Making recordings in any form is one of the rights assigned exclusively to the copyright holder under copyright law. This is partly what the notice “All rights reserved” means. Although technology has changed rapidly, copyright law has not. We’re still bound by the laws on the books, however laxly enforced. If you haven’t already read my articles on Performance royalties and copyright, as well as Photocopies and “fair use,” you may find them helpful in understanding these issues. Today’s article covers audio recording licenses; I’ll write another time about video recording, as well as broadcasting via YouTube or other media.
Read here about:
• Mechanical licenses
• Harry Fox and other clearing agencies
• Adapting to license requirements
Please note that I’m not an attorney, and this article doesn’t constitute legal advice. The purpose is to share my own experience and research with you, one handbell musician to another. There are many aspects of this law, including digital vs. physical copies, U.S. vs. international production, interactive streaming, etc., that are outside the scope of this article. If you need help understanding how copyright law applies to your situation, consult an intellectual property attorney who can properly advise you about this complex legal specialty.
Audio recordings are subject to what is called a “mechanical” license. Under copyright law, this is a compulsory license if the copyright holder has exercised the “right of first recording.” The license fee is set at a statutory rate. What that means:
• You can’t record a work that hasn’t been recorded before, unless you own the copyright, or have the copyright holder’s permission.
• If the work has already been recorded and distributed, you have a legal right to record it too, provided you pay the required fees.
• The maximum amount you have to pay is set by law.
There are three types of audio recordings a handbell musician is likely to make:
• compact disc (CDs) for distribution, like a concert or Christmas CD
• rehearsal tracks
• a copy of a live performance for archiving and training purposes, or as an audition tape
You may think of this as recordings you want the public to hear, vs. recordings made for your personal use to improve as a musician. Note that here we’re talking about a recording of your own performance, not a copy of someone else’s recording. Using someone else’s recording within your own (e.g. a backing track) requires a “master recording license,” which is outside the scope of this article. If you want to use it for any other public purpose, like performance or posting to YouTube, that also requires permissions that are outside the scope of this article. If you want to use someone else’s recording as a rehearsal track, that will be covered below.
Public recordings might take the form of a physical disc, or be distributed online, through iTunes or some other distributor. Although the process of recording a handbell CD is complex, obtaining the legal right to do so is fairly straightforward. Just as many publishers use a central agency (ASCAP or another PRO [performing rights organization]) to collect performing royalties, several agencies exist to clear mechanical license fees. When you pay any of these agencies, they pay royalties to the publisher, which then shares them with the composer according to the formula agreed upon when the composer assigned the copyright to the publisher.
The best-known of these clearing agencies is Harry Fox. You can research songs through their website database Songfile. Though not a hard and fast rule, you’re more likely to find works published by major handbell publishers like Hope/Agape covered by Harry Fox, but not works published by smaller solo handbell publishers. You may find works by someone with a common name, like Christine Anderson, more easily if you search for her collaborators, like Anna Laura Page or Daniel Kramlich.
Easy Song Licensing is another clearinghouse that works much like Harry Fox. Churches and ministries can also engage PERMISSIONSplus (through Copyright Community), OneLicense, CCLI, or another clearing agency to secure copyright clearances. Remember that handbell music is sometimes excluded from blanket licensing agreements, so be sure to ask. Also check that the services you need are provided by the agency you choose. For example, the CCLI rehearsal license grants permission to copy others’ recordings as rehearsal tracks, but not to make your own recording. OneLicense covers both.
If you find what you’re looking for on the Harry Fox (or other agency) website, you can obtain a mechanical license through them. Register as a user (or become a licensee, if planning a large run of more than 2,500 copies), follow their instructions, pay your bill, and there you go. If you don’t find what you’re looking for in Songfile, don’t assume you don’t have to pay for recording rights. It just means you have to contact the copyright holders, either directly or through one of the other agencies, to obtain a license. You can find the copyright holder by looking at the sheet music you have; there should be a copyright notice with this information at the bottom of the first page of music. Generally, it’s the publisher, but sometimes composers retain the copyright.
Even if you aren’t selling the CD, making an audio version of a copyrighted score requires a mechanical license. There’s no exemption for audition tapes or recordings given away to friends or family, or for small runs. Also note that a digital download requires a separate license from a physical CD, though you can register it in the same way.
According to the Harry Fox website, the current statutory mechanical royalty rate is 9.1 cents per song per unit for recordings of compositions up to five minutes in length. For songs over five minutes in length, the rate is 1.75 cents per minute, rounded up to the next minute. So you pay based on how many copies of the song you make, and how long the song is, if it’s more than 5 minutes long. If your CD contains 15 songs of less than 5 minutes each, that means the mechanical royalties will cost $1.365 per CD. Harry Fox policy is to charge for a minimum of 25 copies of each song, plus a processing fee of $16 per song ($14 if you license 5 or more songs through them in a single transaction). If you’re creating a medley (not just playing a published medley), you need to license each of the songs.
Consider paying for more copies than you currently require. Then, if the run sells out, you can burn more copies under the previous license. Sketch out some possible scenarios, balancing the administrative costs against the extra licensing fees, and see what approach costs the least.
In theory, you may be able to negotiate a reduced rate, or even obtain recording rights gratis, from the copyright holder. Harry Fox needs this information in writing from the copyright holder to issue your license, which is still required (assuming the copyrighter holder works with Harry Fox). As a practical matter, a publisher who has given you permission to create a free recording is unlikely to pursue you later, unless they feel the amount they can recover will justify the legal fees involved. If you have requested and received this permission in writing, even in an email, you’re probably OK. Handbell publishers and composers tend not to enforce their rights against copyright infringers, but it’s always best to ask permission.
Start this process early, as part of the overall planning for your recording project. You want to be sure you plan to use the work, know how long it runs, and have a projected release date to provide to Harry Fox. However, if you have difficulty getting permission for any reason, it could delay your project. Note that Harry Fox doesn’t handle synchronization (video) rights, reproducing music and/or lyrics in print, performance rights, master use rights, or arrangement rights. For all of these, you would contact the owner of the rights (such as the publisher) directly, or the designated agency (like ASCAP), or one of the broader agencies (like OneLicense).
Rehearsal tracks – Sometimes it makes more sense to use an existing rehearsal track than to create your own. If a publisher’s demo recording exists, which is likely for bell choir pieces published in recent years, you can listen to it several ways.
• Check the publisher’s catalog, which you (or your handbell director) may have on file. The catalog usually contains a CD of all the pieces promoted in that issue.
• Listen online at the Jeffers website (handbellworld.com). Go to the Music Selection Assistant, and type in whatever information you have (composer, arrange, title, or whatever). When you find the work, if there’s a bell symbol next to it, that’s a sound file. Click on it and listen. If you have a Mac, you’ll need to download the Windows MediaPlayer from the Articles/FAQ section of the Jeffers site, or else listen on a Windows computer.
• Many of the other publishers of solo music, like STEP and From the Top, include sound files on their websites. If your computer is near your bell table, you can listen to them and play along.
A flexible way to obtain handbell demo CDs is through a small business run by Alanna Teragawa, myURB.com. You email her a list of the pieces you’re looking for. Provide as much information as you can, such as the publisher and arranger along with the title. Alanna will burn the number of CDs you request, mail them to you, and pay the royalties due the publisher. This is a great service, especially if you plan pieces for the whole year at the beginning of the season, and if you have multiple discs sent to a single address. The last time I ordered from Alanna, it worked out to about $5 per CD for up to 15 pieces of music. The pricing varies, with the costs front-loaded for the first CD, because Alanna pays for royalties in a block. Note that Alanna doesn’t do custom recordings; she copies what publishers have provided as demos. She can also send sound files to overseas buyers, to save on postage.
Handbell soloists often need an accompaniment track for individual practice. This isn’t exempt from the requirement for a mechanical license, though copyright holders will often grant permission if you ask. Sometimes the soloist who arranged the piece is willing to share her accompaniment track; contact her and ask. Some of Christine Anderson’s accompaniment tracks have been published in CD form by Hope Publishing. I’ve found recorded accompaniments in books of music published for other instruments or voice, and even on iTunes. It would certainly be legal to use these in rehearsing a piece on solo bells. Using the rehearsal track in public performance, or even adapting the score for solo bells (if written for another instrument), would require permission from the copyright holder.
I found the following information on the MTNA website : “A music instructor may make a single copy of a recording of performances by students for the purpose of evaluation or rehearsal. That copy may be retained by the teacher. However, no more than a single copy may be made and retained. If multiple copies of the performance are made, the permission of the copyright holder would be required.” I’ve been unable to locate a legal reference for this, but have seen this information on various educational sites. It’s not clear to me whether this “single copy” exemption applies only in an educational institution, or for a community or church handbell choir as well. Clearly, though, recording a handbell choir and making a copy for each member would trigger the need for licenses.
You may feel like this is an excessive legal and expense burden. However, bear in mind that recording license fees are one of several payment streams needed to compensate handbell composers and publishers for what they do. I think of it this way: An employee’s compensation consists of wages, paid time off, and benefits. If an employer suddenly stopped paying for one of them, it would create a problem for the employee. The structure of a composer’s compensation is different, but the principle’s the same.
Note: all web addresses are maintained on the Links page.
U.S. Copyright Law
Christian Copyright Licensing International
Copyright Community – copyright resources for the Christian arts community
Easy Song Licensing
Harry Fox agency
Music Publishers’ Association – see their Copyright Resource Center for a directory of publisher addresses, FAQ, and links to other copyright resources
Music Teachers National Association
MyURB – source of demo recordings
National Association for Music Education (formerly Music Educators National Conference)
Copyright © 2012 Nancy Kirkner, handbells.com