Wants to Blu-Ray School Band Concerts

Dear Rich: I’d like to do multi-camera recordings of local high school band concerts and choir concerts.  I think I’m entering new territory by recording and possibly streaming the concerts. All proceeds from the selling of DVDs and Blu-ray discs go back to the school’s programs. I won’t be making any money off these endeavors. What kind of permissions do I need to secure? Do I need to contact the publisher for each piece that is performed? The correct legal answer is that yes, you would need to contact the publisher for each piece and get a sync license (we talk about it here), as well as permission from the school band performers and conductors (to avoid right of publicity claims). Since sync licenses are so difficult to obtain, we believe you can probably protect yourself just as well by getting a mechanical license instead of sync license. (Mechanicals are used only for audio recordings, syncs are for audiovisual recordings.) That would deflect any disgruntled publishers ... though we doubt any would want the negative publicity resulting from a brouhaha with a high school band.
Practically speaking ... If you are only selling the disks locally to members of the community, you can probably forego most of the permissions mentioned above. (It's what often happens when a tree falls in the intellectual property forest.) It may help to have something in writing (emails are fine) between you and the school that indicates you have their permission for your endeavor. If you intend to sell to a broader audience, you will probably need to get the permissions discussed above (and described in detail in the Getting Permission book.)

Does Downloading MP3s Trigger Public Performance Payment?

Dear Rich: In your Getting Permission book, when you discuss digital download permissions for MP3s, you write that "Music publishers currently seek to get paid in two ways (referred to as “double-dipping”), once for the reproduction of the MP3 file and again for the transmission of the file over the Internet." I thought that they could only get paid for the downloads. You're right. The statement in the book is outdated. In a 2007 decision, a federal court held:

"Although we acknowledge that the term “perform” should be broadly construed [cite omitted] we can conceive of no construction that extends it to the copying of a digital file from one computer to another in the absence of any perceptible rendition. Rather, the downloading of a music file is more accurately characterized as a method of reproducing that file."

It's true that music publishers are still seeking to get paid both ways and that they petitioned Congress to revise the copyright law accordingly. But their desires have not yet been transformed into law and we'll report if and when things change.