November 14, 2008
For the fourth time this fall, I caught an organization using my music without a license. So far, that’s two dance companies, and two high school marching bands. Please excuse me while I vent…
For those who choose not to follow the ins-and-outs of copyright law (and man alive, I don’t blame you; it all kind of makes me nauseated), when an organization uses a piece of music for something, a license has to be obtained. When a college band performs a piece, they pay a license fee to ASCAP, and ASCAP pays the license fee to the composer and publisher. Same goes for an orchestra. When a bar plays music from a sound system, the bar has to obtain an ASCAP license. (The thinking goes that the bar wouldn’t be playing music if it wasn’t something that added to the value of the business, thus the creator of that music should be compensated.) ASCAP makes those things simple, but it doesn’t cover all kinds of music licensing. It doesn’t cover arranging licenses, or “Grand Rights” licenses. All of these license fees — ASCAP, Grand Rights, sync (for video use), mechanical (for CDs), web streaming — are paid to the publisher. They’re small individually, but they add up, and together, they’re a big reason why I can do this for a living, rather than having a real job.
An arranging license is just that. When somebody wants to arrange, say, “You Light Up My Life” for their marching band show, they have to obtain an arranging license. This license grants them permission to create a derivative work — a new work based on the original source material by, in this case, Joseph Brooks. (Did you know Debby Boone only sang “You Light Up My Life” — she didn’t write it? I didn’t either, until I foolishly used that as my example, then had to go Googling and reading completely useless facts about the song. Things like, “Boone performed this at the Oscars with a group of children using sign language to translate the lyrics. Everyone thought the kids were deaf, but they weren’t.” Now I know — and so do you!)
Anyway, when a marching band uses a song in their show, they have to get permission, and typically a license fee is paid to the publisher of the piece. (It’s the publisher who owns the copyright, not the composer, unless the composer is self-published, like I am, and most of my friends are.) I’ve found that marching bands generally do the right thing and obtain permission prior to using one of my pieces in their show. Almost everybody is on the up-and-up (and a tip-of-the-hat to you guys). But sometimes people try to get sneaky.
How do I find out, since I don’t go to many marching competitions? Lots of ways. Google is a pretty good tool. I also read lots of marching band forums, looking for mentions of my music. (I also read them for fun – I admit it.) Several of my pieces are on YouTube, and I found one infringement by reading the comments on one piece and seeing, “my band is marching to this song this fall!” Then I contacted the student, asked where they went to school, saw that the school had no license, and: busted.
One of my friends goes to a lot of marching shows, and he’ll often text me and tell me that X school is performing some piece of mine on the field. Sometimes it’s because it’s credited (which usually means it’s licensed), but recently, he was at a show, heard a piece of mine, didn’t see it credited, and asked me if I’d licensed it to this school, because it wasn’t credited anywhere. He just recognized it as my piece. It turned out that it wasn’t licensed. (Because it was neither licensed nor credited, the students in the band never even knew they were playing one of my pieces.) After much hassle, stress, and sending of angry emails, it’s licensed.
Then there are the dance companies. They need what’s called a “Grand Rights” license, meaning a performance license for a medium that ASCAP doesn’t cover. In one case, I got an email from the sound tech of a dance company in Holland of all places, saying how much he liked a piece of mine that his company was using. It was a very nice email, but they didn’t have a license — and it turned out that they had scheduled 45 performances.
My favorite was a dance company in NYC that used “Breakdown Tango” (the original source piece for Redline Tango). A dancer for Robert Battle, the choreographer for whom I’d written the piece, was in the audience for a performance by some random modern dance company and heard Robert’s score with new choreography. In that case, the company hadn’t even credited me as the composer. It said, “Music by Antares.” Antares is the performing ensemble; they didn’t write it. That’s like saying, “Music by the Cleveland Orchestra.” I’m willing to bet if you asked the Cleveland Orchestra to write a piece for you, you’d be disappointed with the result.
Then there was the US Synchronized Swim Team, who performed “Damn” at the Olympics in 2004 — and I found out about it the day before the Olympics. That would have been legal — there’s some weird exemption for athletic competition — but they’d edited the hell out of the recording, creating a “derivative work,” and thus requiring, essentially, an arranging license. It’s confusing, and it’s why copyright attorneys exist.
So far I’ve been lucky that when caught, everybody has obtained a retroactive license. I really don’t want to be “that guy who sues schools.” There are already a few composers like that out there, and I don’t blame them, but it doesn’t make you very popular. (And who doesn’t want to be popular?) In the case of the dance company in NYC, I think they were just clueless, but with these high school marching bands, I’m pretty sure they know that they need to license this stuff. If they ask in advance, I almost always grant permission, and the fee isn’t that high. When they’re caught after-the-fact, though, the license fee is much higher. Why risk it? (That’s another one that gets me — when I catch them infringing the copyright, and I send them a license, some people try to negotiate the license fee. You can’t negotiate the license fee if you already performed it. It’s like if I went to a store and stole a fancy Christmas sweater, and they caught me, and they were like, “hey, that sweater is $48,” and I was like, “I’ll give ya $15.” Only my music may be tackier than that sweater.)
Those are just the infringements that I know about this fall. With each one, when I learned of it, I felt physically sick. Yes, part of me feels like, “oh, I’ll make them sorry” — that’s the part of me that was picked on in high school, which makes me at least slightly Napoleonic now that it’s unlikely anybody is going to give me a wedgie if I complain. A bigger part of me, though, just feels like somebody stole my cat.
That’s enough complaining for today. I’m going to go pet Mr. Kitty. (That is not a euphemism.)
Damn, John. That's complicated stuff. Making a living as a composer seems challenging enough without having to fight to get paid for work you've created! It's a wonder that anyone even bothers!!!
Thanks for bothering. You're putting good stuff out into the world!
Go get them, John. High school band directors (or the arrangers they hire) do indeed know better. I refuse to send even one single note, no matter how much they beg, until I have a Permission to Arrange form signed and in my possession.
I'll start texting you whenever I run across one of your pieces, just in case.
Andrew Hackard says
I worked and work for print publishers, not composers and music publishers, but this problem is certainly endemic. My former company has released a number of PDF publications and it's a continuing battle to keep them off file-sharing sites, Bittorrent, etc. (And before they did that, people would scan entire books and post the scans!) There's somewhat of a collector's mentality at work that doesn't apply in your case, of course.
The only thing that keeps me sane is the knowledge (or delusion, your choice) that the majority of people want to play by the rules and not cheat the people who create the things they might think were worth stealing. Sometimes it's cold comfort, granted.
Mark S. says
That's why you make your own pieces for marching band.
Boosey and Hawks sued one of my friends schools.
Just because they hinted at Incantation and Dance by Chance.
Travis Taylor says
I was made fun of in elementary school, but then people realized that I'm a big guy, and I can do a lot of damage. I offer you the mass carnage I can cause with my massiveness, if you'd like.
I'm with you on people not getting licensing and rights, if you're a director of an ensemble, you've been given the essential tools on knowing how to get a license. If excuses are given, it's pure dickery in my viewpoint.
I just don't understand people nowa'days, with their belief of entitlement; "music is free man," attitude. If that were the case, we'd all live like Ives.
There are worse things:
To tell the truth, this all actually sounds like a lot of fun. Do you need an assistant to help you catch the infringers? Do you pay?
Question, does this apply to HS bands that buy one of your pieces and perform it at a "sit down band" concert NOT for profit? Does it apply to pieces by major publishers (i.e. is self publishing different?). Does it apply to band concerts where the HS band is making a profit on ticket sales?
Just curious. "When an organization uses a piece of music for something, the have to obtain a license" got me thinking.
Thanks for the Boone trivia. I think I sang that in choir in middle school. gag. I might have lip synched.
That is an incredible photo of an insanely gorgeous cat.
Kerwin Young says
Hey there John,
Part of why we go through it mentally is because of other people trying to get over on the creators (us). It's an on-going battle John.......and most of the time, it is us who have to go and track our own material and keep tabs on what's happening with it. Piracy is real, and many of these agencies who's job it is to collect, monitor, and secure licenses are often unaware of what's happening........while the other guy who loves our music so much but won't attempt to pay, would rather use it and abuse it.
I wonder if BCM experiences this. Alliances are definitely pertinent!!! We're composers......and we're also businessmen. And, as businessmen, we will run up against conniving individuals who would rather go behind our backs to get the goods.