Need help with some legal stuff.

Sounds like they're just covering themselves in case someone makes a stink over you playing one of their songs. It's just releasing them from any liability. Personally I wouldn't worry about it. I doubt you'll get sued for playing a Jimi Hendrix cover at a festival...

 

Yeah, sounds like they're just being smart and covering their own liability in case any legal actions are brought against you regarding the material you play at their event

 

Long story short... That's their disclaimer saying that you take full responsibility if any artist, agency, label, whoever, decides to come after you for playing their copyright material (Ie. Covers). Does this mean you'll get in trouble for playing "Freebird"? No way to tell...

I can say this, once a week, my band (and thousands and thousands of others) break 30-50 copyright laws a night. Will we ever get in trouble for playig those covers? Most likely not unless some executive happens to be sitting in the bar and hears us play a song he owns lol. But, the chances of playing covers goes up exponentially with the venue/crowd size. If suddenly you're not playing for 200 people in a bar, and you're playing in front of 2000 at a festival that has artists and reps and labels there, it's not outside a concern to think that there is some a-hole that might say something or complain to someone... While on a whole there are a crap-ton of people that are all about the music and wouldn't care, there is always one dill weed that can't help himself but to cause trouble for someone.

So I'd say tread VERY carefully and walk the thin ice depending on the venue/size/environment you're playing. But your contract is basically saying that their finger is pointing at you already when the BMI, ASCAP and SESAC coming walk on the property, they COULD ding you.

Now, the converse to that is, most bars, venues, or otherwise DO pay an anual comprehensive license to playback music (Radio, jukebox, Streams, ect) and most times that will cover the performers there too. However, those comprehensive licenses are expensive, and CHANCES are, the festival guys don't or won't be paying for that, hence the disclaimer covering their asses.

Just some thoughts!

 

Venues are generally responsible for any royalties due for performance of copyrighted material. Sounds like they haven't paid their fees to BMI and ASCAP and are trying to shift the responsibility to the bands. I don't think they can do that, but I'm not a lawyer.
I don't know what the sentence "The artist represent and warrant that they are knowledgeable about copyright laws as applicable to the performance and they shall not perform any copyrighted material of others during performance without full compliance with such applicable copyright laws." is supposed to mean, but to my knowledge, it is the venue that needs to be in compliance.
I would play it safe and play an original set, or peruse your covers for "public domain" songs. They may try to use that clause in action against you if they get sued by the publishing companies, because it is the venue (or promoters) they will go after.

 

It's all about ASCAP/BMI, and they do go around to venues that haven't paid royalties. Live music is one thing, but releasing presumably at a price, video of copyrighted songs is potentially a much bigger problem.

 

Play originals only. That's what you want to promote anyway. You will be sure to be represented by your own material. Make sure you limit THEIR license to sell your work. Talk to a attorney experienced at music and copyright laws, or at least read up about mechanical rights.

 

My understanding is also that it's the venue that's on the hook and putting a clause in your contract doesn't change the law. It's a feeble attempt to redirect the focus to you.

Of course if you DO play any "copyrighted material", even if ASCAP doesn't make a stink, you could still piss off the promoters enough that you won't be invited back again.

Oh and if you're truly concerned about this, you should be speaking with a real lawyer as opposed to a bunch of anonymous musicians on the Internet.

Me, I'd just play it safe and stick with all originals. Especially if they're gonna be selling copies of the recording - don't take chances.

 

Play the originals. If the covers are done in your own style, and important to how you represent your act, then write to the owners of the rights and request permission to play the songs for that specific show. They're not likely to give you free permission, but they will either write back and deny you permission entirely or attempt to negotiate a fee where you are paying them a royalty to be allowed to perform the song. Either way they respond, you'll know where you stand going forward.

Writing to request permission to reprint is something I frequently do when putting together newsletters. This ensures that everyone's on the same page and takes the risk of incurring fees and litigation out of the picture because it clarifies the rules of engagement.

 

^^ THAT'S a great point. ^^

 

Exactly, based on that info, play orig and make them sign a disclaimer that they can't use your material without giving credit and identification, ect. There is PLENTY of people out there to speak to. Talk to any local firm and I'm sure they'd be glad to help or even file the copyright for you.

 

Where are you located? You may be able to find attorneys who are willing to do low-cost or no-cost consultations on this type of question. For example, in Philadelphia, there is a group called Volunteer Lawyers for the Arts which offers pro-bono and low cost legal assistance to artists and arts and cultural organizations. You may be able to find a similar organization in your area.

 

I thought there was a certain "age" where a given song becomes public domain. I heard it was 40 years. If so, y'all could could do some 60's covers. BUT DONT HOLD ME TO THIS.. i could be completely mistaken.

 

Thats along the lines of what I was thinking as well.

 

You are mistaken. The general rule is that copyright protection lasts for 70 years from the last surviving author's death.

Everyone should read this before posting: http://www.copyright.gov/circs/circ01.pdf

From that publication:

 

Play originals or don't sign the paper. They are trying to lay the ASCAP fees on you.

 

This is the one part that’s a little worrisome. You aren’t going to get sued for playing a LIVE cover at a festival (absent some really unusual facts or situation), but RECORDED songs released for commercial exploitation is a different matter.

Let’s “set the stage,” so to speak. Yes, I know that was corny.

Copyright law gives the copyright owner of the musical composition the exclusive right of “public performance.” Basically, a public performance is one that occurs either in a public place or any place where people gather and is transmitted to the public. Accordingly, if you perform music publicly, then you need permission.

For various reasons, it is usually the venue/bar owner that gets the permission, but the law says all who participate in, or are responsible for, performances of the music are legally responsible. One way of getting permission for a public performance of a musical composition is through ASCAP/BMI/SESAC. However, those same organizations are not in a position to grant permission with respect to recorded performances (i.e., like the one necessary for the quoted language above).

Another thing to consider is that the party who commits the infringing act is the one that will be held liable for copyright damages. For example, if the concert promoter records the band and releases a compilation CD or video, it is the promoter who is committing copyright infringement (e.g., the right to distribute copies). It’s not the artist. One reason that contractual language is there is so the promoter can come back to the artist and say “hey, your agreement with us said it was okay for us to record and release your performances, but since you didn’t get permission from the music publisher and now we’re getting sued, you’re going to indemnify us for any damages that we incur because your agreement said you “represent and warrant” that we could do this.” Or something along those lines. Of course, if you have no money or real assets, the indemnity you gave them doesn’t do them much good. That is, you’d be called “judgment proof” in my world because you can’t get blood from a stone, or turnip, or whatever saying you want to insert. Doesn’t mean you won’t suffer some trouble, but few people are going to spend litigation type money to chase people who have no money or assets to chase.

If you don’t mind them recording your original material, then just have the contract exclude musical compositions not owned or controlled by the band.

Are you the only act that’s doing covers? If so, then it’s probably on you to deal with. If not, discuss it with the promoter and see how other bands/artists are dealing with it.

Best,
MA

 

I stand corrected. Well, they could always throw in a coupla Glenn Miller and Tommy Dorsey tunes!

 

Depending on how important the performance is, I'd ask them to clarify this clause. Remember, contracts can be negotiated. Perhaps they would agree to remove that clause if you insist on adding a clause that protects your material?