The Copyright Minefield

Our friends in Barbershop Harmony Australia (BHA) have kindly allowed us to share their article on copyright. Although it pertains to Australia and New Zealand, you may find some of the information useful, so we are publishing it here for you:

Compliance with copyright law is a vexed issue in BHA and BHNZ.  While the majority of choruses and quartets comply with the law, there are a number of misunderstandings of what is needed and some inadvertent breaches do occur.  Achieving copyright compliance is not cheap, but it is important that BHA and BHNZ are equally fair to all and everybody does pay their dues for copyright.  Copyright breaches are potentially expensive for those involved. 

A summary of the main points is:

  • The original authors of a song own the intellectual property rights to that song but usually assign the rights to a copyright house.
  • No names of those who wrote the song at the top and no copyright notice on the bottom of page one means an illegal copy (unless you are the author(s) and not just the arranger).
  • It is illegal to copy sheet music obtained from BHS, from an arranger or which came with learning tracks without a print licence.
  • You need permission to write a new arrangement of a song and to copy your arrangement.
  • Paying an arranger fee is not paying royalties for a song and does not (in itself) meet the requirements of copyright law.
  • Paying for learning tracks is not paying royalties for the song and does not (in itself) meet the requirements of copyright law.

The majority of songs are somebody’s intellectual property and subject to copyright protection.  Copyright holders are entitled to royalties for any use or copying of a song.  There are separate requirements and separate royalties for sheet music, to live performances, to live or delayed streaming on social media and other platforms and to recordings in other forms.  This article will only consider the copyright laws and royalties as they apply to sheet music.  Contest rules only apply to sheet music. 

The online contest entry seeks information for copyright compliance from entrants.  This information is required by Australian Performing Rights Association (APRA) from the BHA National Competition and the potential exists for it to be requested from other contests or public performances.

BHA and BHNZ put the primary onus being on ensembles for copyright compliance.  The online entry system asks for a minimum of copyright information (and less than BHS requests at its competitions).  The system now also requires that the registrant for that ensemble to sign the entry forms electronically putting their name and the date into the system.  The registrant will also have to tick that they have complied with various aspects of contest rules.  By making these declarations and electronically signing the forms well before contest day, we hope to avoid any issues on the day.  It would be devastating for a group to be refused their spot on the contest stage or to be disqualified two weeks before contest (when they might have a chance of rectifying the matter) or even worse on contest day when there is little chance of doing anything about the breach of the rules.

The original authors of a piece of music, the person or people who wrote the words and music, have intellectual properties to that work of art.  In most cases, the authors will assign their rights to a copyright house, such as EMI Music or Sony Music.  These copyright houses have agents in both Australia and New Zealand.  The vast majority of copyright owners are represented in Australia and New Zealand by either Hal Leonard or Devirra Corporation (previously Alfred Music).

The original authors, but not an arranger, of a song own the intellectual property rights to that song but usually assign the rights to a copyright house.

Intellectual property rights expire with the passage of time and the laws differ from country to country (or region to region), but most frequently expire a set number of years after the death of the composer(s).  USA public domain laws are quite different, and songs in public domain in the USA may still be in copyright in the rest of the world, and vice versa.  For more information on Australia’s public domain laws, see page 8 of the Duration of Copyright fact sheet from the Australian Copyright Council. For more information about New Zealand’s public domain laws, see the Public Domain Guide published by DigitalNZ.  More on copyright law itself and how to determine if a song and its associated sheet music are in the public domain will be the subject of a future article. 
 
Sheet music may be purchased here or overseas.  But to be sold in Australia and New Zealand, the seller must have rights in this region to do so.  Any legitimate sheet music has the names of the authors and the arranger, if any, at the top and a copyright notice at the bottom of the first page.  No names of those who wrote the song at the top and no copyright notice on the bottom of page one means an illegal copy (unless you are the author(s) and not just the arranger).

Music can be purchased from BHS in the US.  However, BHS only has the right to sell much of its music in the US and Canada and not directly to Australia or New Zealand (which together form a single copyright region).  Some BHS music is able to be sold directly here and BHS will indicate one way or the other.  BHS can also obtain International rights on request and then sell the music, but they charge $US150 just to get the rights and it is almost certainly somewhat cheaper to get a print licence locally. 
 
Where BHS does not have International rights (and you do not want to pay BHS for them), BHS can provide a single free reference copy of a song to BHA and BHNZ registered ensembles.  As with sheet music from an arranger or from an artist who has produced learning tracks, such single free copies may not be copied for use by an ensemble without obtaining a print licence.  It is illegal to copy sheet music obtained from BHS from an arranger or which came with learning tracks without a print licence.

Songs in the Barbershop style have usually been arranged especially for the genre for obvious reasons.  Arranging an existing song gives the arranger no rights over either the words or the music.  The arranger actually needs permission from the copyright holder to arrange the song.   Permission to arrange a song is not always given.  Disney often refuses permission to use a new arrangement as does the copyright owner for Les Miserables.  You need permission to write a new arrangement of a song and to copy your arrangement.

An arranger may charge a fee but this fee does not meet compliance with copyright law.  Arrangers may provide a copy of their arrangement.  Paying an arranger fee is not paying royalties for a song and does not (in itself) meet the requirements of copyright law.
 
A number of artists produce learning tracks.  Sometimes they use slightly different arrangements from that of “the arranger” and may provide a copy of the exact arrangement.  The artist concerned has a right to charge a fee for their rendition of the song.  Paying for learning tracks is not paying royalties for the song itself and does not (in itself) meet the requirements of copyright law.
  
Obtaining music legally is relatively easy – well, maybe not totally easy the first time.  And unfortunately is not always cheap.  But this is the subject of a future article.

More information is available on the BHA website at:
https://www.barbershop.org.au/commonfiles/bha/db_uploads/COPYRIGHT_GUIDELINES_May_2016_update_1.pdf John Faris

Copyright law varies in different parts of the world. This article is written for Australia and New Zealand and may not apply in other parts of the world.

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