Cover bands and legal issues

[optikhog]

What about playing venues like schools or church dances? Who has a license there? I doubt the church down the street will have one, or the school.

It's typically the responsibility of the establishment and/or promoters. Note that prosecuting a church for a cover tune would be bad PR for the RIAA, so the likelyhood is even smaller IMHO.

I should note that most churches I'm aware of *do* have blanket coverage in order to perform/print words to many modern worship tunes.

 

[lowb1970]

What about playing venues like schools or church dances? Who has a license there? I doubt the church down the street will have one, or the school.

Good question. I was going to ask about weddings. When your band gets hired for a wedding reception who has the license there? If you play 4 sets of music for the reception how do you go about "legally" ensuring the gig is politically correct in the eyes of ASCAP, BMI, ...ect? Most receptions that I've been to aren't at local bars, or clubs, but mostly rented out facilities or people's homes. Where can you look this information up to get "informed"?

 

[GreggBummer]

Neat topic.

Full disclosure: I play in a cover band and I work at a non-commercial radio station.

Intellectual licensing is a thorny issue. I have a friend of mine who is a copy write lawyer (I forwarded him this link). He has told me repeatedly, that the basis for this kind of law is permission. If you have permission- you can do what you want.

That being said, the record companies and artists have better things to do than hang out at Joe's Dive Bar and wait for me to play a U2 cover. If anything, it is free advertisement for Bono and the Gang. Which sells records and concert tickets. If you make the bar a $2500 bar tab and take home $300 or $400 dollars... it is a drop in the bucket.

It becomes a different story when you record a cover. Now the legal eagles become involved because it isn't just about the money you make- but about the potential money to be made. If you get popular from your cover of that New Kids On The Block song... you may have a legal problem. And a taste problem too- but that is a different thread.

I remember reading an article in which James Hetfield walked into a bar with a some friends after Ride The Lightning came out. He said that there was a cover band there and they played a cover of "Creeping Death". He said he felt like he had "made it" because someone else was playing his music. If I can find the article I will post it in this thread.

I don't know how this all works overseas. Clearly there are different rules but I think that the spirit of it is probably similar.

 

[invader3k]

My understanding is that the venues who are actually "gone after" for not paying are usually in bigger markets, and advertise their shows. I had a professor in college who said that ASCAP/BMI/whoever pays people in cities who usually check out the newspapers and local music publications, and they go after any venues they see advertising cover bands who haven't paid up.

 

[TL5]

I think that the number of venues who are contacted regarding a lack of a license is more common than many in this thread think.
I believe that MOST of the time it's handled discretely.

On other music forums, I've seen it mentioned several times that bars/clubs had closed or were in trouble with BMI or ASCAP concerning performance license.

I'm not a lawyer - but the question has been raised concerning wedding receptions at homes.. I believe that would be considered a "private" event and not a "public performance" - but I could be wrong.

 

[OtterOnBass]

You bet churches have to pay for their music licensing! If you've attended a service with powerpoint on a screen you'll have noticed they included the licensing info for every song on the slide.

As for weddings... wouldn't that fall under the venue again? Reception halls, churches, wherever?

 

[jmac]

I remember the issue of cover bands being discussed around the explosion of the napster law suits.

Basically, a band and or label could sue a cover band. However, they're not losing record sales and if anything possible gaining some sales by the 'advertisement' of the music by the cover band. Now if the cover band recorded the songs and sold the recording, that is a different animal altogether.

So if you're in a cover band feel safe as long as you don't try to sell any recordings of copy protected music.

 

[Febs]

Basically, a band and or label could sue a cover band. However, they're not losing record sales and if anything possible gaining some sales by the 'advertisement' of the music by the cover band.

No, but they are losing revenue that they are entitled to from the public performance of a copyrighted work. ASCAP and BMI can and do enforce these rights. As noted previously in this thread, it is generally the responsibility of the promoter or sponsor of a performance, rather than the band, to obtain the appropriate license. But it is wrong to assume that liability turns on whether there is a recording made.

 

[scourge]

And then she said: "Well, it's not right to play songs written by other people and it's also illegal!” :scowl:

She must have a problem with just about every band ever. Since everyone has performed a cover song sometime in their career. Beatles, Hendrix, Prince, etc etc.

 

[5andFretless]

So a slightly different take on the question - Are you violating the law if you post a video or audio file on youtube or myspace of your band in a bar covering a song? Are you violating either web sites copyright rules?

Nearly all working cover bands have one or both.

 

[Fnord Explorer]

While it's true that venues have to have licenses to play copyrighted music, it's NOT true that those without don't get in trouble for it. Businesses such as doctor's office waiting rooms to businesses where employees' personal radios could be heard by customers, to restaurants playing music in the dining area have been targeted in Federal lawsuits for playing music without paying. It doesn't happen to all of them but it DOES happen. Hell, you could feasibly be sued for busking cover tunes on a street corner. I haven't heard that one yet. Yet.

It's right up there with an IRS agent busting a band for selling merch at a gig and not paying taxes on it. It HAS happened. It's a crapshoot but almost any bar or venue pays these fees.

 

[not_jason]

So a slightly different take on the question - Are you violating the law if you post a video or audio file on youtube or myspace of your band in a bar covering a song? Are you violating either web sites copyright rules?

Nearly all working cover bands have one or both.

Both Youtube and Myspace state clearly on their upload pages that you must own the rights to the content your uploading. So far as I could tell, that would extend to the song you were playing. I could be wrong about that, but it makes sense to me.

 

[black_labb]

i assume these laws are for anyone profiting from the song (not just money, things like adding to a shops atmosphere and other things that help the venue/shop/whatever seem more interesting ect).

for example, could a family be prosecuted for singing happy birthday? and if a band sang happy birthday with instruments? what is the difference in the courtroom. is it as long as the band doesnt get paid/promotion/some gain by playing it.

 

[open_space]

Thank you all for the input! I couldn't even imagine that it's THAT serious! Excellent topic!

As far as I can tell around here (Belarus, ex-USSR) no one really cares about copyright protection and no one will get in trouble for playing cover songs. If that would be the case, a lot of bands here who play in bars and restaurants, weddings (play covers mostly because that's what they are hired for) would be out of work.

I can tell you more: sometimes you will hear a song on the radio which is a local version of some popular English or American song but with different lyrics (not even translated, just different Russian lyrics). Some artists say that it's a cover (although by some people it can be perceived as original piece since the lyrics are different). But some don't!

At the same time cover bands are profiting from playing covers since they are getting paid for playing but they won't do original music (some will of course, but how often are they asked to do it?). So it looks like you could get sued in the US. Also, one of my friends played a few clubs in Germany last year and when I asked him about covers he told me that covers were not allowed where they played. Go figure.

It's really interesting how the basis for intellectual licensing is all about permission. But what can you do? If I want to cover a Maroon 5 song, do I just send them an email and ask permission?

 

[Febs]

for example, could a family be prosecuted for singing happy birthday? and if a band sang happy birthday with instruments? what is the difference in the courtroom. is it as long as the band doesnt get paid/promotion/some gain by playing it.

The difference is in whether the copyright work is "performed publicly."

Section 106 of the Copyright Act identifies the "exclusive rights" that a copyright holder has in a musical composition (or any other copyrighted work). Among other things, section 106 says that "the owner of copyright ... has the exclusive rights to do and to authorize any of the following ... (4) in the case of ... musical ... works, ... to perform the copyrighted work publicly."

What does it mean to perform a copyrighted work "publicly"? That is defined is section 101 of the Act: "To perform or display a work 'publicly' means ... to perform or display it at a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered ...."

Thus, the performance of a copyrighted work in a bar, which is "a place open to the public" is a right that is specifically reserved to the copyright holder, and if that performance is not expressly permitted by the copyright holder, it may be an infringement under the Copyright Act. The performance of a copyrighted work in one's house at a birthday party consisting entirely of a "normal circle of a family and its social acquaintances," on the other hand, is not a an exclusive right that is reserved to the copyright holder because it is not a public performance.

One thing that is worth noting is that the Copyright Act grants the copyright holder the exclusive right "to perform the copyrighted work publicly." That right is not defined in terms of whether the work is being performed for a profit or not. At least in section 106, the Copyright Act does not make any distinction between the performance of a copyrighted work publicly for free and the performance of a copyrighted work publicly for a profit or for some other commercial purpose. Section 107 of the Copyright Act contains the "Fair Use" exception, which does take into account whether the use of the copyrighted work is for a commercial purpose, but that is just one of four factors that are evaluated in determining whether something is "fair use."

Note that all of this assumes that we are talking about the United States Copyright Act.

 

[Bassngtr]

I've noticed over the past several years that restaurants never sing the original 'Happy Birthday' anymore and use a different version.

I assumed this was because of copyrights being more heavily enforced.

Can anyone confirm or deny this?

(btw: James Hetfield thought it was cool...Lars probably would have started a brawl with the band.)

 

[Depth_Charge]

I sent an email to an APRA representative here is Australia asking the question about playing covers and his response was short and sharp:

"Licensing is the responsibility of the venue, not the band".

Given the email was from APRA, that will do me and my cover band

 

[WayneS]

When you think about it that way though man, the law is the law, you can legally still be held liable for going 1mph over the speed limit, it would just constitute an ******* cop.

Not to change the subject but...

Actually thats not true. Radar detectors are not accurate. There is a small degree of randomness added to the speed that the radar reports. From my police friends around here, they say you are allowed 6MPH over the speed limit to compensate for the small inaccuracies of the detector.