Recorded orchestra performance copyright

Copyright matters affecting music and musicians.
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WYO
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Recorded orchestra performance copyright

Post by WYO » Mon Jan 31, 2011 6:37 pm

I assist with a Youth Orchestra and offered to record a recent concert. I understand that the orchestra purchase the sheet music with rights for public performance, but the legal position for recording and then producing CD's of the performance is unclear.

The CD's are available to friends and families of the performers, priced to cover production costs and a small profit to support the orchestra (a registered charity).

We consider that although the original compositions may be out of copyright, the arrangement we perform will be under copyright to the arranger.

We'd like to record future concerts, but want to respect copyright. Any advice would be welcome.

Thanks

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AndyJ
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Post by AndyJ » Mon Jan 31, 2011 8:44 pm

Hi WYO,
This can seem quite complicated but if you look at each step it gets easier to understand. If the orchestra have bought the sheet music and that music licences them to perform it in public (as is usually the case) then that is fine and effectively ends the composer's involvement. Assuming he is still alive he gets the royalties from the sale of the sheet music. If he's dead and the music is still in copyright, his estate gets the royalties.
Next comes the performance. Each member of the orchestra and the conductor have a right in their performance which permits them to allow or deny the recording of the performance and to have a say in the exploitation of any recording. From what you have said it appears that all the orchestra members have a vested interest in having the CDs go on sale, so that should not be a problem. However, for safety's sake it might be worth making sure they understand that they have this right and get their agreement. This can be verbal. In a situation like this, were there to be a dispute later, I think there is a fairly clear implied permission, but it is worth just making that 100% clear, especially if there are quite a few young people in the orchestra, who might not understand their rights.
So you make the recording with permission. You are now the producer of the recording and you have copyright in that recording (which incidently lasts for 50 years from the date of the performance). You can therefore produce CDs and sell them because what you are dealing in is just the recording, which is itself based on a performance which the preformers have granted you the right to record. So on the CD you should put your copyright notice and the date, and include a statement that all rights are reserved. Obviously you will also include the name of the orchestra, etc and this addresses one of the performers' other rights, namely to be credited as the performers of the work.
The copyright notice is there to hopefully prevent the next possible link in the chain: that is someone either pirating your CD, or putting it on YouTube or broadcasting it via radio without your permission. These would be infringements of the copyright in the recording.
Since this is likely to be a relatively small scale exercise it is not worth you registering with one of the copyright collection societies (such as PPL or PRS) because they take a percentage of the licence fees which they would gather on your behalf to cover their own administrative costs. By not involving them, all the profits can return to the orchestra.
One final point concerns music which is out of copyright. That is to say the composer died more than 70 years ago. If you are sure that this is the case, then you do not need to pay any licence to perform the music, and normally an arranger is not entitled to copyright as his work is not considered 'original' - he's a bit like an editor who tidies up an author's work before it is puiblished. However be careful on this point because in a court decision in 2005 (Hyperion Records Ltd v Sawkins [2005] EWCA Civ 565) a musicologist who did a great deal of research in piecing together some 17th Century music from various sources and adding modern notation and a new bass line was deemed to have the copyright in his work, such was the extra and original effort he put in. If in doubt, since the performance licence is likely to be included in the sheet music cost, purchase the music in the normal way and you will have no problems.
Good luck with your project.
Advice or comment provided here is not and does not purport to be legal advice as defined by s.12 of Legal Services Act 2007

WYO
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Post by WYO » Tue Feb 01, 2011 1:17 pm

Thanks AndyJ for a comprehensive reply.

I had continued to research the issue following my post, and thought I had discovered the answer, however this contradicts your advice.

On the PRSforMusic website, there is a licence described which seems to fit our situation - that is the Limited Manufacture Licence.

The intention of this however may be to distribute royalties to the performers, rather than protect the interests of the composer/publisher. In our case the performers benefit directly from sales revenue as it helps to fund the orchestra.

To illustrate the scale of this project, the orchestra has slightly over 100 members, and we would expect to sell 50-75 CD's per concert, of which there are three per year. The trial recording of the last concert edited down to 78 minutes which just fitted on a single CD. The orchestra played both classical and modern music.

I will ensure that all of the players/parents are aware that the performance will be recorded and consider the need to obtain written permission.

Thanks

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Post by AndyJ » Tue Feb 01, 2011 4:09 pm

Hi WYO,
Yes if you do not already have a licence to perform the music in public (I understood from your first post that you had) then the Limited Manufacture (LM) licence is what you need. However, if you are recording music which is out of copyright, then you do not need a licence for that. But if a CD contains both in-copyright and out-of-copyright music, then the licence is still required.
As you are probably aware the way PRS (and the other collecting societies) operate is to have standard licences, which don't always cover every permutation. As you indicate, part* of the licence fee which you pay for an LM licence will come back to the orchestra members as a performance fee. If you are handling the sales of all your CDs in-house, there is very little chance of receiving any royalties from any other third party which has a PRS licence. For instance you might send a free copy of one of your CDs to the BBC record library, and that might result in it getting played on air at some stage. If that happens then you should receive a royalty payment for the air-play.
If you go down this route, you only need the MCPS part of the LM licence. The PPL bit is not necessary as you own the rights in your own performance and recording.

There's quite a useful gude to how music licensing works here:
http://www.bemuso.com/musicbiz/musicroy ... croyalties

*This will be a very small proportion of the overall fee.
Advice or comment provided here is not and does not purport to be legal advice as defined by s.12 of Legal Services Act 2007

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