Or getting the right rights right.

When dealing with rights, it is important to remember that they are subdividable into catagories and regions. Finding the correct rights holder is always important, else you just waste your money and receive no benefit of protection. For music compositions, the author's rights apply mostly in two catagories

1. "Performance" based rights include both live gigs by a band and mechanically reproduced sounds when played back from a phonorecord or tape to an audience. In a "performance", the consumer is treated to a transitory experience, that is the sound of the music is heard. ASCAP , BMI and SESAC are the organizations that most composers and publishers use for administrating these rights.
2. "Transmission" based rights include items that are manufactured, like phonorecords, videotape, piano rolls or sheet music, that gives (or transmits to) the consumer a physical object (media) that contains some form of the composition that can be used by either a musician or a mechanical device to make the musical sound. The Harry Fox Agency represents a fair number of composers and publishers with these rights.

   Broadcast of music on radio or television programs has always been considered the equivalent of a live performance, even if produced with the aid of transcriptions (phonograph records) or tape. Most broadcasters opt to pay a blanket royalty for each year to ASCAP/BMI, otherwise they have to make per-use payments and keep logs. While broadcasting is sometimes referred to as a "transmission", it does not deliver a tangible object. A home tape recording of air signals is considered a "time shift" and thus still a performance when replayed., or so said the supreme court in the infamous Betamax case.

   But manufacturing a videotape that is to be sold or distributed directly to the public, is not a "performance". Permission to make the product, is sometimes called "sync" rights, a term taken from the motion picture industry. Back in the days of silents, ordinary sheet music could be distributed with a film for the piano player, organist, or in big cities the pit orchestra to play. The composer collected royalty both from the sale of the printed music and for each public performance in the movie parlor. Talkies changed everything. Not only was there no longer a live "performance" at each showing, the movie distribution company was no longer buying tons of sheet music. A new royalty class was created to provide payment to the music composer called a "sync" right, which allowed the filmmaker to imbed music as part of the movie sound track. This is technically a transmission right because although the movie goer is not given a copy of the film, the theater is provided with a physical copy for showing. Transmission rights are typically based on the number of media produced for distribution. Harry Fox requires a minimum advance royalty based on 500 videotapes which is unreasonable for the wedding and event photographer that sells a dozen copies or less of a given show. And not all music is represented by Harry Fox, so that it is not uncommon for rights to not be available at all for certain popular pieces.

There is an odd provision in the Copyright Act which provides for production of phonorecords without the music composer's permission. This is the "mechanical rights" clause. So, in those cases where composer's rights are not handled by Harry Fox Agency, record companies can make statutory royalty payment to the copyright office without having to deal directly with rightsholders. This rule only applies to phonorecords and not to videotape or other types of produced media. A thought on jukeboxes., another user of phonorecords with special rules.

But the rights bandwagon does not stop there. Should the video be put to a use, be it broadcast, theatrical performance, company training meeting, played at a trade show, ad nauseum.., then we are back to "performance rights" again with ASCAP and BMI. The non-broadcast uses usually carry a royalty based on size of audience, with some rather large minimums, FOR EACH SHOWING. Thus if you are making a training video, it might be hard to sell if the buyer knows he will be stuck with a sizable royalty every time he uses it. Should you fail to notify the buyer of this requirement, you could end up paying his bills for him. Some of the so-called rights-free production music packages are filled with original music written by composers that subscribe to either ASCAP or BMI. Check the license agreement, you may only be getting free use for broadcast application and that non-broadcast use may still be subject to per-use royalties.

One other comment on videotape production rights. It is possible to make a video that copies stage, television or movie productions, where the music rights for that particular insync use may be held by the playwright or movie producer under a special copyright granted for produced items. In that case, rights must be secured from this holder as well. Bewary of videotaping school 'plays' as a profitable venture, if they are based on a published script as copyright spies are lurking everywhere.

This opens up the thought, if a movie is in public domain (many are because studio bean counters don't like paying the renewal fees) couldn't I just use its sound track as a source of PD material. Answer is: no, what you crazy?? It is PD only in its complete or sync form, when any elements are repurposed for another use, then there may be an underlying copyright (screenplay, lyrics, music composition, choreography,...) that has been registered and still in force. Remember, many of the songs used in movies are selected because they are already popular. Incidental music that is composed special for TV shows or movies is usually published (called "cue sheets" in the trade) and copyrighted for other purposes by the original composer.

Using music, even public domain music, from a phonorecord produced after February 1972 is subject to rights held by the record company. Fortunately when these rights were created, use in broadcast air-play was excluded. Radio and TV stations neither need permission or pay royalties to the record companies. But videotape distribution is not so blessed. There is no central Agency for clearing these rights, and record companies do not respond to requests for permissions. Should you be so silly as to use a CD without said permission, the statutory damage assesment is $500 per instance, in a civil court action, and destruction of all copies, and confiscation of all equipment used, in a criminal court action. Also webcasting is not exempt, even when from a traditional broadcast outlet.

To get around using a phonorecord, you could hire a band and rent a recording studio. Performers have rights under state laws, so make sure permissions are obtained and that the recording studio gives a blanket release or offers a for-hire contract. Note that failure to pay for these services will give these people an opportunity to exercise copyright infringement action, which in some states may allow for a kind of "mechanics" lien. Union musicians have additional rules concerning payments. Union scale usually is dependent on the purpose of the performance, which can cause problems should you reuse the recording for other projects.

And if you plan to use use vocal arrangements, remember that the poetry or lyrics is a separate copyright from the musical composition, and that those rights must be satisfied also. Have fun.

Another kind of "performance" is the playing of radio or CD music in retail stores.