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Topic: Copyrighted Music - Fair Use?
Message: Posted by: MagiCat (Mar 27, 2006 01:36PM)
Good day,

I have a general question about using music during shows, as I'm sure many of you do. My day job involves photography, so I know about paying royalties for photographs vs. royalty-free, etc.

I don't know much about music though. When is it considered "illegal" to use copyrighted music in your shows? For instance, if you do a show and don't charge admission, is it sill illegal to use popular music?

I can see it being illegal to use music in a money-making environment... but what if its a small show that doesn't charge any admission at all?

Thanks!
Message: Posted by: Michael Messing (Mar 27, 2006 02:34PM)
Here's an earlier discussion on the topic: http://www.themagiccafe.com/forums/viewtopic.php?topic=6304&forum=11

There are others with similar information.

Michael
Message: Posted by: RobertBloor (Mar 27, 2006 03:13PM)
MagiCat,

Google Campbell vs. Acoff-Rose

That was the Supreme Court case which established Fair Use.

As for doing it in a "free" environment. Here's what I've done in the past...Call up the record company and tell them what show you're doing. ASK if it's okay for you to play that song in the background (or a portion of that song) for that piece.

I've never known a record company to not grant permission.

As you say...for future reference...charging admission changes things a bit.

Robert
Message: Posted by: Dan McLean Jr aka, Magic Roadie (Mar 27, 2006 03:15PM)
MagiCat,
Copyright laws protect all recorded music, and the use of copyrighted music is subject to permission from the copyright owners.

For the in's-and-out's of copyright law, donít rely upon hearsay, or on any exceptions or work-arounds you read about in online forums: Check out http://www.cmrra.com, http://www.socan.com, http://www.harryfox.com, http://www.ascap.com, or http://www.bmi.com, or the performing right organization in your country.

If that seems vague, please re-read the first sentence, becuse it's very specific. Your playing it in your car is covered by copyright law, as is any public performance.

Good luck in your research & endeavours!
Dan.
Message: Posted by: John Bowlin (Mar 28, 2006 04:20AM)
So...if you are playing it before your actual performance...is it legal??
??
Message: Posted by: TheAmbitiousCard (Mar 28, 2006 04:44AM)
What if you are doing a paid show with several "free" parts in your act.
The parts that have music.

or you could be paid to wear a certain pair of shoes but your act is free?

just kidding of course...
Message: Posted by: silverking (Mar 28, 2006 10:20AM)
Playing copyrighted music before your show during your show or after your show will open you up to potential legal action whether you charge money or not.

It may sound heavy-handed, but it's not your music, it belongs to somebody else, you've bought the right to play it for yourself and your friends in private.

ASCAP, BMI, and SOCAN are all bodies assigned by law to collect royalties from pretty much any public use of the music of their members.

Most all popular (and unpopular) artists in North America are members of one of the above orginizations.

I'm an anti-piracy advocate in music, but the record companies are such idiots that I'm starting to question my own opinion.
For now, it's the artists I'm supporting by not ripping off their music, and by paying for its use when I use it.
Message: Posted by: BryanDreyfus (Mar 30, 2006 12:18AM)
To save the problems I can offer this....

I have a large collection of "Smartsounds" in many themes.

If you could record your trick as you intend to perform it with no music I could add musical styles that you can rehearse to after you get your video back.

The musicis royalty free and my efforts are "by donation". If you like it pay something for it.

Bryan

ps. if you don't know about SmartSound music then see http://www.smartsound.com and read up on it.
Message: Posted by: DavidCaserta (Apr 6, 2006 08:13AM)
Also you can put in your rider that the venue gets the appropriate licences from the music industry to cover your show.
Message: Posted by: Decomposed (Apr 11, 2006 06:32AM)
Mix up your music using one of many programs. Add some different things all mixed together. Anything that is open to the public can be considered off limits for using other's music.
Message: Posted by: Dan McLean Jr aka, Magic Roadie (Apr 11, 2006 08:05AM)
[quote]
On 2006-04-11 07:32, Candini wrote:
Mix up your music using one of many programs. Add some different things all mixed together. Anything that is open to the public can be considered off limits for using other's music.
[/quote]
Can you make specifically say what you mean, candini? What do you man by [i]"your music"[/i], and by [i]"Anything that is open to the public can be considered off limits for using other's music"[/i]? I [b]think[/b] I disagree with you, but I certainly don't want to put words in your mouth by interpretting what you've said.
Thanks!
Dan.
Message: Posted by: Bill Nuvo (Apr 11, 2006 09:41AM)
There are many music programs out there that are cheap (under $50.00) that allow you to create music using royalty free samples. You don't have to be a musician to get the hang of it. They are very easy to use.

(and I also create music for others, royalty free. One song from my stage show (which is not available) is on the home page of my website http://www.nuvoentertainment.com ...just give it about 5 seconds to start. It is a live version.
Message: Posted by: Dan McLean Jr aka, Magic Roadie (Apr 11, 2006 10:07AM)
[quote]
On 2006-04-11 10:41, mrbilldentertainer wrote:
There are many music programs out there that are cheap (under $50.00) that allow you to create music using royalty free samples. You don't have to be a musician to get the hang of it. They are very easy to use.[/quote]
Hi, Mr Bill!
I certainly am a fan of creating your own music using royalty free samples, because it's legal, it's cheap, and it's unique! Even if you don't have the skill/instinct, I think [b]every[/b] entertainer must know a budding musician or hobyyist who'd be happy to create some good sounding stuff for free (just for fun), or real cheap. The person doesn't even need to be a musician, because when some folks try using such a "loop-based" program, they just find they kinda have a knack for it!
Message: Posted by: Decomposed (Apr 11, 2006 01:22PM)
Dan,

What I mean is working at malls, the street etc. Its open to the public and one could get into trouble using copyrighted music. Private venues (inside one's home) on private property from what I understand, is not a legal issue. Also, from what I have read, churches and schools are also exempt. I know many teachers who use pop music in their classrooms. The teachers are being paid to teach and using the music etc etc. I know their are many threads on this here, I just see a new thread and can't resist sometimes.

Regards,

Candini
Message: Posted by: Dan McLean Jr aka, Magic Roadie (Apr 11, 2006 03:45PM)
I started typing a bunch of stuff about "fair use" of copyrighted music in schools, churches, "private venues", "one's home", and "private property", but ...

Hearsay is a very bad way to get legal advice. Don't take the word of anyone here or on any other forum about copyright law: Not from me, or from anyone else.

Ask publishing rights oraganizations, like http://www.cmrra.com, http://www.socan.com, http://www.harryfox.com, http://www.ascap.com, http://www.bmi.com, or the performing right organization in your country. They'll be quite happy to give you the info you need.
Message: Posted by: BryanDreyfus (Apr 11, 2006 07:25PM)
That's is why with my buying the rights to the files I bought I can pass the royalty free onto others. This fact has been checked and rechecked with SmartSounds" themselves. I didn't want to take a chance on it.


I can even offer a certificate in case a venue has issues.

Bryan


I have 30 cd's of different styles and all of it royalty free.
Message: Posted by: Dan McLean Jr aka, Magic Roadie (Apr 11, 2006 08:54PM)
Yeah, SmartSound allows you to sell, or give away, music that uses their sounds. Same goes for Apple's "GarageBand" and numerous other "loop-based" systems. If you've paid for the app & sounds, then you can sell the songs you create that use the sounds.
Message: Posted by: Decomposed (Apr 15, 2006 02:14AM)
Yeah just don't use any pop artist music at any event and you are safe. Just royalty free only. Too much red tape getting permission, and forget getting email responses.....
Message: Posted by: Dan McLean Jr aka, Magic Roadie (Apr 15, 2006 08:12AM)
[quote]
On 2006-04-15 03:14, Candini wrote:
Yeah just don't use any pop artist music at any event and you are safe. Just royalty free only. Too much red tape getting permission, and forget getting email responses.....
[/quote]
It's not just pop music artists. Also remember that "royalty free" music is only "royalty free" once you've paid the copyright owner's licencing fee! In the case
Message: Posted by: Decomposed (Apr 16, 2006 01:31AM)
Yeah not worth going to jail over any of this. Probably a very very small percentage of magicians would take a chance since the chance of getting caught is rising.

Wouldn't want to be a Dee Jay.
Message: Posted by: Bill Nuvo (Apr 16, 2006 10:03AM)
I am a DJ. So are a few other magicians on this forum. How many are legit, I don't know. All I know is that I pay out about $1500.00 a year for the right to play the music. Really not that much when you factor in that is paid for only after a couple of gigs.

DJ's are constantly being checked. With downloading creating so many instant DJs, they (socan) have been clamping down. I know of one DJ who got a $10,000 fine.
Message: Posted by: BondJames628 (Apr 16, 2006 12:51PM)
So, what about http://www.freeplaymusic.com ? I really don't understand their policy. Could you use these songs legally? Thanks.
Message: Posted by: Bill Nuvo (Apr 16, 2006 01:29PM)
Read the terms of use and licensing. It really depends on what you are using it for. Their is a licensing fee, so you are paying for the use of it so you would have legal use of it according to their terms of use. Need any clarification in "plain english", I would advise contacting them. They can tell you exactly what they mean, since they wrote the terms.
Message: Posted by: Decomposed (Apr 17, 2006 12:00AM)
Risky if you don't hear from them either. Sometimes its difficult to get a straight answer unless you send a formal letter.

Hire some local talent to make you some music is the way to go. $1500 a year is a little over my head, I'd do without the music. Its important but I could get by without it.

I can only imagine how many songs a dee jay goes through in a night. If I ever went up and asked one if he had a license, he would think I was doing a check so I would never really get a straight answer either. Most events I work at aren't open to the public which I guess opens up a whole new can of worms.
Message: Posted by: tophatter (Apr 17, 2006 01:24AM)
Mr. Billdentertainer if your paying 1500.00 to play the right music you must have a really good Job , or a bunch of magic gigs. Care to throw a few my way LOl !!
Tops
Message: Posted by: Decomposed (Apr 17, 2006 01:32AM)
We have sooo many deejays here where I live. They have signs everywhere. I would be willing to bet about 1 percent (if that) have a license. Asking one at a party for his license, I would ensure first he wasn't bigger then me and also how sober he is. They are meaner then Tomcats here if you cross them. I'd rather skirmish with a bartender then a deejay. I think its a carry over from the disco days.

I think the music license is similiar to having insurance also. Lots of magicians here only do birthday parties in private homes. Sounds like Brittany Spears is in that house by the time they are done with all the balloon animals and box magic.

When I do huge stage gigs, the venue owner will be responsible for the license or I will just have to turn it down.
Message: Posted by: tophatter (Apr 17, 2006 01:35AM)
Candini, well said .
Message: Posted by: tophatter (Apr 17, 2006 01:46AM)
Sometimes I get to a show & have the birthday child play his favorite music !
Message: Posted by: Decomposed (Apr 17, 2006 01:46AM)
Tophatter,

I wouldnt worry about it unless you perform in a public venue. I read if you change the music it may be okay to use it.

Perhaps someone can clarify the use of changed music.
Message: Posted by: Decomposed (Apr 17, 2006 01:48AM)
Is the kid's favorite music royalty free?

Oh nevermind, its late, Im thinking public venue again. Then its not worth the risk.
Message: Posted by: Decomposed (Apr 17, 2006 04:30AM)
The freeplay fees (from above) are a little steep. Here is their rate chart, above my paygrade. Looks like $250/4 minutes:

http://www.freeplaymusic.com/licensing/ratecard.php
Message: Posted by: Decomposed (Apr 17, 2006 04:46AM)
I just went to ASCAP website FAQ. Public Performances and NON-Dramatic performances are key words. Anything to do with drama are not licensed by ASCAP.
Message: Posted by: Bill Nuvo (Apr 17, 2006 10:22AM)
As mentioned before, there are a few of us here who produce music and are willing to help others (some for a fee, some for a donation). Or you can buy those magic music cds available at most magic shops/stores. But if you want original go with hiring a musician/music producer.

$1500 isn't really that much when you consider that is paid off in a couple of gigs (2-3) for DJing and then another gig to pay the insurance. So that's maybe 4 gigs to cover your major expenses. Profit is very good when you do at least 40 dj gigs a year.

Some DJs get away with just using licensed music at a venue that pays the licensing fee (ie a bar).
Message: Posted by: Daniel Faith (Apr 18, 2006 10:27AM)
What about older music like classical, etc,....Where the author is long dead?
Is there a certain length of time that when pasted would allow old stuff to be used without licensing?
Message: Posted by: silverking (Apr 18, 2006 10:41AM)
Most written classical compositions do not have a copywrite on them.

This doesn't mean that a specific classical performance by a specific group of performers (the actual CD with the music on it) won't have a copywrite on it.

In other words, you're free to use the written music, but you're still not free to use the actual recording of an orchestra or string quartet, etc.

So unless you play the violin, and have a lot of friends who do as well, you're no further ahead than you are with popular music.
Message: Posted by: Bill Nuvo (Apr 18, 2006 12:42PM)
That is a very good point that I think we haven't mentioned yet. You still have to pay royalties/fees even if you use your own talents or hire musicians to play copywritten music. There is a lot of music that is in the "public domain". To see an example...pull out a Christmas Album. Some songs will say in the credits (Public Domain) or (Traditional) like "God Rest Ye Merry Gentlemen" This music has no royalties except for the people who performed on the current recording you are listening too. Many songs don't have the public domain title attached but still may be. You'll have to contact SOCAN ASCAP and others to find out if the song you want has licensing fees.

So, my advice is just to get unique and make your own or have it made. Then you will have a unique selling feature "Featuring original music" It works for me. I am able to perform at music festivals because of this.
Message: Posted by: Bill Rubie (Apr 20, 2006 12:26AM)
Music unions are very strict. A friend of mine, who owns a furniture store,played CD's in the store.

The union BMI/ASCAP sent scouts in and they threatened him with a law suit or pay a monthly fee. ( I think it was 600.00 per month.)
Message: Posted by: magicdave777 (Apr 20, 2006 08:29AM)
[quote]
On 2006-03-30 01:18, BryanDreyfus wrote:
To save the problems I can offer this....

I have a large collection of "Smartsounds" in many themes.

If you could record your trick as you intend to perform it with no music I could add musical styles that you can rehearse to after you get your video back.

The musicis royalty free and my efforts are "by donation". If you like it pay something for it.

Bryan

ps. if you don't know about SmartSound music then see http://www.smartsound.com and read up on it.

[/quote]

Thanks for this link!
Message: Posted by: silverking (Apr 20, 2006 11:01AM)
[quote]
Music unions are very strict.
[/quote]

A minor clarification here, BMI/ASCAP/SOCAN are not Unions, nor is their mandate similar to that of a Union.

These are organizations whose sole purpose is to collect publishing royalties for musicians who have assigined the right to collect them directly to BMI/ASCAP/SOCAN.
Message: Posted by: Decomposed (Apr 24, 2006 03:38AM)
Daniel,

Add drama to your program.

Candini
Message: Posted by: Decomposed (Apr 27, 2006 02:52PM)
Move onto mentalism. With so much exposure of magic on the internet, its difficult to perform anything commercial these days.

With mentalism, use Midnight Syndicate run thru music. Fair use for performers the way it should be.


JMO
Message: Posted by: Bill Rubie (May 15, 2006 08:18AM)
Silver
I never said "Labor Union" However; they are still the watchdogs for the industry. They are a group of artist, composers that unite together and follow the rules of the organization. And in the industry it is not uncommon for artist to refer to the groups as "unions". I'm just saying there are representatives for the artist who compose, write and perform out there to make sure they get there money.

Thanks for the reminder in semantics
Bill
Message: Posted by: kregg (May 15, 2006 09:19AM)
Be original and have your music made. There are thousands of musicians who have their own studio's and you'll never have to look over your shoulder.
Message: Posted by: Decomposed (May 16, 2006 02:12PM)
The only problem is the audience isn't familiar with the songs when they are composed unless they are really really good.

If show is good enough, just skip the music all together. Or make it a drama and use whatever music you like.

JMO
Message: Posted by: Bill Palmer (Jun 19, 2006 11:49AM)
This is another case of the blind leading the blind and the lame leading the halt.

I am a member of ASCAP. The other two groups that are most active are BMI and SESAC. The rules are pretty much the same for all of them.

If you are performing in a private home, no problem. If you are performing in a church or school, no problem. If you are performing in a night club or other venue that uses live music, they already pay fees, so your act will probably be covered by all of this.

Where it gets sticky is in venues such as large civic auditoriums, trade show facilities, etc. which do not have a license. Then you become liable for all music used. The fact that a tune is in the public domain means nothing, if the performers or arrangers of it are members of one of the groups I mentioned above.

The idea that a furniture store would have to pay ASCAP $600 a month for playing CDs is ludicrous. That might be the annual fee, but not the monthly fee. That's the kind of fee that is charged for a restaurant or club that features live music and seats a fairly good sized number of people.

These fees are determined by how many people the venue will seat, how much they charge for admission and how much the music has to do with people coming in.

If you are even thinking of using pieces of any pop music, make sure that you are doing it legally. The penalties are too stiff to take the risk. There is excellent royalty free music available from several sources. One is Arthur Stead. His site is http://www.arthurstead.com/ . Arthur's music is excellent. He is a professional arranger and composer. He worked for Aerosmith, Cher, and a number of other well-known artists. He has also done soundtrack work for Spielberg.

The CDs he sells are very inexpensive, in the $30 - $40 range.

Some people seem to think that ASCAP, BMI and SESAC are unions. No. You don't have to be a member of any of these to get your music played. You don't have to follow any specific guidelines. All they do is collect royalties and distribute them to their artists.

The reason that there is so much music available is that organizations like ASCAP, BMI and SESAC help composers and arrangers receive the compensation they are due under the law. Without the possibility of collecting royalties, there are many composers who would go back to their day gigs.

Too bad there isn't such a thing for magic.

BTW, if you are worried about whether a song has to be recognizable by the audience to be effective, forget it. Sometimes it gets in the way. You want the audience to think about you, not your music.
Message: Posted by: Dan McLean Jr aka, Magic Roadie (Jun 19, 2006 05:35PM)
[quote]
On 2006-06-19 12:49, Bill Palmer wrote:
BTW, if you are worried about whether a song has to be recognizable by the audience to be effective, forget it. Sometimes it gets in the way. You want the audience to think about you, not your music.
[/quote]
I certainly do agree with Bill on this. I think music should play a supporting role to your magic. DJ's feature songs, and magicians feature magic. Sure there will be exceptions, but in my opinion, they should be rare.

Well, there's my 2 cents worth (That's a little joke for the piano tuners in the group!)
Message: Posted by: Bill Palmer (Jun 19, 2006 06:05PM)
Nice pun.

Let me add this. When you start discussing rights to music, plays, etc., the term is copyright, not copywrite. The terms applying to this are copyright and copyrighted. Copywrite means to write copy. Copywritten is basically a meaningless term.

I mention this, because when you get into discussions about copyright, you are discussing legalities, and this requires very precise language.

If you sent a letter to ASCAP asking if a certain action were a violation of copywrite, they could tell you "no," and still ding you for the fees. They would be telling the truth. It is really a good idea to educate yourself on these things.

I grew up in a family that earned most of its income from the publication of music. As a magician and a publisher, I can see both sides of this issue. Sometimes it can be a very scary one for the uninitiated.

Most of the time, when ASCAP or BMI, which are the two biggest ones in the US, call on someone, it can be very intimidating, because they usually start quoting laws and regulations. Sometimes they actually frighten people into not using music at all, because it can be a confusing matter.

A couple of years ago, there was a restaurant in Kentucky that featured a bluegrass band a couple of nights a week. A competitor turned them in to ASCAP, who called on the restaurant. They were going to charge $50 a week for the license. That's it. The restaurant just quit booking live music. Their business fell off, and now they are not making much money at all. If the musicians had known how to handle the whole thing, it could have been taken care of with one simple sentence. "Our arrangements are our own. We play public domain tunes and our own material." But they would have had to prove it. And that takes a lot of time.
Message: Posted by: ClintonMagus (Jun 20, 2006 08:42AM)
I have a question - at magic conventions, is the music used by the performers covered under a blanket license by the organizers?

Amos McCormick
Message: Posted by: Neil_Brown (Jun 20, 2006 12:07PM)
[quote]I have a question - at magic conventions, is the music used by the performers covered under a blanket license by the organizers? [/quote]
It might be, it might not- it would depend!

If the convention is held somewhere which puts on a lot of shows, then, the venue might have a licence. Alternatively, the convention organisers might have arranged for an event licence. If not, then, it would be up to each individual performer to ensure that they have the necessary licences in place.