Klarinet Archive - Posting 000013.txt from 2004/05

From: "Kevin Fay" <kevinfay@-----.com>
Subj: RE: [kl] Ownership/copyright
Date: Sat, 1 May 2004 13:58:58 -0400

Bryan Crumpler asked:

<<<Question: When you perform a solo w/ an orchestra... who is the copyright

holder for that performance/sound-recording when one is made? Is it the
composer, orchestra, soloist, publisher, combination, who?>>>

Answer: Depends.

There is unfortunately no easy answer. If a "new" piece of music, probably
the publisher, as the rights to perform, record and commercially exploit the
performance are typically transferred to the publisher in the publication
contract and reserved by the publisher when published. Here in the U.S.,
that's why your group needs to send their programs and fee into ASCAP each
year, so the publishers can get their money. If you need a "mechanical
license" to distribute a recording, you'd typically need to send your cash
into Harry Fox, see www.harryfox.com.

If the music is in the public domain - say, the Mozart concerto - then it
still gets complicated. The publisher of the edition used *might* try to
assert a valid copyright in it, so you'd owe the same royalties described
above. What amount of editing puts a piece from the public domain back into
copyright is an open question that's been discussed here before, I won't
rehash; suggest looking at the archives.

Assuming that the music really is public domain, it's still not open season.
A sound recording of a piece in the public domain is a separate
copyrightable work. To get the answer, you'd have to look at the contract
between the group and the performance venue. Many halls here in the U.S.
will reserve recording rights for performances made in them. The next clue
would be to look at the contract between the performing group and the
soloist, which should allocate those rights as well (and hopefully be in
accordance with the contract with the hall).

If not covered in the contracts, then you have a potential lawsuit on your
hands. Better to write the contracts allocating up front.

kjf

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