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Responsibility for license?

Dominic D

Dominic D

DiCosimo Audio
Commercial User
Mar 9, 2008
2,260
3,388
Deltona, Florida
dicosimoaudio.com
Disclosures
DiCosimo Audio
#1
PROBLEM RESOLVED!

I'm in a fairly new country band that's starting to get some really good gigs. We recently got asked to be the house band for a big country festival that will happen next year. I personally know one of the main people running it and trust her very much. My band leader just forwarded me the contract and there's one part I'm not sure about:

"Indemnify for Copyright Infringement: ARTIST(s) represent and warrant
that they are knowledgeable about the copyright laws of the United States as
applicable to the Performance. ARTIST(s) shall not perform any copyrighted
materials of others during Performance without full compliance with such
applicable copyright laws. In the event that ARTIST(s) breaches this
representation, warranty and covenant, ARTIST(s) hereby agree to INDEMNIFY
AND HOLD HARMLESS BUYER and its employees, guests and agents from and
against all liability, loss, damages, claims, and expenses (including attorney's
fees) arising out of said breach."

We are primarily a cover band so this would be an issue for us. I've always been under the assumption that the venues, not the musicians, are responsible for obtaining the license. I went to the ASCAP website and found this in the FAQ:

"Some people mistakenly assume that musicians and entertainers must obtain licenses to perform copyrighted music or that businesses where music is performed can shift their responsibility to musicians or entertainers. The law says all who participate in, or are responsible for, performances of music are legally responsible. Since it is the business owner who obtains the ultimate benefit from the performance, it is the business owner who obtains the license. Music license fees are one of the many costs of doing business."

That seems to confirm what I thought. I know that this definitely applies to bars, but I don't know if a festival would be handle differently. This is the first time we've had to sign a contract for a gig, so we have pretty much no experience with this. The people that we are working with have been running a very successful gun show for years, but I don't know if they have much experience with live music.

What do you guys think? Are they in their right to put that in the contact, or should they be held responsible to get the licence?
 
#3
lancimouspitt said:
I may be way off here and I hope someone corrects me if i'm wrong but I thought their was a law about live music that you could play whatever you wanted live,so long as you didn't profit from the performance?
Click to expand...

Since the band members are getting paid for the performance I would think the lawyers would say you are are profiting from said performance. OTH, on matters like this, it has been my experience not to ask for permission and just do it. If ever caught then beg for forgiveness later. So far that has worked quit well.
 
#4
ChrisB2 said:
As a cover band, you ARE complying with copyright law when you play copyrighted music without a license in a venue or event organized and run by others.

i.e., there is nothing wrong with playing the music without a license because, as you say, that is the venue or event organizer's responsibility.

Look at the language: you're not agreeing to get a license. You're agreeing to know the law and abide by it. You seem to know the law. Check. You will abide by it since you can't break it. Check. What's the problem?

Oh, the part about being held responsible; you're NOT responsible and no court is going to make you pay anything. I think. :D

Therefore, I would not hesitate to sign this... especially since 99.9% chance nothing will ever come of it anyway.

Good luck!
Click to expand...

I don't think you really grasp the concept here.....

If SOMEONE does not handle the liscencing, then you are violating copyright laws. Usually it's the venue, but that clearly is not the case here.
 
#5
As a cover band, you ARE complying with copyright law when you play copyrighted music without a license in a venue or event organized and run by others.

i.e., there is nothing wrong with playing the music without a license because, as you say, that is the venue or event organizer's responsibility.

Look at the language: you're not agreeing to get a license. You're agreeing to know the law and abide by it. You seem to know the law. Check. You will abide by it since you can't break it. Check. You're not going to "breach this representation." Check. What's the problem?

Oh, the part about being held responsible; you're NOT responsible and no court is going to make you pay anything. I think. :D

Now, if it said you "AGREE TO OBTAIN AN ASCAP/BMI LICENSE" then we would have a problem. But you can't agree to that, because as a performer in a venue operated by others, there is no such license FOR you to obtain! And my guess is they know this, hence their wording, and are only putting in this mumbo-jumbo to make some higher-up feel better.

Therefore, I would not hesitate to sign this... especially since 99.9% chance nothing will ever come of it anyway.

Good luck!
 
#6
This was discussed pretty extensively covered in the last few months. I will try to find the thread.

IIRC, The venue usually is responsible for licensing. At festivsals, they may not want to face these expenses, so they try to place the responsibility on the performers.

If I find the thread, I will come back and update the post.
 
#7
domdec314 said:
I'm in a fairly new country band that's starting to get some really good gigs. We recently got asked to be the house band for a big country festival that will happen next year. I personally know one of the main people running it and trust her very much. My band leader just forwarded me the contract and there's one part I'm not sure about:

"Indemnify for Copyright Infringement: ARTIST(s) represent and warrant
that they are knowledgeable about the copyright laws of the United States as
applicable to the Performance. ARTIST(s) shall not perform any copyrighted
materials of others during Performance without full compliance with such
applicable copyright laws. In the event that ARTIST(s) breaches this
representation, warranty and covenant, ARTIST(s) hereby agree to INDEMNIFY
AND HOLD HARMLESS BUYER and its employees, guests and agents from and
against all liability, loss, damages, claims, and expenses (including attorney's
fees) arising out of said breach."

We are primarily a cover band so this would be an issue for us. I've always been under the assumption that the venues, not the musicians, are responsible for obtaining the license. I went to the ASCAP website and found this in the FAQ:

"Some people mistakenly assume that musicians and entertainers must obtain licenses to perform copyrighted music or that businesses where music is performed can shift their responsibility to musicians or entertainers. The law says all who participate in, or are responsible for, performances of music are legally responsible. Since it is the business owner who obtains the ultimate benefit from the performance, it is the business owner who obtains the license. Music license fees are one of the many costs of doing business."

That seems to confirm what I thought. I know that this definitely applies to bars, but I don't know if a festival would be handle differently. This is the first time we've had to sign a contract for a gig, so we have pretty much no experience with this. The people that we are working with have been running a very successful gun show for years, but I don't know if they have much experience with live music.

What do you guys think? Are they in their right to put that in the contact, or should they be held responsible to get the licence?
Click to expand...

They're explicitly shifting licensing responsibility to you. Whether or not that would stand up is an open question since contracts or provisions of contracts that violate the law are unenforceable.

It would be expensive to find out though. How expensive is it to license the songs?
 
#8
Chances are slim that a PRO like BMI or ASCAP would go after the bands at a festival. They'll go after the festival, and IMO the festival won't get much traction if they try to pawn off the responsibility for licensing to the bands.

I would say there is little chance of a problem, but I would advise you to speak with a real lawyer and not take legal advice from an internet forum.
 
#9
@domdec314, I think you have it right. IMO (I'm not a lawyer) the event organizers are on the hook for the license. They know this (as evidenced by that clause being there), but seem to want to pass it off to the performers and not get the license. If you sign the contract with that clause, you (apparently) comply with that idea and accept responsibility.

If it were me, I'd talk to them and quote what ASCAP has to say, and maybe they'll delete that clause - if so, have them line it out and you both initial it. If they don't delete it, you might mention to them in passing that you know how to contact ASCAP to report violations...
 
#11
ChrisB2 said:
As a cover band, you ARE complying with copyright law when you play copyrighted music without a license in a venue or event organized and run by others.

i.e., there is nothing wrong with playing the music without a license because, as you say, that is the venue or event organizer's responsibility.

Look at the language: you're not agreeing to get a license. You're agreeing to know the law and abide by it. You seem to know the law. Check. You will abide by it since you can't break it. Check. You're not going to "breach this representation." Check. What's the problem?

Oh, the part about being held responsible; you're NOT responsible and no court is going to make you pay anything. I think. :D

Now, if it said you "AGREE TO OBTAIN AN ASCAP/BMI LICENSE" then we would have a problem. But you can't agree to that, because as a performer in a venue operated by others, there is no such license FOR you to obtain! And my guess is they know this, hence their wording, and are only putting in this mumbo-jumbo to make some higher-up feel better.

Therefore, I would not hesitate to sign this... especially since 99.9% chance nothing will ever come of it anyway.

Good luck!
Click to expand...

He's agreeing to make sure that he complies with copyright laws. If a license needs to be bought and the venue won't he has no choice but to do it himself or else he can't fulfill his obligation to actually play.
 
#13
ChrisB2 said:
The language of the contract DOES NOT say that OP is agreeing to obtain a license. He is only agreeing that he understands his responsibility and agrees to carry it out. Which he does and will. No problem.
Click to expand...

I know. My point is that if he's to carry out his responsibility to only play properly licensed material and the venue refuses to buy the license what choice does he have?
 
#14
Gaius46 said:
They're explicitly shifting licensing responsibility to you. Whether or not that would stand up is an open question since contracts or provisions of contracts that violate the law are unenforceable.

It would be expensive to find out though. How expensive is it to license the songs?
Click to expand...

Best post so far.

Indeed, the consequences of playing copyrighted intellectual property for monetary gain is subject to debate, but there are a couple of things you can count on.

If no one obtains the required licensure to legally perform copyrighted intellectual property and BMI/ASCAP, et. al. find out, and they pursue it with legal action, they can and probably will name everyone and anyone within reason connected to and responsible for the playing of said copyrighted music.

The two most likely suspects are the organizing/booking entity and the actual musicians who performed the music.

The organizer can say to the band contractually, "We're not paying a license fee to make playing this music legal. It's your responsibility," but ASCAP/BMI doesn't have to give that any weight at all. In other words, it does not absolve the organizer from their responsibility and from contributing to the performing of copyrighted music illegally.

In short, if no license is obtained and it goes to court, the band and the organizer could both be in hot water, regardless of any contract between them.
 
#15
As a third year law student who aced entertainment law last semester (and recently stayed at a Holiday Inn Express)...you should talk to a lawyer and not ask legal questions on an internet site for bass players. That being said, most of what's been said on this thread is accurate.

I personally would not sign this because of the indemnity clause. You should speak with a lawyer, and barring that, you should talk to whomever you're contracting with and talk about this clause, and make sure they're aware of what you found on the ASCAP FAQ. Not an expert on licensing but what you said in the OP makes me think this festival needs to pony up for the fees or you guys simply shouldn't play, at least not with the contract as it stands now. The indemnity clause opens you up to a lot of risk if ASCAP did decide to go after you. Even if the contract terms are unenforceable, you would have to go through a lot of crap before resolving the issue, if it arises.

I would NOT sign this and then play the songs with my fingers crossed that the band doesn't get in trouble. You should play this show safe in the knowledge that the festival paid the fees and you can just rock out, or you shouldn't play it. Plus, playing bass with your fingers crossed is probably bad technique.
 
#16
ChrisB2 said:
Sorry about that.

Just go up read the ASCAP quote in the OP. You must be the "some people" they're talking about. ASCAP is the organization charged with administering the licenses. Maybe you should contact them and tell them they're doing it wrong... IYO. :p
Click to expand...

Sorry, but the law says this :

"The law says all who participate in, or are responsible for, performances of music are legally responsible".

ASCAP may be selective in their enforcement, but that doesn't change the law. You wanna play semantics with a group that once sued Girl Scouts for singing licensed songs at summer camp??
 
#18
Bradass said:
Not an expert on licensing but what you said in the OP makes me think this festival needs to pony up for the fees or you guys simply shouldn't play, at least not with the contract as it stands now. The indemnity clause opens you up to a lot of risk if ASCAP did decide to go after you. Even if the contract terms are unenforceable, you would have to go through a lot of crap before resolving the issue, if it arises.

I would NOT sign this and then play the songs with my fingers crossed that the band doesn't get in trouble. You should play this show safe in the knowledge that the festival paid the fees and you can just rock out, or you shouldn't play it. Plus, playing bass with your fingers crossed is probably bad technique.
Click to expand...

Bingo.

I might hire you some day down the road Brad.
 
#19
Thanks for the advice everybody. I just want to say that I know better than to take what people say in forums as law. I just wanted to make sure I was right in my thinking before I go seeking professional help. Like I said, this is all new to me so I have no idea if festivals are handled differently than bar gigs. I'll tell my band leader that we should talk to a lawyer. I know these people and really don't think they're trying to screw us. I think they're just unaware of how they're suppose to handle live music.
 
#20
domdec314 said:
Thanks for the advice everybody. I just want to say that I know better than to take what people say in forums as law. I just wanted to make sure I was right in my thinking before I go seeking professional help. Like I said, this is all new to me so I have no idea if festivals are handled differently than bar gigs. I'll tell my band leader that we should talk to a lawyer. I know these people and really don't think they're trying to screw us. I think they're just unaware of how they're suppose to handle live music.
Click to expand...

Actually, as I read it, I think they DO understand it, but are just trying to pass off the cost and the liability.
 

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