Gilded Serpent presents...
The musicians are the Henkesh family; drummer Reda Henkesh,
accordion Sayed Henkesh, violin Karim Henkesh in Symphony
Studio with sound engineer Hatim Mounir. The author is in the
center of the collage.
Music Copyright Law for Belly Dancers
(or for any Performing Artist)
posted 7-16-07, formatting update 3-25-14
Illustrations also by the author
Newer version with comments section here
You are not going to like what you are about to read.
But if you are performing publicly to music you do not own, for your own protection, please keep reading. Every professional dancer should know at least the basics of music publishing law, particularly if she wants to appear in an audio-visual production destined for commercial distribution.
From Hollywood blockbuster movies down to clips on YouTube the law is the same and it applies to anyone who uses someone else’s music for their own purposes.
Copyright issues can be confusing to a newcomer or to anyone who cannot read legalese. Many subtleties of the laws take professionals years to understand. But some things are very straightforward. If you did not compose a piece of music, write the lyrics to it and pay for it to be recorded you can not play that music publicly without asking the people who did these things for their permission. More likely than not the rights holders will want to be paid for the commercial use of their property. Yes that is exactly what a piece of music is, intellectual property. In the United States and all the countries that signed the Berne Convention (1886 and 1971), intellectual property is protected by copyright laws that must be respected if you want to copy or perform to someone else’s work.
So what are the basics of music copyright?
Any piece of music you hear has up to seven copyrights associated with it. That’s right seven.
The Basic Rights:
- The music – composition
- The words – lyrics
A song copyright is composed of the lyrics and music copyrights and is indicated on copies of the work by a (c) or "Copyright" or "Copr." (year, Name of Owner). It is usually managed by a publisher - an entity (person or corporation) who has been assigned or has acquired the right to manage the reproduction of the music and collect royalties.
- The sound recording – (indicated on copies of the work by the letter "P" in a circle) protects the sounds on the record and usually belongs to a record company or the entity that paid for the recording.
- Performance - the right to receive royalties when a song is sung or played, recorded or live, on radio and television, on the Internet, during live concerts and in programmed music services. Royalties are either paid directly to both the composer and the publisher or to their performing rights organizations. This payment allows the licensee to perform the music in public places (broadcasting stations, hotels, clubs, colleges, restaurants, stores, etc.) according to the terms of their contract.
- Mechanical - the right to make physical copies of a particular recording of music. For 2006 and later, the mechanical rate is the greater of 9.1¢ per song or 1.75¢ per minute for each copy of a record or tape made and distributed (this includes DVDs). A DVD producer may be able to arrange different terms and conditions with an independent artist, particularly if publicity for the music is involved. But a written contract still must be signed that grants permission.
- Synchronization - the right to synchronize an original song or sound recording to visual images as part of the soundtrack of a film or any other audiovisual production. This is a separate right from the mechanical rights described above.
- Adaptation - the right to change or adapt the music or lyrics to a song.
That’s a lot of rights to worry about.
Actually it’s not too difficult and you may not need to worry about all of the rights. The composer and lyricist of a song usually assign or sell their rights to a music publisher. Often these publishers turn around and use large clearinghouses, called performing rights societies, as agents. The societies are the ones who charge fixed fees for the music, according to its use, grant mechanical licenses and collect royalties. The web sites of the major organizations are listed at the end of this article. Therefore a dancer (or her video production company) can contact the publisher or the publisher’s agent to acquire the rights she needs.
Nevertheless in our insular industry, when you are dealing with a small local artist, it is better to go straight to the source. That way you insure the real author of the music profits and not the staff of a large clearing house.
The smaller artist or publisher will usually be more reasonable than the big professionals, providing you credit them and offer free publicity for their work. Look for the names after the P and the C on your CDs (one of many reasons why it is best to work with original recordings and not copies). Contact information for the rights holders is generally listed directly on the CD or its packaging.
The long and short of it is that a dancer can not use a piece of music for a DVD without the copyright holder’s permission. Usually mechanical royalties, performance rights and synchronization fees must be paid and a written contract signed before a dancer has the right to use any piece of music. It is not a good idea to try to use “fair use” as an excuse not to contact the rights holders either. The law is extremely complicated and does not apply to instructional or performance belly dance DVDs.
“There is no special number of "free" measures that can be used without authorization. The factors that determine whether the use is fair include the purpose and character of the use, the nature of the copyrighted work, the amount and substantiality of the portion used in relationship to the copyrighted work as a whole, and the effect of the use on the potential market for or value of the copyrighted work. In addition, the U.S. Supreme Court has stated that, in analyzing these factors, courts should focus on whether and to what extent the new work is "transformative," that is, it alters the original work with new expression, meaning, or message. The more transformative the new work, the less will be the significance of other factors that may weigh against a finding of fair use.” www.bmi.com
The only reason a dancer would not have to contact the copyright owner of her music is if it falls in the public domain. Once a song has become part of the public domain, it can be used for any purpose by anyone without the need to pay compensation to the composer or previous owner. But that means ALL THE COPYRIGHTS of the song and the sound recording meet the public domain requirements. The following is from the Library of Congress web site. These rules apply to everything, from music, to images to books.
- Works published or registered in the U.S. before 1923 are now in the public domain.
- Works published with notice or registered in the U.S. from and including 1923 through 1963 are now in the public domain unless the copyright was renewed, in which case they are protected for 95 years from the copyright or publication date. A copyright search is required to establish if the item was copyrighted and that the copyright was renewed.
- Works published with notice or registered between January 1, 1964 and December 31, 1977 are protected for 95 years.
- Beginning January 1, 1978, a statutory copyright automatically attaches to the work for the author's life plus 70 years, unless a piece is considered a "work made for hire." “Then the employer is considered the author, and the copyright, which the employer owns, runs for either 95 years from the time the work was first published or 120 years from when it was created, whichever is shorter. (That is the same copyright term for an anonymous or pseudonymous work.) In order for a work to be considered "made for hire," it must be prepared by an employee in the scope of his employment under a traditional employee-employer relationship, or else it must be commissioned as one of several special categories of works (such as part of a motion picture or other audio/visual work) with there being a written agreement between the parties that it is to be for hire.” bmi.com
Copyright Law in Egypt
This past summer I made a pilgrimage to the library of the American University in Cairo to find an English copy of Egypt’s copyright laws. The translation I found states that in 1952 Nasser passed a clear copyright law that established protection for all intellectual property until 50 years after the death of the author. Fifty, not seventy as in the rest of the world, but a law does exist on their books. Actual practice is a whole different ball game however. We have all seen the pirated copies of copies for sale in the streets or by vendors at shows; images we know belong to someone else sold for a dollar in Egypt or in poorly packaged but expensive compilations in the West. Egyptians themselves don’t respect their own laws.
But that doesn’t make it OK to copy them, so to speak. You may ask, “Why should I abide by unused laws?” The answer is because Western distributors of these products, if they have legally acquired the rights, can enforce those rights using Western laws and judicial systems. Being sued in a court of law can cost thousands in legal fees alone, not to mention the fine for damages if the offense is ongoing, lucrative and widely publicized.
"The penalties for an infringement of copyright for each work a defendant is found to have infringed, the plaintiff copyright owner is entitled to receive its choice of a) the actual damages suffered plus the infringer's profits that were attributable to the infringement, or b) "statutory damages" in an amount between $750 and $30,000 (or up to $150,000 if willful infringement is found), as the court considers just. The U.S. Supreme Court has ruled that the amount of statutory damages is to be decided by a jury.” www.bmi.com
That’s scary stuff.
A Dancer’s Responsibility …
… is to know where her music comes from and who owns the rights to it. The live show producer or restaurant owner’s responsibility is to pay the public performance royalties for that music. Sometimes payment is not enforced in small restaurants and nightclubs. But it is always required on Broadway, in the large Las Vegas casinos or for any other high profile show. It’s generally a question of visibility, money and publicity. DVDs, television and film are different however. Even the smallest run or broadcast requires a contract and payment. The more visible the distribution, the more copies sold or the more viewers a station has, the more important it is for a dancer to be legal. The only proof required in order to sue a broadcaster or a distributor is a copy of the broadcast, or a DVD with a receipt.
READ THE FINE PRINT IN YOUR CONTRACTS
Has the theater owner, show manager or video producer put the onus of liability for the music on you, the dancer? When the event happens or the DVD is released will the copyright holders knock on your door for payment or the producer’s? Know what you are signing and what responsibilities you are taking on before you put pen to paper. It is wonderful to have your art preserved for posterity, but at what cost?
Knowing these laws is important for more than just protection. We as artists have a duty to respect the other artists we work with. Think of the musicians and their families. If the musicians and their producers can't make a living from their creativity, how can they continue to publish more? We all love good music. Abiding by copyright law ensures that the artists who make it can continue to create.
Bertrand, Andre. La Musique et le Droit - De Bach a l’Internet. Paris: Litec Groupe LexisNexis,2002
Choisy, Stephanie. Le Domaine Public en Droit d’Auteur. Paris: Litec Groupe LexisNexis, 2002
Creech, Kenneth C. Electronic Media Law and Regulation. 3rd ed. Boston: Focal Press, 2000.
Donaldson, Michael C. Clearance & Copyright. Los Angeles: Silman-James Press, 1996.
Hallorand, Mark. The Musician's Business and Legal Guide. 3rd ed. New York : Prentice Hall, 2001
Miller, Philip. Media Law for Producers. 3rd ed. Boston: Focal Press, 1998.
Performing Rights Societies – organizations that monitor public performance of music and collect royalties for their use :
Other resources on the web : www.copyright.gov
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