 and 37 CFR 201.18, we agree to submit a one time payment of $XXX.XX to distribute XXX recordings. Payment will be submitted upon execution of this agreement."
I discovered after many years in the Air Force that most bureaucrats rely on your ignorance of the rules to exercise power over you and get you to do what they want. So many years ago I started a practice of anytime I was confronted with a regulatory roadblock with some gatekeeper telling me, "well, by the book we can only do it this way", I either tell them to show me the book or I get the book and check it out for myself. Nine times out of ten I find I'm having smoke blown up my tail pipe in an effort to get me to go away. Above is a classic example.