What is this “Original Music Policy” Thing?
AS220 exists to provide local artists with an outlet for their unique artistic expression. Our Live Arts venues are for all forms of local original performance in all their glory! We seek to present a forum for the voices of all people, as diverse as they come, in their truest form. We hope we can help create a space that will nurture your creative original works.
Some of today’s music and interdisciplinary works include remixing and mashups of sounds that have been recorded by other artists. Some inclusion of other people’s copyrighted material in the creation of your own original work is allowed under “fair use” laws. However, AS220 is by no means able to determine what cases fall under fair use– only judges can do that in courts and stuff. For our purposes, if a performer feels that their piece is an original expression, that stands alone with new meaning when compared to the source copyrighted material—we are cool with it being performed at our venues.
However, AS220 has a no covers policy, which means that an artist cannot perform another artist’s song in its entirety without written permission (unless it is a song that exists in the public domain or is registered under Creative Commons. Why do we have this policy? All that and more in the next paragraph, dear reader!
What are Performing Rights Organizations (ASCAP/SESAC/BMI) and why does AS220 boycott them?
ASCAP (American Society of Composers, Authors and Publishers), BMI (Broadcast Music Incorporated) are non-profit entities that license performances of songs and collect royalties on behalf of the artists they represent. You might be wondering, “wait… so AS220 is boycotting non-profits that serve artists? What bizarre world is this.” Yes indeed! This is very counter-intuitive, so what gives? The issue is that despite the PROs noble intent, the methods and practices that the organizations use to collect royalties and pay artists are fundamentally flawed. Here’s a summary of how it works:
The PROs demand that any music venue (and many businesses and bars), regardless of their size, pay a “blanket-licensing fee.” The blanket license is paid annually and gives venues the permission to have songs in the PRO catalog played live or played from a recording at the venue. The PROs then pay artists royalties from these fees collected.
The United States Copyright Office has recently released a report detailing ways this collection system doesn’t work. Since there is no real way for the PROs to know what songs are played in venues, particularly small ones such as AS220, they rely on sampling methods that examine radio airplay and the songs performed at large venues (like… stadium large…). Anyone who has listened to the radio in the past 10 years or gone to a big concert knows that it’s extremely unlikely that local artists are going to be represented in these samples. This means that a disproportionate amount of royalty payments go to the most popular artists represented by ASCAP and BMI. It’s kind of like the “1%” of the music world.
According to the Copyright office, census data, which is more common for digital streaming services where it is easier to collect information, would be more comprehensive and fair than sampling data. ASCAP relies upon census data only when it is “economically feasible” to process. For instance, Music Services stated that survey based distribution, particularly for radio and live performances, is “antiquated” and that “[m]any publishers and writers believe they are not receiving their fair share of the PRO pot.” If you ask a small artist represented by these groups how much they receive in royalties, you might hear some hilarious (and sad) examples of people receiving 47¢ checks and such—certainly not enough to make a living off of, or justify the amount that the PROs charge small venues for a blanket license. The Copyright Office also declared that “musicians who do not have “mainstream” songs on the radio are underpaid… since sampling is more likely to identify hit songs, the PRO will likely undercount performances of works by emerging or fringe musicians. “
AS220 exists as an alternative space that since its early days has served these “emerging and fringe” musicians affected by the lousy PRO practices. In a time where live music venues are struggling to keep their lights on and their doors open more than ever, licensing fees represent a significant financial burden to overcome. AS220 is of the opinion that the blanket licensing agreement for small venues are unfair and more likely to line the pockets of extremely wealthy copyright holders than serve a local community of artists.
To read the complete “Copyright and the Music Marketplace” report visit:
Ok… So can you clarify what I can or can’t do at AS220 venues?
We are put at risk if a performer plays a cover of a song or if licensed background music is played within the venues. When you fill out a booking request at AS220 you are agreeing not to do either of those things when performing here and that you feel your work is an original expression. We like popular music too, hopefully there will be soon be Copyright reform that allows everyone to enjoy copyrighted material while at the same time fairly paying artists and charging venues appropriately. Until then, AS220 strives to create an alternative model that stands against the practices of legal intimidation used by the PROs to collect from small businesses.
Do you belong to the performing rights organizations ASCAP, BMI, or SESAC?
If you are represented by a Performing Rights Organization you can ABSOLUTELY play at AS220— you just need to notify your PRO that you are performing here and choosing to license your music with AS220 outside of the PRO. By filling out our artist agreement form you are agreeing to license your music with AS220 for the night of your performance for $1. This dollar is more than your PRO would pay you for royalties for your performance at our venue. The dollar is in addition to normal payment for your performance according to our payment agreement. Musicians are allowed to license their own music outside of a PRO even when they belong to a PRO.
For more information about “fair-use”, Creative Commons and Public Domain, Read below:
If a song is in the public domain, it is not currently protected by copyright and you may use it any way you like. A song may be in the public domain because it never qualified for protection or because its copyright protection expired. Remember just because a song is “old” doesn’t necessarily mean it’s in the public domain. For a guide on how to figure out whether a song is in the public domain see: How to find out what is in the Public Domain.
Creative Commons (CC) is a non-profit organization that provides a license for creators to share their copyright rights with those who want to make creative uses of copyrighted works. CC offers six different licenses that allow users to share and reuse CC-licensed material. When using CC-licensed material, you must comply with the license terms and you must give credit to the creator of the licensed material. So you should let us know beforehand if you are performing a song licensed under CC. You should also let us know if you’ve modified the song or will be performing it as is. Finally, you should only use songs that are licensed for commercial use because you may be paid for your performance according to AS220’s Payment Policy.
For more information on CC or to find out what songs are licensed by CC visit: http://creativecommons.org.
Some guidelines about “originality”:
- The work was created by you and/or your band members.
- You did not create the work as part of your employment for a company or organization; or because you were specially commissioned to write the song as per a written agreement.
- The work is an expression of your own ideas in a unique way.
- The work incorporates other artists’ work within the guidelines of “fair use”
Fair use of another’s copyrighted work is tricky to define, but there are some guidelines that can be used to determine whether a work containing samples from copyrighted songs, constitutes fair use. The following factors must be considered in a fair use analysis: the purpose and character of the use, the nature of the original work used, the amount and substantiality of the original work taken, and the market effect.
The Purpose and Character of the Use
This factor considers: if you’re using the copyrighted work for commercial purposes and if your use transforms the copyrighted work.
If you are using a copyrighted song commercially, it is less likely to fall under fair use. In this case, you will be paid according to AS220’s Payment Policy so this sub-factor may or may not weigh in your favor.
However, if you transform the copyrighted work enough so that you are commenting on the sampled work or creating an entirely new song with a different purpose from the original, your use is more likely to fall under fair use.
Example: Performing karaoke or a cover song does not transform a copyrighted song however a parody of a copyrighted work may transform the work just enough to make your use of a copyrighted song more likely to be fair use. Some examples of parodies are Weird Al Yankovic’s “”Smells Like Nirvana”,” a parody of Nirvana’s “Smells Like Teen Spirit,” and the “Spider-Pig” song from The Simpsons, which parodies the Spiderman theme song.
Mashups are also an example of sampled and remixed works with a strong fair use argument because they blend two or more prerecorded songs to make an entirely new song. DJ Earworm makes an annual “United State of Pop” mashup compilation of Billboard’s top 25 songs and turns it into one comprehensive track; these mashups are more likely to fall under fair use because they are highly transformative.
The Nature of the Original Work Used
This factor looks at whether the original work is factual or fictional as well as published or unpublished. Facts cannot be copyrighted but fictional works or even factual works with some element of creative organization (like a song) are copyrightable so the use of such works is less likely to fall under fair use.
Works that are unpublished are also less likely to fall under fair use since your use of that work takes away the copyright owner’s choice to publish that work or leave it unpublished. Use of a published work (work already distributed to the public) is more likely to be fair use.
Example: A song may be made up entirely of facts but the creative way in which those facts were expressed and organized, is copyrightable. So while use of any factual statements may be more likely to be fair use, using an exact copy of any part of the song is less likely to be fair use.
Example: If you sampled another artist’s song that has not been published or distributed to the public, your song will be less likely to fall under fair use.
The Amount and Substantiality of the Original Work Taken
When an entire copyrighted song is used and makes up a substantial portion of the new song, it is less likely to be fair use of the copyrighted song. If you use the heart of a copyrighted song, even if it is just a very small portion of the entire song, your use is less likely to fall under fair use. The heart of a song tends to be the hook, the bridge, or the part of the song that attracts listeners. But if the heart of a song is being used in a parody then your work is more likely to be fair use; consumers must understand that your work is a parody.
Example: The Supreme Court found that although 2 Live Crew’s “Pretty Woman” used the heart of the original rock ballad, “Oh, Pretty Woman” by Roy Orbison, it was more likely to be a fair use because it was a parody and it only incorporated a small portion of the heart of the work so the listener could understand which work 2 Live Crew was parodying.
The Market Effect
If your song becomes a direct substitute or market replacement of the original copyrighted song, your use is less likely to be fair use. A direct replacement of the original song increases the chances that consumer-listeners will use your new work as a replacement for the underlying copyrighted work.
Example: Copying a song and making it available on iTunes or anywhere else (for sale or for free) is a direct replacement because consumers will no longer have to purchase from the copyright owner since they can obtain a substitute from you.
To be on the safe side, if your music contains a sample from another song and you need to rely on fair use, you should:
- Transform the copyrighted sample so that your song has a different purpose from the original sampled song or comments on the original song by way of parody or other critique.
- Sample songs that are already published.
- Use just as much of the song you need to make your point. Any given sample should not make up a substantial portion of your new song.
- If using the heart of the original song, your song should have a different purpose from the original and it must be made clear that you are commenting on the original song by way of parody or other criticism.
- Ensure that your song is not a substitute or direct replacement of the original song, so that your song doesn’t harm the market of the original song.
If you have any questions regarding the fair use of copyrighted music please feel free to reach out to our friends over at New Media Rights, newmediarights.org. They’re a non-profit dedicated to helping individuals like you with questions about things like fair use, creative commons and copyright.
Here are a few other helpful resources that you might want to use to learn more about copyright, fair use and creative commons:
- The Center for Social Media in the “Code of Best Practices in Fair Use for Online Video” at centerforsocialmedia.org.
- The Artists House Music article, Understanding Sampling, Cover Songs & Derivative Work.
- New Media Rights guide How To Find Free Music, Images, And Video You Can Use Or Remix In Your Own Creative Works, http://www.newmediarights.org/legal_how_to_guides_for_citizen_media_creators_online_publishing