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  1. #76
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    Default Re: Public Domain

    Here's where I am coming from. The last place we lost we came on the slowest night, we sit in a circle and don't really care if there are people there or not. Of course if no one is there they will close. The bar is more of a sports bar and pays copyright fees for the TV's which stay on, we go in the back room. I would not set something up if the establishment had regular music so as not to infringe on someones playing for pay while we just want to get together as friends. They did not hire music and were not a music bar. If the establishment thought they were going to be busy they called and told us not to come. Doesn't sound like a money making proposition does it. Still BMI wanted them to pay and we lost our place. Seems like there could be some provision for friends getting together to play music, public or private, for fun only without paying a couple grand a year. We didn't even get free drinks, old time music really doesn't draw a crowd or is very popular outside our circle of musicians.
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    Default Re: Public Domain

    Quote Originally Posted by allenhopkins View Post
    Huh. I play about 150 gigs a year at seniors' residences, nursing homes, senior centers. .......

    So how many of those facilities do you think have ASCAP/BMI licenses?
    Not many!

    But they are not bringing in the public and selling food, alcohol or entertainment.

    Quote Originally Posted by allenhopkins View Post
    Now I'm going to say something really subversive, and I apologize -- sincerely, in advance -- to those who are trying to make at least part of their living, by being paid for music they've written (or arranged) and copyrighted. Music's being played all over the place, in a variety of venues, some where money's involved, others not, and a great deal of it is not public domain, and in so many cases no one's buying a license or worrying about fair compensation for authors and arrangers. To some extent, once you let a piece of music out the door, there's only limited control over what happens to it afterwards.
    All the more reason for the places that are known for using music commercially pay.

    That's the issue - does the venue make money off the music? If so, they morally and legally should pay.

    The old folks' homes are not making money off your (or my) music - the barrooms are.

    Quote Originally Posted by allenhopkins View Post
    For every farmers' market that worries about public performance of licensed/copyrighted material, there are probably 50 who never even thought of the issue when they let some busker open up his/her mandolin case and play Cherokee Shuffle (this version copyrighted by one Bruce Ling). So, don't turn me in, but I'll blithely go my way playing for the old folks, without worrying overly about being shadowed by the License Police. Jus' an outlaw...
    If it's only about live performance, you will never be the target. It's all on the commercial venues, not the musicians.

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  4. #78
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    Default Re: Public Domain

    Quote Originally Posted by pops1 View Post
    Here's where I am coming from. The last place we lost we came on the slowest night, we sit in a circle and don't really care if there are people there or not. Of course if no one is there they will close. The bar is more of a sports bar and pays copyright fees for the TV's which stay on, we go in the back room. I would not set something up if the establishment had regular music so as not to infringe on someones playing for pay while we just want to get together as friends. They did not hire music and were not a music bar. If the establishment thought they were going to be busy they called and told us not to come. Doesn't sound like a money making proposition does it. Still BMI wanted them to pay and we lost our place. Seems like there could be some provision for friends getting together to play music, public or private, for fun only without paying a couple grand a year. We didn't even get free drinks, old time music really doesn't draw a crowd or is very popular outside our circle of musicians.
    OK, that sounds odd. You guys were not performing, you were just having a session at a bar.

    The club is already paying for the TV - is that a cable fee or a licensing fee for TV?

    Why not play at your homes instead of at a public bar? It's a lot more fun, kitchen music is great.

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    We did the home thing for years, but it was always at the same home. The same person's had to clean up. There are always a few that never bring a beer, but want one. A lot of times we get 10-15 people, it's a lot of fun, but quite a few for a home jam. I explained it all to BMI and they insisted the establishment pay extra, beyond the TV for live music. The TV I believe was a paid service to get games and not just cable. Unfortunate, but it has happened to us several times. Another time we played uncopyrighted original material. The songwriter was good, but really was only capable of playing his own material. On the few occasions he tried to play someone else's music it wouldn't violate any copyright laws, wasn't even close to how it was supposed to go. They pestered the owner until he dropped the music. There was no way for him to pay fee's, it wasn't making him money, but was just something extra he was trying to do. No alcohol, didn't sell any thing to make money from, just doing something nice. Ah well such is life.
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    Default Re: Public Domain

    Quote Originally Posted by DavidKOS View Post
    I did think of one thing I can't figure out under the current rules.

    You and a few buddies go to a pub, with your instruments, and begin to play a session.

    the club does not have music of any sort otherwise. You and the gang do not get paid, nor is it a feature that gets other customers in.

    Do they have to pay ASCAP and BMI?

    they did not hire the players, they are patrons.
    I can guess that the sticking point, from ASCAP/BMI's perspective, is that you can't just assume, or prove, that live music doesn't draw in more customers to the establishment.

    Nobody would hire musicians to drive people away (although some of our Irish/Scottish sessions are probably borderline, with the bagpipes). The "normal" assumption for live music is that it's a benefit to the establishment whether it's paid for, or not. So a license would be required.

    IANAL and all that, I'm just making assumptions based on what I've heard from local venue owners about live music, whether paid-for or just hosted for free, like some of the Irish sessions around here.

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  9. #81

    Default Re: Public Domain

    How would performing at weddings fit into all of this? Seems like it could be something a grey area but I have no idea really. I'm interested in eventually starting playing classical guitar and other instruments at weddings, funerals, nursing homes and am curious.

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  11. #82
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    Default Re: Public Domain

    Quote Originally Posted by allenhopkins View Post
    Huh. I play about 150 gigs a year at seniors' residences, nursing homes, senior centers. Almost invariably start with You Are My Sunshine (a favorite with seniors). Rights to the song, credited to "Jimmie Davis & Charles Mitchell," are assigned to Peer International (though there's a fairly interesting article on its disputed authorship). Copyright, I believe, was 1939, so no PD here.

    So how many of those facilities do you think have ASCAP/BMI licenses?
    More than you think, especially if they have a movie night. Here's the legal perspective from one Senior Living resource site I found on a quick search:

    https://www.mcknightsseniorliving.co...rticle/630321/

    Just because you don't see any evidence of licensing doesn't mean there isn't one in place for that venue. And you don't have to be concerned about it, either! It only affects the performers of live music if they lose the venue, due to refusal or inability to pay the fees.

    For every farmers' market that worries about public performance of licensed/copyrighted material, there are probably 50 who never even thought of the issue when they let some busker open up his/her mandolin case and play [I]Cherokee Shuffle
    Sure, but as with the example about Mississippi dive bars, it depends on how high profile that farmer's market is. Do they have a web site? An extensive Facebook page? Mailing list? Posters around town? The more high-profile a public performance venue is, the more likely it is to get hit for licensing fees.

    So, don't turn me in, but I'll blithely go my way playing for the old folks, without worrying overly about being shadowed by the License Police. Jus' an outlaw...
    That outlaw hat looks good on 'ya, but it's really beside the point.

    It's not up to *you* or any of the rest of us here in the Cafe, to deal directly with any of these issues. You can ignore it completely, unless a particular venue says you can't play there any more due to licensing restrictions.

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    Quote Originally Posted by Seter View Post
    How would performing at weddings fit into all of this? Seems like it could be something a grey area but I have no idea really. I'm interested in eventually starting playing classical guitar and other instruments at weddings, funerals, nursing homes and am curious.
    Most weddings where you would get hired to play music take place at hotels, churches, or specialized wedding venues. All of those venues can be assumed -- by you, the performer -- to be paying the appropriate license fees. You don't have to worry about it, or ask about it. Same thing with nursing homes, funeral parlors, etc.

    You don't pay the license, the venue does. End of story.

    Worry more about getting paid. One big tip I can give you, especially for weddings, is make sure you get paid the total amount before the end of the gig. Don't let the guy who writes the check drive off with the bride while you're still packing up your gear. One time was enough for me to learn that lesson.

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    Outlaw publishing companies and licensing and rights agencies. All songs, original or otherwise, may be performed for free. All songwriters to receive a government stipend of $200,000 a year. That should make everyone happy.
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    Default Re: Public Domain

    Quote Originally Posted by Seter View Post
    How would performing at weddings fit into all of this? Seems like it could be something a grey area but I have no idea really. I'm interested in eventually starting playing classical guitar and other instruments at weddings, funerals, nursing homes and am curious.
    Quote Originally Posted by foldedpath View Post
    Most weddings where you would get hired to play music take place at hotels, churches, or specialized wedding venues. All of those venues can be assumed -- by you, the performer -- to be paying the appropriate license fees. You don't have to worry about it, or ask about it. Same thing with nursing homes, funeral parlors, etc.

    You don't pay the license, the venue does. End of story.

    Worry more about getting paid. One big tip I can give you, especially for weddings, is make sure you get paid the total amount before the end of the gig. Don't let the guy who writes the check drive off with the bride while you're still packing up your gear. One time was enough for me to learn that lesson.

    I've had to chase the check a couple times - and thus we had payment up front before we played.

    Yes, the venue is responsible for live fees - the band is only responsible when it records someone's copyrighted music.

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    Default Re: Public Domain

    Whew! This has been a fascinating read...thanks all, especially Dave K.
    One watch by night, one watch by day...if you get confused, just listen to the music play.

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  20. #87

    Default Re: Public Domain

    I did think of one thing I can't figure out under the current rules.
    You and a few buddies go to a pub, with your instruments, and begin to play a session.
    the club does not have music of any sort otherwise. You and the gang do not get paid, nor is it a feature that gets other customers in.
    Do they have to pay ASCAP and BMI?
    they did not hire the players, they are patrons.
    I can tell you from experience that BMI expects the venue to pay. One jam I used to go to got shut down because of that.

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    Default Re: Public Domain

    Do you have any idea how much money the copyright holders of Happy Birtthday To You would have made, if it were remotely possible to collect performance fees on the perhaps billions of times it was sung outside the ASCAP-exempt "small circle of a family or its social acquaintances" (quote from the ASCAP website).
    Have you noticed that most restaurants no longer sing "Happy Birthday" to guests but instead have some silly made-up chant that goes "Happy, happy birthday, whoot, whoot, whoot!!!!". That's because the restaurant owners have had the chat with BMI and want to avoid paying them $1,000 royalties a year. Yes, "Happy Birthday" is copyrighted and they enforce it and collect whenever possible.

    Steve

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  24. #89
    but that's just me Bertram Henze's Avatar
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    Default Re: Public Domain

    Quote Originally Posted by DavidKOS View Post
    Why not play at your homes instead of at a public bar? It's a lot more fun, kitchen music is great.
    ...think it's safe? If you can hear it from the outside, it's public, isn't it? Abandon your front porch picking, all. I picture black BMI vans patrolling the streets with parabolic microphones in search of the music

    Reminds me a bit of early 20th century Ireland, when the priests wouldn't allow unsupervised dancing. It's never over, apparently, just the religion changes - now it's money. Protection racket, it is.

    Will there be an enlightened time, when musicians discover the world of Open Source and Copyleft? Somewhere, over the rainbows? (sshhh! that's copyrighted!)
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    Default Re: Public Domain

    I remember when licensing organizations (especially ASCAP) used to furnish stickers for the front door of the businesses who paid their fees. It seems they were put next to the Chamber of Commerce stickers. I don't think I've seen one of those in 30 years or more. They were mostly on nightclubs and bars.
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    Default Re: Public Domain

    I remember those stickers too! Have not seen them since we were regularly gigging! Probably twenty years now.
    Timothy F. Lewis
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  30. #92
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    Default Re: Public Domain

    Happy Birthday is free to sing anytime any where. It is so popular and has been for so long copyright no longer is a problem.
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  32. #93
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    Quote Originally Posted by pops1 View Post
    Happy Birthday is free to sing anytime any where. It is so popular and has been for so long copyright no longer is a problem.
    That's like Band-Aid, Kleenex and Cellophane, etc. They're all trademarks but when it comes to everyday usage of the terms, who cares if it's the real thing anymore.
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    Default Re: Public Domain

    Quote Originally Posted by mbruno View Post
    A safe bet is to play anything from 1920 and earlier using the arrangements from that time too. Any sheet music with the artist listed as "traditional" is a safe bet too.

    All that said, it's entirely possible that a song on the list (like After You've Gone from 1918) may have Public Domain arrangements as well as arrangements that are still copyright protected as well....
    Getting back to this subject (been at Wintergrass all weekend!) and this was a question I had. I'm assuming authors like Dix Bruce in "Parking Lot Pickers" and David Brody in "Fiddler's Fakebook" did some diligence when they cite "trad" as the author of a song. Is this a safe assumtion that the song (at least as presented in the book, which for "Parking Lot" includes lyrics) is "safely" in the public domain?

  34. #95

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    Quote Originally Posted by Mandobart View Post
    Getting back to this subject (been at Wintergrass all weekend!) and this was a question I had. I'm assuming authors like Dix Bruce in "Parking Lot Pickers" and David Brody in "Fiddler's Fakebook" did some diligence when they cite "trad" as the author of a song. Is this a safe assumtion that the song (at least as presented in the book, which for "Parking Lot" includes lyrics) is "safely" in the public domain?
    But what about the book itself? Are the book's arrangements now copyright too, just by virtue of being published?

    I have a different music book sitting here right next to me, it's a Hal Leonard fake-book called "The Ultimate Christmas Fake Book" (6th edition, red cover) which contains "over 270 songs", and it has this message in the front of the book:

    "For all works contained herein: Unauthorized copying, arranging, adapting, recording, internet posting, public performance, or other distribution of the printed music in this publication is an infringement of copyright. Infringers are liable under the law."

    Ok so it's a fake-book which is just the basic melody line, lyrics, and someone's ideas as to suggested chord names. No piano part or anything, no guitar tab, just lead-sheets.

    In some of these songs, the lyrics and melody are traditional public domain songs that predate this modern copyright nonsense by sometimes hundreds of years.

    But that warning blurb outright says that "public performance" of any of the material from the book, is an "infringement of copyright."

    So, what exactly, is it that Hal Leonard claims to be copyrighting? The chords? I thought you couldn't copyright chords and chord progressions?

    Even if the copyright *was* to protect the chords, I wouldn't use half those chords anyway, some of them sound weird and wrong, like someone was grasping at straws to create a 'different' version just because they could.


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    Not trying to pick on or single out just Hal Leonard, as they have other books that I've found to be of at least some usefulness. But the copyright blurb makes a person wonder.

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    Default Re: Public Domain

    I am sure there's people who make a phone stand out of a bent paper clip and try to file a patent for that.
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    Default Re: Public Domain

    An arrangement of a song that is the public domain is considered a derivative work.

    "The copyright in a * * * derivative work extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material. The copyright in such work is independent of, and does not affect or enlarge the scope, duration, ownership, or subsistence of, any copyright protection in the preexisting material."

    17 U.S.C. Sec. 103(b)

    "To be eligible for copyright protection, material must be original, meaning that it must have been independently created and must possess a modicum of creativity. The requirement of originality should not be confused with novelty, worthiness, or aesthetic appeal. The requirement is rather that the material must be an independent product of the author and not merely some copy or minimal variation of an existing work.

    * * *

    To be copyrightable, the derivative work must be different enough from the original to be regarded as a new work or must contain a substantial amount of new material. Making minor changes or additions of little substance to a preexisting work will not qualify the work as a new version for copyright purposes. The new material must be original and copyrightable in itself. * * * A work that has fallen into the public domain * * * may be used for a derivative work, but the copyright in the derivative work will not restore the copyright of the public domain material; neither will it prevent anyone else from using the same public domain material for another derivative work."

    D. Bouchoux, Intellectual Property, The Law of Trademarks, Copyrights, Patents and Trade Secrets, 139-140, 151 (2000).

    The material from Deborah Bouchoux's book is from the 2000 edition. It is an excellent book on this subject and goes into more detail than typical books on the subject. It is used as a textbook in paralegal schools. You can get a later edition (used) on Amazon for around $30. (Please note that my post is intended for discussion purposes only. It is possible that the quotations may be in error or provide dated or superseded information. This post is not intended as legal advice. So if you really need to know an answer about this stuff, pay a copyright lawyer.)

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  40. #98
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    Quote Originally Posted by pops1 View Post
    Happy Birthday is free to sing anytime any where. It is so popular and has been for so long copyright no longer is a problem.
    Well, not quite for that reason. It took a recent court case to overrule the longstanding copyright claims that Warner/Chappell Publishing had made on the song (LA Times article).

    Let me also say that I appreciate the excellent commentary on my post about seniors' facilities and their licenses or possible lack thereof, and my other ruminations on whether copyrights on music are ever completely enforceable.

    When I -- infrequently -- record music in the studio, I always wonder where it's going once the recordings are published. In a way, I feel I've lost final control over it; it's out there somewhere, and someone may listen to it decades after I'm buried. Someone else may be inspired to play it the way I did, or may add his/her own embellishments. It's a good feeling, but I'm sure it would be less pleasant if I were expecting that all future users of what I recorded, in whatever form, would send me or my heirs some money for their use.

    The printed word's somehow different; plagiarism is comparatively easy to spot -- less so in the internet age, another problem -- and literary copyrights perhaps more enforceable. But what if you're only inspired by someone's writing, to write something very close to it? There's been a recent fad to "update" PD novels with contemporary non-serious addenda: Pride and Prejudice and Zombies, e.g. Would a similar "mash-up" of a copyrighted novel be a violation, or not -- "protected use" for satirical or critical purposes?

    Well, I'll wait for one of my few recordings to have zombies added. Could be fun.
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  41. #99

    Default Re: Public Domain

    Quote Originally Posted by Billy Packard View Post
    Does anybody notice that elephant over there??

    If you want to use something that isn't yours for profit, pay for it or get permission to use it.
    Okay, fair enough. But here's another idea. Why isn't it up to the lawyers to determine what I play is or is not under their copyright? Why don't they come to my free gigs and listen and report to me that songs 3, 6, and 11 are part of their collection group?

    What if I change my mind at the last moment, on stage, and decide to substitute song 14 (on the "if we have time" list) for song 6? Why should they get paid for song 6 if I decide at the last minute not to perform it?

    Most of the songs I play were written by artists who are now dead. The money isn't going to them, it is mostly going to lawyers.

    FWIW, I was talking to the owner of a Bed & Breakfast. He used to play the piano for his guests in a common area of the B&B. No more. One of the collection agencies sent him a threatening letter and it shut down something that was simply an "add on" to his regular business. People weren't going to the B&B for the music; it was an extra.

    I believe that living artists should get their just due (e.g., the writers who write the latest "hits"), but come on, I read library books for free without the writers of those books getting additional, incremental income from my having read them.

    Excessive lawyering is destroying other parts of society; I guess we can't expect it not to destroy this part also.
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  42. #100
    Registered User J-45er's Avatar
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    Default Re: Public Domain

    Quote Originally Posted by Mandobart View Post
    Getting back to this subject (been at Wintergrass all weekend!) and this was a question I had. I'm assuming authors like Dix Bruce in "Parking Lot Pickers" and David Brody in "Fiddler's Fakebook" did some diligence when they cite "trad" as the author of a song. Is this a safe assumtion that the song (at least as presented in the book, which for "Parking Lot" includes lyrics) is "safely" in the public domain?
    Suggest researching lyrics printed in Fakebooks before assuming they are public domain. It is a common practice for recording artists to compose original lyrics to public domain melodies. A famous example is Paul Simon's excellent "American Tune."

    I suspect many of the lyrics in Fakebooks are changed/revised from the original public domain lyrics for a variety of reasons (one, but not the only reason, is to strengthen copyright protection). Of course, not every Fakebook does this, but be wary.

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