USING RECORDED MUSIC

by STEPHEN PEITHMAN; AACT SPOTLIGHT, FEBRUARY 2002

If you use recorded music before, during, or after a show, you are obligated by law to pay royalties for its use as long as the music and

recording is protected by copyright.

How you go about satisfying the law depends on how the music is used -- as general background in your lobby or auditorium, or as music

tied to the stage performance itself.

BACKGROUND MUSIC

If you play general background music on a routine basis, you should apply for a general license from the organizations that represent the

writers and publishers of the songs.

The best-known organizations are ASCAP (American Society of Composers, Authors and Publishers) and BMI (Broadcast Music Industries).

General or blanket licensing is used by business like restaurants of stores that play background music throughout the workday. If you use a

lot of background music, it's usually cheaper to get the yearly blanket license. (Many colleges and universities, for example, do this to

simplify royalty payments for band, orchestra, choir and theatrical

performances.) ASCAP and BMI base the amount of the fee charged for the performance licenses on the type of theatre, and its seating

capacity.

You can license the entire output (catalog) of a particular composer or the entire catalog of all ASCAP or BMI composers (the latter is best for

general background music). However, you cannot get permission or a license for just one or two songs.

PRODUCTION MUSIC

If you ask for permission to use a recording of "White Christmas" as lead-in music for your second act, or to use the Boston Pops recording

of Stephen Sondheim's "Night Waltz" to bridge between scenes two and three, you need to go elsewhere. That's because ASCAP and BMI

license entire catalogs, and only for non-dramatic purposes, such as general pre-show or intermission music. If a recording is used every

night for a specific play, it becomes a dramatic use, an is out of ASCAP or BMI jurisdiction.

Permission to use recorded music in combination with live stage performances (and with visual images in television, films, computer

programs, websites, and other audiovisual formats) involves what is called "synchronization rights." synchronization rights for most

US (and many imported) recordings are handled by the Harry Fox Agency, Inc. (HFA). Affiliated with the National Music Publishers

Association (NMPA), the agency represents most American music publishers.

HFA acts as an intermediary for many of its publisher principals in negotiations with producers, facilitating communication between the two

parties, which leads to a license

agreement. HFA does not set rates or determine terms of any such licenses it issues on behalf of its music publisher principals.

Synchronization License Request forms are available online at the HFA website (www.nmpa.org/hfa.html). You can't submit the form online,

however; you print out the form, fill it in, and send by mail or fax to The Harry Fox Agency.

Since the recorded use of music in combination with visual images (i.e. synchronization) does not come within the scope of the compulsory

license provisions of the US Copyright Act, licenses for the use of music in live stage performances must be negotiated on an individual

basis between the copyright owner and the prospective user. So don't wait until the last moment; obtaining rights, like all legal matters, can

take time.

MUSIC IN THE PUBLIC DOMAIN

If the musical selection is no longer protected by copyright, you need not seek permission. However, since protection includes both the

music and the performance, it is not always easy to determine from a recording just what is protected by law. As a rule of thumb, most

songs written in the last 75 year, and most recordings made in the last 50 years, are protected.

Recordings often do list whether a song is ASCAP or BMI. The websites for ASCAP and BMI also have searchable databases for the

composers and copyrighted songs represented by each composer. (ASCAP's database is called "ACE." BMI's is called "BMI Repertoire.")

The Harry Fox Agency does not offer a searchable database at this time.

CONTACTS:

ASCAP: One Lincoln Plaza, New York, NY 10023, 212-621-6000,

Email: Licensing@ascap.com

Website: www.ascap.com

BMI: 320 W 57th St., New York, NY 10019, 212-586-2000,

Email: genlic@bmi.com

Website: www.bmi.com

SESAC: 5 Music Square East, Nashville, TN 37203m 615-3200055,

Website: www.sesac.com>

The Harry Fox Agency, Inc.: Synch Dept., 711 3rd Ave., 8th Floor, New York, NY

10017, 212-370-5330,

Email: licensing@harryfox.com