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. |
Gilded
Serpent presents...
Music
Copyright Law for Belly Dancers
(or
for any Performing Artist)
by Yasmin
Illustrations
also by author 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
and/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.
Subsidiary
rights:
- 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 and/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 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
Public
Domain
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 (http://www.loc.gov/rr/print/195_copr.html#duration).
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 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. And 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.
Bibliography
-
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 :
-
-
www.ascap.com
– The American Society of Composers, Authors and Publishers
-
-
-
www.harryfox.com – for multi-media licensing, considered the
largest repository for music ownership data.
Other resources
on the web :
www.copyright.gov
Have
a comment? Send us a
letter!
Check the "Letters to the Editor"
for other possible viewpoints!
Ready
for more?
5-4-07
The Devil's Details, Show
Ethics for Professionals, Part 1- Booking a Party by Yasmin
When a dancer
looks good, she, or another, will get called back to perform again.
When she looks bad, customers might be turned off to our lovely
art form forever. Therefore, a bad dancer not only ruins things
for herself, but for all of us
6-27-06
Om Kalthoum, The Voice of Egypt
by Yasmin
She was without contest the most well-known singer of
the Arab world. She was also the most influential woman of her
time in the Middle East.
12-13-05
The Zar by Yasmin
We
do know that today thousands of women in Africa and the Middle
East use this music to cure all kinds of illnesses. They literally
dance until they drop.
5-6-07
How to Charge What You
Are Worth by MIchelle Joyce
The
first step to becoming an effective negotiator is to emotionally
detach yourself from the outcome. If you can’t walk away
from the deal, you have already lost.
7-13-07
Easter in Cairo by Peppina
She
is so strong and powerful and beautiful and intense. Even the
not-so-stylish costumes she used to wear didn't take anything
away from her.
7-12-07
Belly Dance:Time for Personal Assessment
or How old are your Shoes? by
Tasha Banat
What
do you personally want from the dance? In order to answer this
honestly, you must make a personal assessment of your goals and
include your achievements.
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