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Can we sell our performance CDs?

Our community chorus  has always made recordings of our performances for our singers to purchase for their own use. What actions would we need to take in order to make these CDs available for our general audience to purchase? This would be a "break even" proposition - selling them for the same cost as what our group pays for them to be made.
Replies (21): Threaded | Chronological
on June 2, 2011 7:50am
Hi, Lori.
 
It doesn't matter whether you're making a profit, or even giving the CDs away; distribution is distribution, and therefore must be licensed.  (Incidentally, many ensembles are under the false impression that they can sell single copies to the singers without licensing, as you've indicated; also illegal.)
 
It's actually a very simple process, and has become even more so in the past few years.  The simple, but more expensive, route is to use Harry Fox's website: www.songfile.com.  They represent nearly every publisher, so it's truly one-stop shopping.  You add each "song" to your cart, put in the recording details, give them a credit card number, and it's done.  The fee charged is set by statute (currently 9.1 cents, per copy, per "song"), BUT HFA adds a $15 fee for each song, and that adds up very quickly.  Many (but not all) publishers are willing to issue small quantity licenses directly, if you just contact their copyright departments (in most cases, a department of one person).
 
 
on June 2, 2011 9:20am
Dear Tom,
 
I assume you are referring to music which is still under copyright.
 
There must be a ton of music from Palestrina and Bach, right upto the earlier 20th century works, which are out of copyright
despite any recent court ruling(s).
Why do those need licensing, if MY choir performs it, and everybody agrees to allow free or paid distribution?
 
The choir should even protect itself from being ripped off, by copyrighting (an easy process) that particular recording!
 
Narimam H. Wadia,
Paranjoti Academy Chorus of Bombay, India.
on June 2, 2011 9:22am
One minor correction to this: publishers are required by law to issue a mechanical license, even for a small quantity, if you serve the proper notice and pay the statutory fee. They don't need to be "willing." Songfile is easier, but if you're determined to avoid the per-song fee, you can serve notice to the publisher directly, and they must grant the license within two weeks.
 
Also, the 9.1c rate applies to works shorter than 5 minutes; longer works are on a per-minute basis (1.75c/minute). 
on June 2, 2011 11:05am
Nariman:  I assume that you know that copyright laws differ from one country to another, so you would have to learn about Indian copyright law and procedures.  Under U.S. law public domain music may indeed be recorded or used in any way without need for licensing.  I don't believe anyone was suggesting otherwise.  And under U.S. law your recording IS copyrighted as soon as it exists "in fixed form," although that was not true before about 1972.
 
All the best,
John
on June 2, 2011 10:42am
Yes, naturally music that is in the public domain does not need to be licensing.  I'd caution you, though, to be sure the edition you are using is in the public domain.  You're probably not singing off of manuscripts.
on June 2, 2011 10:49am
True, and thanks for clarifying that.  The licenses are compulsory, and cannot be denied.  As for convincing publishers to issue licenses directly, I concur that they are definitely supposed to do this.  I will add, though, as someone who has produced several hundred choral recordings in the past ten years, good luck!
on June 2, 2011 1:36pm
What Tom says is perfectly correct (except in the case of a FIRST recording, for which specific permission of the copyright owner is required and which does NOT come under the compulsory license provision).
 
But it is also common for a publisher to have a policy that requires you to work through the Harry Fox Agency to get the compulsory license, and I believe that many of them do to avoid the cost of setting up even a one-person Licensing Department.
 
And the setup fee from Harry Fox has come DOWN considerably.  Ten or so years ago it was the amount required to license 500 copies, which was considerably more than the current account fee.  At today's statutory fee that would be about $45.50 per song.  And since their only income is the fees which they have to remit to the copyright owners, it's hard to fault them for charging a fee for setting up an account for you.
 
All the best,
John
on June 3, 2011 6:14am
An exception to the mechanical licensing rule: in the US I believe that recordings made by performance groups in educational institutions are permitted to made one archival copy per student who performed. This is not true for organizations that are not affiliated with educational institutions, but it explains where the erroneous idea originated.

One more thing regarding non-educational groups: only ONE archival recording is permitted for each concert. If there is any chance that you may want to use that recording later on for commercial release, then it is prudent to make those arrangements in advance with the publisher. Some publishers of contemporary works (especially with orchestral components) state explicitly in their rental or permission-to-perform agreements that such licenses must be secured prior to the performance. I've come across this on multiple occasions for works not in the public domain.

Finally, be very careful if your recording includes hired instrumentalists or singers, especially union musicians. Technically, everyone who performs should be made aware that they are being recorded and how the recording is to be used. Musicians unions will have an additional fee component to consider for commercial recordings (sometimes this can be included as part of a collective bargaining agreement). It is wise to have everyone on your recording, including any volunteers, sign an agreement regarding the use of their audio or visual "image." Consulting with an entertainment attorney is always a good idea!

- Kathleen

on June 3, 2011 9:02am
I don't think I've seen actual legal language for an exception that allows for "one archival copy per student who performed" for educational institutions. I'm under the impression that "one archival copy" really means just one--not making copies for all the performers--although I think that a lot of college (and public school) music departments are operating under the concept that you mentioned. In our many copyright discussions here on ChoralNet, has anyone been able to point to documentation of such an exception?
on June 3, 2011 10:02am
Not the case, unfortunately, Kathleen.
 
The "Fair Use" guidelines released by the House of Representatives Copyright Subcommittee in 1975 (which have not yet been overwritten by subsequent legislation or case law) are very specific in this regard:
 
"A single copy of recordings of performances by students may be made for evaluation or rehearsal purposes and may be retained by the educational institution or individual teacher."
 
It seems pretty clear to me that this really does mean a single copy.  Visit the MENC copyright resource page.  There, you'll find a wealth of information, including the complete text of this document that I've just quoted.
 
Tom
on July 14, 2011 3:38pm
Do these guidelines for recording also apply to non profit organizations?
 
on July 14, 2011 6:36pm
Dianne:  YES, the recording guidelines do apply to everyone, school or community, profit or non-profit, professional or amateur.
 
Some of the exceptions, including the single archived copy exception, may in fact apply ONLY to educational institutions.  I'm not sure about that and would have to recheck the wording.
 
Non-profit is NEVER a valid exception to the provisions of copyright law, at least since January 1, 1978.  Prior to that some provisions applied only to "public performance for profit," the wording in the 1909 law, but that was the major loophole that the music publishers wanted removed in the 1976 revision, and they got what they wanted.  The educational and religious exceptions are only for performance, not for recording.
 
John
on July 15, 2011 6:30am
Lori (et al.),
 
The nonprofit chorus with which I sing has been producing albums (both live and studio recordings) about every year for 20+ years, and I want to reassure you that it is not nearly as difficult or complicated or expensive as it may seem at first!  I have read the previous responses, and there is a lot of good information there, so read it closely but don't be scared by the legal and financial minutiae. ☺
 
Some suggestions we have found helpful:
 
1. Hire a professional copyright researcher.  You send them the list of titles/composers/publishers and track lengths from your master and how many recordings you plan to make, and they do all the legwork, determine which works are protected by copyright and which are public domain, obtain the necessary licenses for you to sign, and send you the list of royalty amounts you owe to each copyright owner.  Then you simply sign and mail out the licenses and the royalty payments.
   This can save you a lot of time and hassle, especially if you do not feel totally prepared to tackle the entire project yourself.  A professional will already know the jargon, stay abreast of the latest legislation, and have lots of contacts in the industry.  Plus, it's nice to do business with a human being sometimes! ☺ (I can refer you to one we use, if you like.)
 
2. Keep a photocopy of all the royalty payment checks, in case your CD replication service requires you to provide proof of payments.
 
3. Be aware that union musicians' fees and royalties must often be contracted in advance and can become expensive, depending on the number of musicians and the length of their particular tracks, and this is on top of their usual performance costs.  So get a quote from them and decide whether you can afford it, or whether you should hire non-union musicians, who may not require recording royalties at all.
 
4. If you decide to go all out and make cover art, etc, you should probably consider obtaining a UPC number for your album and include the UPC symbol on the back cover.  This may save you a lot of headache later on, should you choose to consign your CDs, etc.
 
5. Shop around for a CD replication service before selecting one -- prices can vary considerably.  Also, many of them offer a variety of jackets/cases, which vary widely in price as well.
 
Best wishes,
Spence Whitehead
Promotions Manager, Atlanta Sacred Chorale
on July 15, 2011 8:49am
Tom,
 
Thank you for this response, as it is very helpful to me as a new Artistic Director of a community chorus.  My questions is, are the fees that are paid on songfile in addition to ASCAP or BMI fees?  We've paid ASCAP and BMI every year, and I was under the impression that those fees covered the copying and distribution of recordings.
 
 
on July 15, 2011 1:21pm
Lori:  Spence's advice is excellent, but I have to question his first point for several reasons.
 
1.  Whether or not a piece is copyrighted is obvious right on the music itself.  There should be a copyright notice giving the effective date of copyright.  It doesn't take an "expert" to read the notices!  And in the US anything copyrighted before 1923 is in the public domain and does not require licensing or payment of royalties, UNLESS you are using a copyrighted arrangement or edition.
 
2.  The Harry Fox Agency in NYC is already set up as a one-stop licensing venue for the industry.  They have a website with all the information you need, and probably downloadable forms as well.  Since the royalty payments are set in the law and not a matter of negotiation, it's pretty cut and dried.  The HFA does charge a low administrative fee to set up an account for you, but it has gone down substantially from what it used to be.  And everything is handled directly through HFA, not with each separate copyright owner, which could be massively difficult to deal with.
 
3.  I've actually never heard of a "professional copyright researcher," although I suppose there may be such people.
 
All the best,
John
on July 15, 2011 1:43pm
Karyn: I respond since others may also share your incorrect assumption.
 
US copyright is a bundle of several DIFFERENT rights, each treated differently under the law.  ASCAP and BMI license Public Performance, which is only ONE of those rights.  Recording is a DIFFERENT right, and is handled differently under the law.  ASCAP and BMI cannot license recordings.  Only the original copyright owner--or the Harry Fox Agency representing the owners--can do that, and yes, it is a separate license and a separate fee.
 
I recommend any of several very good brochures published for music educators, which explain the basics of copyright law quite clearly.  Some are available from the copyright office itself.
 
All the best,
John
on July 16, 2011 3:35am
Fyi, for those folks reading this thread on the north side of the 49th parallel, in Canada the mechanical rights (parallel to HFA in the US) is CMRRA (Canadian Musical Reproduction Rights Agencly Ltd.) http://www.cmrra.ca/default.htm. Similar to HFA, it's a one-stop agency.
 
Len
 
(Leonard Enns, Music Director
DaCapo Chamber Choir
Waterloo, Ontario)
 
on July 16, 2011 8:43am
One copy for archival purposes is just that-ONE COPY.  It is not to be copied from "sub rosa" and distributed to the performers, be they school-age or seniors.  Really, the cost of mechanical rights is not as high per copy as one might initially think.  Many producers do clearance for you as a part of their service, but always ask if that is true.  Going on Songfile is easy and straightforward, and if a title is not there, it occasionally has to be traced or you jave to write directly to the copyright holder.  I personally have done copyright research and clearance for an orchestra for quite a few years, and only a couple of times have there been issues.  I don't know why people try and circumvent this law in all kinds of creative ways, because the penalties for "getting caught" are considerable-and make no mistake-people get caught!  However, being the schoolteacher I am, I feel I do hold myself to a very high standard of compliance because I am the ethical example for all of the young people I teach.  GET YOURSELF EDUCATED IN THE LAW,PEOPLE!!  At this point, if you were to go to court on an infringement, you CANNOT PLEAD IGNORANCE OF THE LAW.  This is a fact.  The law has now been in effect for so long (written in 1976 and enacted in January of 1978) that the court has ruled you cannot enter "I didn't know the law" as a defense to any suit against  you.  It is now assumed that everyone knows this law.  So, if for some reason you really don't know the law, get going!
on July 16, 2011 8:27pm
Lori (et al.),
 
Continuing my previous post...
 
6.  Be aware that Harry Fox does not administer *all* copyrighted music in the U.S., though they probably administer the lion's share.  Of course, there is no reason you cannot limit your chorus to public domain or HFA-administered works, but to record anything else, you must either get the license yourself directly from the song's copyright owner or administrator, or with the assistance of a third party.  You can google many such businesses that provide this service, or I will be glad to refer you.
    To see whether HFA *may* cover a particular song, you can freely use their online database resource, "Songfile", but keep in mind the following notices from HFA's website, the last sentence of each, in particular:
  • Songfile [emph. theirs]: "Please note that data contained in HFA's song database has been provided to HFA by publishers, licensees and others. HFA DOES NOT WARRANT THE ACCURACY OR COMPLETENESS OF THIS DATA. In some cases, copyright ownership information shown for a song may not reflect actual copyright ownership of a song, or may no longer be current. Songs listed in HFA's database may not be fully represented, or represented at all, by HFA, and may not be licensable through HFA."
  • eMechanical:  "Use of eMechanical, part of HFA Online, is governed by HFA's Terms of Use. As more fully explained in the Terms of Use, data contained in the databases associated with HFA Online has been provided to HFA by its Publisher Principals, Licensees, and others. HFA makes no guarantees or representations whatsoever with respect to the accuracy or completeness of the data made available through HFA Online. In some cases, songs listed in HFA's song database may not be fully represented and/or licensable through HFA."
  • FAQ [emph. theirs]: "If HFA licenses part of the song, you can complete your licensing transaction through Songfile for the percentage of the song that HFA represents. To obtain a license for the remaining percentage, or for a song that is not represented by HFA for this format, you will need to contact the publisher directly. It is your responsibility to obtain licenses from each publisher that owns part of the song so that you are licensed for 100% of the song. If you are not licensed for 100% of the song, you could be liable for infringement."
    This means that if a song is not in their database, or if some publishers are not represented by HFA, then you must go elsewhere to license that song (or part of it).  For example, if you look up "Breath of Heaven (Mary's Song)" in Songfile (HFA Song Code B10683), you will see that one of the publishers is Bug Music, which is represented by HFA.  However, other publishers also own a percentage of the copyright but are not represented by HFA, and HFA does not list their names or their administrator.  All they display is "COPYRIGHT CONTROL (NON-HFA)."  When you click through to license the song, you find that 75% of the royalties are payable to HFA, but they do not tell you where to send the other 25%, or how to obtain a license for that portion.
    William Dawson's "Oh What A Beautiful City" is another example you can find listed in Songfile, but which you cannot license, or even find the owners/administrators, through HFA.  If you record one of these songs, or any other for that matter, you or your organization is responsible to identify all its copyright owners, procure all necessary licenses, and pay the royalties.  How you accomplish that is up to you, but you do have some options, which require varying amounts of your time and resources.
 
7.  Hopefully this is obvious, but if you pull a sheet of music out of your cabinets, blow the dust off it, and find no printed copyright notice, that does not give you carte blanche to perform or record it.  If your library is like ours, you may have lots of old sheet music for which the copyright information was either not printed, has expired, or has become obsolete due to copyright renewals, sales, or transfer of ownership.  The present-day legal status of a song's copyright really has little to do with whatever may or may not be printed on a particular sheet of music in your library.
 
I can only speak from my experience with the production and associated licenses for 10 CDs (with one more on the way--plus MP3s now available at iTunes, Amazon, and your favorite retailer! ☺) for a chorus that performs music spanning Renaissance to 21st-century, so of course other ensembles may have differing circumstances that make copyright issues even easier to handle!
 
All that said, I would reiterate that while the initial information-gathering process can present some challenges, the rest should be a piece of cake, so press on!
 
Spence Whitehead
Promotions Manager, Atlanta Sacred Chorale
on July 17, 2011 6:15am
Here's an excellent service that makes it very easy to do the licensing correctly for a fair price:
on July 17, 2011 10:10am
Lori:  Spence is once again on top of his information, although he might make it out to be more scary than it really is.  I will admit, however, that use of the Harry Fox Agency is more likely with established publishers than it probably is with self-publishing composers.  Like ASCAP, BMI, and all the other "official" royalty-collecting and licensing organizations, HFA is set up primarily to process the permissions for professionals in the business, not necessarily to make it easy for small or occasional producers.
 
One very small but important correction.  Spence wrote, "if you pull a sheet of music out of your cabinets, blow the dust off it, and find no printed copyright notice, that does not give you carte blanche to perform or record it."  Well, yes and no!  Prior to the revisions to the law that took effect in 1978, a copyright notice was an ABSOLUTE REQUIREMENT, and anything published in the US without that notice, in the form specified in the law, was automatically and irrevocably in the public domain.  In fact the Library of Congress has a list of such publications, which surprisingly includes the 1928 edition of the Oxford Book of Carols!
 
Since '78, the copyright notice has not been an absolute requirement, although failure to affix it will cost the owner certain legal rights, but any publisher or any independent self-publisher who does NOT include a copyright notice is being very foolish.
 
And the other side of the coin:  publishers have indeed been known to CLAIM copyright through a copyright notice, when they actually have no legal right to a copyright and in fact do not have one. 
 
All the best,
John
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