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)
Illustrations also by the 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
Don't forget to check out author's bio
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. |
