Performance royalties (ASCAP) and copyright

Most copyrighted music has a notation “All rights reserved,” or something similar. Copyright law assigns numerous rights exclusively to the copyright holder, including the right to perform the work publicly. Of course, composers want you to perform their published works, since you have little reason to buy sheet music otherwise. However, royalties are owed to the copyright holder whenever copyrighted music is performed in public. Just buying sheet music isn’t sufficient.

Read here about:

• How to determine whether royalties are owed
• Who must pay performing royalties
• How, when, and where to pay the royalties

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. 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. Relying on off-the-cuff advice from your brother-in-law who happens to be an attorney makes as much sense as asking your sister who’s a veterinarian to remove your appendix in the kitchen.

What triggers performance royalties?: While not a comprehensive list, here are some typical handbell performances that would require royalty payments:

• Concert at a church (not covered by the worship exemption)
• Concert at a retirement home (considered a public place, not a private home)
• Performance at a handbell conference, such as a showcase concert, even if in a school gymnasium or auditorium (not covered by the education exemption)
• Performance in any other public place, such as a museum, city hall, Christmas tree lighting, music festival, restaurant, school, caroling, busking, etc.

Assume you must pay performance royalties unless you can identify a specific exemption. There are situations where copyright law permits music performance without paying royalties. These are the ones most likely to apply to a handbell group:

• In the course of worship
• In private, such as at home or within a family or social circle. This includes private practice and rehearsals.
• Music in the public domain (music whose copyright has expired, or which has been given to the public through something like Creative Commons)
• Where the copyright holder has given permission (preferably in writing) for performance without royalty payment
• Concerts presented at a school by students and teachers of that school. Certain conditions must be met, which you can research if this situation applies to you.
• Where there is no payment to the performers, promoters, or organizers – no money changes hands. If you pay a guest violinist to perform with your handbell group, say, or you use a paid accompanist, that performance is no longer exempt. Another situation to beware of: a small ensemble uses your group name to play for a wedding or other event, and pockets the honorarium.
• Where there is no payment to the performers, promoters, or organizers and either a) there is no admission charge or b) the net proceeds are used exclusively for educational, religious, or charitable purposes.

Most of the above situations are self-explanatory, though there are some gray areas. According to ASCAP, in the last situation listed, royalties would be owed if the beneficiary is the handbell choir itself, regardless of non-profit status. If the beneficiary is a recognized and unrelated charity like a food bank, it would qualify for a reduced royalty rate as a benefit concert. ASCAP may be interpreting copyright law too aggressively in its own favor. If you’re claiming an exemption when money changes hands, you’d be wise to consult an intellectual property attorney about the specifics of your situation.

Public domain: Though the laws are complicated, in general, music first published in the United States:

• before 1923 – probably in the public domain
• 1923-1989 – must be researched to see if still under copyright
• after March 1, 1989 – under copyright, probably for our lifetimes

Music published specifically for handbells is unlikely to be in the public domain, since so much of it dates from recent years. Most published handbell music contains a copyright notice at the bottom of the first page, showing the date of publication and copyright owner. It may also indicate which performing rights organization (PRO) the composer belongs to, after the composer’s name (for example, ASCAP). Remember that a handbell arrangement of a work in the public domain may still be under copyright. For example, Bach’s ‘Sheep May Safely Graze’ is in the public domain. The solo handbell arrangement by Christine Anderson and Daniel Kramlich is under copyright.

Researching repertoire status: If you’re performing from music not written for handbells (like a piano score), you can research its status in several ways. This situation constitutes an adaptation, which requires permission from the copyright holder, if any.

• ASCAP (American Society of Composers and Publishers) maintains a searchable database on its website called ACE, listing copyrighted works covered by the ASCAP license. You can also use this to identify whether a particular instrumentation you’re interested in has been arranged.
• BMI (Broadcast Music Inc.) and SESAC also maintain searchable databases of the copyrights they administer.
• The Petrucci database at the International Music Score Library Project has information and actual scores of public domain music online. The catch is that it’s not comprehensive; it contains only what volunteers have uploaded. However, an editor checks whether the uploads really are in the public domain before they go online, and the site states which jurisdictions consider the work public domain. It includes a list of other websites with online public domain scores, as well as a comprehensive listing of composers with information about whether their works are likely to be in the public domain or still under copyright.
• Cornell University Library maintains an online “Copyright Term Matrix” to determine copyright status based on year of publication and other factors.
• You can also research copyrights through the U.S. copyright office. This isn’t foolproof, as composers or publishers can hold a valid copyright without registration, and records of older copyrights may not be online.

Fair use: There’s a lot of misinformation surrounding the concept of “fair use.” “Fair use” doesn’t mean that if a use seems “fair,” copyright law doesn’t apply. “Fair use” is a narrow legal term that permits quoting from a book in a book review, or writing a parody, or something similar. There are several factors I’ll discuss in a separate article, but the key point is this: Fair use never applies to performance of an entire musical work. Performance royalties are still owed.

About PROs: ASCAP is a central organization that collects performance royalties and distributes them to copyright holders (composers and publishers , just like the name says). This is obviously a more efficient mechanism than having millions of individual performers pay thousands of individual composers or publishers for every performance. ASCAP members are copyright holders: composers and publishers. ASCAP licensees are performers, promoters, and venues. The system relies largely on self-reporting and trust, with the threat of owing back fees, plus interest (or worse) if you’re caught in noncompliance.

There are other performing rights organizations besides ASCAP, such as BMI and SESAC. You’re less likely to run into those, but be aware of the possibility. BMI and SESAC have their own databases online, on their websites, and you can contact them about licensing. Works performed in the context of a dramatic production, like an opera or musical theater, are subject to grand rights, which you would purchase from the copyright holder.

Sometimes a composer may make unpublished original works (or arrangements of public domain material) available for you to perform. You would negotiate and pay royalties directly to that composer. In my experience, unpublished handbell composers are eager to have their work performed, and have been willing to grant me performance rights without royalties. In return, they may appreciate a recording, or an offer of help with editing the piece for publication. And of course you would acknowledge from the stage any composer in the audience when you perform his or her piece.

Who pays the royalties?: In general, the performance venue holds a “site license” and pays royalties according to the terms of the venue’s contract with ASCAP. The only way to find out whether a venue holds an ASCAP license is to ask the venue. It’s not public information, though sometimes you’ll see an ASCAP decal displayed. Sometimes a location, like a retirement home or restaurant in a national chain, will be covered by a blanket license at headquarters. If you perform in a symphony hall, they will probably have an ASCAP license.

As handbell musicians, we may perform at places like churches that don’t have their own ASCAP license. Though a venue ought to have this license to cover certain music performances, we’re not usually in a position to dictate terms. For a handbell group, especially a community group, our concert venue is often a church attended by one or more of the handbell musicians. Failing to pay the royalties for your concert might create a problem for the hosting church. Would you want to jeopardize your ability to hold a concert in that venue in the future? or embarrass your handbell colleague?

If you’re a church music director, you’re in a position to help your church fulfill its legal obligations. Organizations often believe that their tax-exempt 501(c)3 status excuses them from paying royalties and other legal obligations, but that’s wishful thinking. Performance licensing services (like CCLI) are available to churches.

ASCAP can, and sometimes does, pursue performers if the venue doesn’t pay. An attorney told me that no one should assume ASCAP won’t bother going after them; they’ll go after anyone who comes to their attention. I decided to obtain my own ASCAP license and pay the royalties myself, to ensure that my performances comply with the law, to protect myself and my performing partners from possible legal action, and to fulfill promises made to publishers who granted me arrangement rights for music. The way I look at it, we can’t have it both ways. We can’t say we want to be taken seriously as handbell musicians, then fly under the radar to avoid rules that other musicians have to follow.

The good news is that sometimes someone else will pay royalties on your behalf. If you’re participating in a Handbell Musicians of America sponsored or endorsed event, the Guild will pay performance royalties, provided the event organizers submit the necessary information on time. I’ve heard that members of the other national music organizations can have their public performances covered. If you belong to any such group, you might ask whether it will pay the royalties for your handbell performances, and how to report them.

How it works: To obtain an ASCAP license, call and ask for the type of license that best fits your situation. For example, the “per program license” has an annual minimum of $34. You pay 1.2% of gross proceeds from each concert, or $19 for a free or benefit concert, all of which goes toward fulfilling the annual minimum fee. These payments cover all the ASCAP-represented music performed in the concert, whether it’s one piece or fifteen. Another license available has an annual minimum of $235. For that, you pay a lower percentage (.8%) for each performance, and free or benefit performances are only $10. To put it another way, if you obtain the second license, you can take in over $29,000 before you reach the $235 minimum and have to pay more. If you’re a community choir, you’re probably better off with the $34 minimum license. If you give 8 concerts per year and average $1,000 per concert, the ASCAP fee would cost just under $100 per year.

When you call ASCAP to arrange for your license, have the following information available:

• Is your typical venue capacity less than 2,500 seats? The percentage rate you pay is partly determined by the size of the venue.
• What are the annual proceeds of your concerts (gross admission revenue, whether ticket proceeds or donations)?
• How many free or benefit concerts do you give each year? Remember that some of these may be exempt or qualify for a flat royalty.

ASCAP will send you a short contract, which you sign and send back. You’ll receive a password to log onto the ASCAP system, and perhaps a manual reporting form as well. Each reporting period (quarterly in my case), you’ll log onto the ASCAP website and file your report. The information needed is:

• Date of performance
• Location
• Name of performers
• Seating capacity (an estimate, e.g. audience head count, works for smaller venues)
• Gross revenue

You can save drafts of the form as you go through the quarter, or fill it all in just before the deadline (15 days after the end of each calendar quarter), and submit it online. If you prefer, you can fill out a paper form and mail it in. Keep good supporting records, as ASCAP reserves the right to audit licensees.

You also have the option to send your concert programs as a file in various forms, like .doc or .pdf. I always do this, and I include copyright notices on the program as a footnote. That helps the composer get credit for that performance of his/her work, rather than sharing in a huge pool of royalties allocated by formula. I don’t know what the formula is, but I doubt it favors our beloved handbell composers!

Composers appreciate an email from you any time you perform their work, even in an exempt situation like a church service. (You can find contact information by Googling them, looking them up in the Guild directory, contacting the publisher, or asking on one of the online handbell discussion sites.) They can file an annual report documenting all performances of their work, and qualify for an annual supplement called the ASCAP Plus award. Some composers actively comb the Internet looking for evidence their work has been performed, so they can submit it for this extra compensation.

Be careful about relying on what ASCAP tells you over the phone. I’ve gotten conflicting information depending on who answers the call. If someone at ASCAP tells you a given situation is exempt, ask them to put it in writing or point you to the specific authority. If you consult an attorney, ask to receive his or her advice in writing on the firm’s letterhead.

Payment to ASCAP covers only live public performance of music. It doesn’t give you the right to record the work, whether on audio or video, or to broadcast it in any way, including on your website or YouTube. There are separate permissions and fees required for that, which I’ll address in another article. Remember that copyright applies not only to music, but to other works you might include in your performance, like poems or stories you may use to cover setup time, or song lyrics in your printed program. ASCAP handles only music. If you use non-musical works under copyright, seek permission directly from the copyright holder.

Note: all web addresses are maintained on the Links page.

U.S. Copyright Law – see especially Ch 1 Sec 106 (Exclusive rights in copyrighted works) and Ch 1 Sec 110 (Limitations on exclusive rights: Exemption of certain performances and displays)
ASCAP – 1-800-652-7227 (in New York)
CCLI – Christian Copyright Licensing International
Cornell Copyright Term Matrix
Music Teachers National Association
Music Publishers’ Association – see their Copyright Resource Center for a directory of publisher addresses, FAQ, and links to other copyright resources
National Association for Music Education (formerly Music Educators National Conference)
Petrucci/International Music Score Library Project

Copyright © 2012 Nancy Kirkner,