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Copyright Basics for Barbershoppers

Here's the latest information about Copyrights and the Law.

Copyright laws exist to encourage and protect creativity and expression of ideas. In order to do this, Congress has granted certain exclusive rights. This, in a sense, is the only way to guarantee that if you create something, in this case a song, you are entitled to the benefits of your creation.

The revised United States copyright law, which went into effect on January 1, 1978, gives certain exclusive rights to the copyright owner, who may be the writer of a song or someone who has been assigned ownership, such as a publisher or an estate, through contractual agreements. These rights are to:

  • PREPARE derivative works based upon the copyrighted work;
  • REPRODUCE the copyrighted work in copies or recordings;
  • DISTRIBUTE copies;
  • PERFORM the work publicly;
  • DISPLAY the work publicly.

We are concerned mostly with the first four rights.

1. Preparation of derivative works
For barbershoppers, the prohibition against derivative works primarily means that an individual may not make a written arrangement of a copyrighted work without permission of the copyright holder. SPEBSQSA provides a service through the Old Songs Library (Tom Barr, librarian) for securing such permission. It involves the payment of a fee for the first five copies (one of the copies is retained by the international office for the publisher) plus a charge for additional copies to supply a chorus. Arrangers must be certain to secure this consent before preparing an arrangement.

It is important to know that an arrangement becomes the property of the copyright holder, not the arranger. If another quartet or chorus wishes to obtain the arrangement, they must seek permission from and pay a fee to the copyright holder. The Legal/Unpublished Department at Society headquarters can help you with the order process for unpublished arrangements. Call 800-876-7464, ext. 8472.

Violations could result in a substantial fine. Examples of violations include arranging, selling an arrangement, or photocopying without permission. Penalties can range from $20,000 to $100,000 per copy, so it behooves all Barbershoppers to abide by the copyright statutes.

Our quartets and choruses have an obligation to make certain that arrangements of protected songs have been made with the consent of the copyright owner. Check the source of an arrangement to be sure permission was secured to make a derivative work. Make certain the fees you have paid will go to the copyright owner, not just to the arranger. However, if the song is in the public domain (chiefly, those songs written before 1923), the arranger may well be the copyright owner of the arrangement.

2. Reproduction of the work

Printed material

Any original work, be it a song, cartoon, arrangement, lyric or other creation, is considered copyrighted if it bears a copyright date and name. A simple rule: If you see a copyright notice, don't copy it without permission! The inverse is not necessarily true, however; you might occasionally obtain material that does not carry a copyright notice. That doesn't mean it's not copyrighted, or that it is legal to copy it. Always be sure - call the Legal/Unpublished Department about any music that does not carry a copyright notice.

The most reliable sources for legal arrangements are the SPEBSQSA catalogs of published and unpublished songs and reputable music stores and catalogs. Purchase one copy for every member of the quartet or chorus, plus a few extras for your file. It's much easier to buy a few more than you need than go to the trouble or reordering or getting permission to copy.

There are a few occasions when it is permissible to make copies of music. You are permitted to make one or more emergency copies for an impending performance, if the copies are made from one that you obtained legally, so long as replacement copies are on order. You must destroy the emergency copies after the replacements are obtained.

You may also copy short passages of up to about four measures for educational or study purposes. However, copying tags or making up "tag sheets" are not covered under this exception.

Recorded material

Unauthorized duplication of copyrighted recorded material is illegal, whether it is an LP, CD, cassette or video. The producers of these recordings (quartet, chorus, or SPEBSQSA, Inc.) must pay royalties to publishers for the right to produce and sell their albums.

There are situations when you may do some duplicating of your own, however. Many chapters purchase learning tapes from the Society and find they only want to use one song from them. Rather than pay full price for 42 complete cassettes, you may, instead, reproduce one or two songs yourself. To do this, you must pay 40¢ per song, per copy to SPEBSQSA, which partially covers the cost of producing the original learning tapes and from which the Society will pay the appropriate fees to the copyright holder. Please note that this method is intended for reproducing one or two songs from a Society-issued learning tape; for more than two songs, it's usually easier and cheaper to buy the tapes from the Society.

Another simple, legal way to create a part-tape is to have your section leader or other strong singer sing directly into your hand-held recorder during a chorus rehearsal. So long as it is clearly a part-predominant tape, not a balanced, full-sounding recording, you need not pay a royalty. Please note that you cannot duplicate that tape, but several individuals may record simultaneously.

It is also OK to make a single audio or video recording of a rehearsal or show for archival, educational, or study purposes. However, if you want to distribute copies of your annual show to all the members or offer them for public sale or for giving them away at no charge, you must first obtain a mechanical license (audio) or synchronization license (video) for each copyrighted song used on the tape, as explained in the next section.

Obtaining permission to produce audio recordings

If you, your quartet or your chorus does any audiotaping or recording (other than under the above exceptions), the following information should prove helpful. Remember, the law says you must have permission to produce a recording (in any form) of a copyrighted song or arrangement.

To receive this permission, you must pay a fee called a mechanical license. Most publishers collect this fee through a collection agent:
Harry Fox Agency
711 Third Avenue, 8th Floor
New York, NY 10017
(212) 370-5330
Fax (212) 953-2384

http://www.harryfox.com or http://www.songfile.com

Determine which of the songs on your recording are copyrighted and send a list of the titles to the Harry Fox Agency requesting a mechanical license. Provide as much information as possible: Correct title, composer, publisher, date, etc. (If you need help with this process, contact the Old Songs librarian at Harmony Hall.) You also will need to state the length of each song and how many recordings (records, cassettes, compact discs) you plan to produce. Send no money at this time.

You will hear from the Harry Fox Agency in the form of a contract granting you a mechanical license at the statutory rate, which is currently (2002) 8¢ per song, per copy. This contract is considered your bill. You must pay for a minimum of 500 copies ($40.00 per song), even if you make a small number of copies. A two-song medley would cost $80.00.

A word of caution here: The Harry Fox Agency does not represent all publishers. They can only grant you a mechanical license for those publishers that they do represent. This will be made known to you in their reply.

You'll need to contact the other publishers on an individual basis and request mechanical licenses from them. Again, the Old Songs librarian can help you locate these publishers.

Since the Harry Fox Agency does not represent SPEBSQSA, Inc., you must write directly to the Society for mechanical license for songs and arrangements controlled by it. The royalty rate set by statute is still (as of 2002) 8¢ per song, per copy, no matter which publisher controls the song. Society members recording arrangements controlled by the Society are not required to pay for a minimum of 500 copies of those arrangements.

In addition, some songs and arrangements published by the Society are written and/or owned by individuals, usually Barbershoppers, who permit the Society to print and distribute their work. The Society can provide you with the address(es) of the copyright owner(s) so that you can pay the required mechanical license fee directly.

If you are making a recording of a contest or show, all of the above applies. In addition, you must secure written permission from each performer. The reason for this is that some performers may not want their performance on someone else's recording.

Producing commercial audio recordings

Many of the steps your quartet and/or chorus will need to go through in a recording project are the same regardless of the format(s) you choose (audiocassette or CD). Your personal involvement will vary, depending on whether you are working with an organization that does most or all of the work for you, or if you are going to handle the details yourself.

`Insides' - tapes or CDs

The actual recording sessions are, of course, the first major step. The options range from first-rate major recording studios to "basement studios" to semi-professional "on location" individuals. Prices can, and do, range from $30 per hour to more than $300 per hour. A higher price does not always mean better end result. Many top price studios do not understand the barbershop sound, and they may not be interested in the unique challenges it presents and how best to record and process it.

While most professional recording now uses some digital format (a near necessity for high quality CDs), a good deal of very fine recording is still done on analog equipment, and is eminently suitable for audiocassettes. A knowledgeable and sympathetic recordist is more important than the latest equipment.

The second major step is referred to as "editing," "post" or "mix-down." Songs are put in final order, sides for tapes are decided, volume levels are adjusted, etc. During this time, "ambiance" (echo, reverb, etc.) may be added to "dry" studio recordings, or too much "ambiance" from live (show or contest) recordings may be processed to lessen the effect. Careful work here can make or break the final product.

The third major area is the actual production (mastering and duplication) of the cassettes and/or CDs. You may choose to spend the extra money for a production-run tape or test CD if you want to be absolutely sure that what left the "post" phase actually comes out in the final product, before giving the OK to run copies.

A word of caution here with respect to cassette tapes: If you really want to put your best foot forward, cutting corners on tape stock and duplication-method quality can be penny wise and dollar foolish. The barbershop sound presents enough challenges for recording technology as it is, and considering the time, effort and expense involved, high-speed duplication on low-quality tape can negate all the care taken in the preceding steps. Audiophile quality tapes are duplicated in "real time" (1:1 speed) on chrome tape from digital masters.

`Outsiders -packaging

Design, copy, layout typesetting, artwork, photography, color separations and printing are the major concerns here. How plain or fancy you get depends on time, budget and taste, and can range from black and white to full color (four-color process), using foil or flocked papers and many other possibilities.

The cassette shell (paper label or direct print) and CD "topside" label usually contain the songs in the order presented, and the performers, especially if chorus and quartet. Any more than this may begin to look cluttered, and in fact may cause the type size to be so small as to be unreadable. When the tape or CD is actually playing, you normally can't read the information anyway.

In addition to providing information about the performers, ASCAP has requested that recording producers include the names of the copyright holders on the cassette "J-card" or CD liner. You may also want to consider including the songwriters, as a matter of recognition for the efforts, and the performance times as a courtesy for broadcast or other applications, although neither of these is required.

Obtaining permission for video recordings

Videotaping (and filmmaking) fall under an entirely different category called "synchronization license." Since there is no statutory (standardized) fee for these licenses, each song must be negotiated separately with individual owners. Fees can vary considerably, from as little as 10¢ per copy per song to $300 or more just for use of a song. Until a standard rate is set, we recommend you not copy any video or film. You may, however, make one archival copy of a show or contest. But, you must ask.

Some copyright owners are sympathetic to the typical needs barbershoppers require and try to be flexible. For example, if a chapter wishes to make copies of the archival video of its annual show and give the copies (or sell them at cost) to its members for their own personal archives, a copyright owner might give permission for this without charge. Also, a copyright owner might be sympathetic to the use of a promotional tape of a chorus or quartet that uses clips of songs to show off the performing aspects of the group to potential clients.

You can see that it is important to communicate complete information (intended audience, number of copies to be made, use of the tape, etc.) to the copyright owner. Remember that fees are completely negotiable and it is acceptable to ask for a waiver of fees. Of course, the copyright owner has the final decision to grant permission to use his or her work and any fee for that right. Therefore, it is very important to conclude negotiations before putting a lot of time or money into a project.

3. DISTRIBUTION RIGHTS

Recordings for sale

Barbershoppers may distribute copies of audio (or video) recordings if mechanical (or synchronization) license fees have been paid. Through the facilities and personnel of the international office, SPEBSQSA conducts an active recording program. All official SPEBSQSA recordings shall display the Society emblem and are predominantly barbershop harmony in content.

Use of the SPEBSQSA emblem is limited to recordings produced by the international office for the Society. The Society recording program does not restrict SPEBSQSA units from producing their own records or tapes for sale, however.

Recordings produced by medalist quartets and international champion choruses may be sold (distributed) by the Society. The recordings must be approved by SPEBSQSA, based on the following:

  • Quality of performance and reproduction. Either an actual recording or a sample pressing must be submitted. These will become the property of the Society.
  • Evidence of royalty payment or submission for it.
  • Review of recording artwork plus liner copy.
  • Content: The recording should reflect the stylistic integrity of the barbershop style.
  • The Society must be able to purchase the recordings at dealer prices in order to distribute them at a retail price.

Advertising in The Harmonizer

The Harmonizer may accept advertising for recordings that have been approved by the Music Department based on points A, B, and C above. The following statement must appear in all such advertisements:

"The distribution, sale or advertising of this recording is not a representation that the content is appropriate for contest use."

4. PERFORMANCE RIGHTS

You have the right to perform a song/arrangement that has been legally obtained. None of the above precludes the necessity of an ASCAP (SOCAN in Canada) and BMI license for public performances. If you sing on someone else's show - a barbershop group, a service organization, etc. - responsibility for paying the fee is primarily theirs; however, you should ensure that your host is aware of this responsibility. Chapter show clearances are thoroughly explained in the Chapter Secretary manual.

Similar guidelines apply to singing in shopping malls, restaurants or around businesses where an ambiance is intentionally created to attract crowds for buying. This fee is usually the responsibility of the businesses involved, though it is possible that your group will be asked to pay it.

Radio, TV and cable

Performance on radio and television is also governed by the fourth exclusive right granted to the copyright owner. Generally speaking, a barbershop performer does not have to worry about a performance on broadcast radio or television, including public radio and television. Broadcasters pay an annual performance fee to ASCAP and BMI that covers all copyrighted music performed.

Cable television is another matter. Since many cable companies do not have annual, blanket agreements with ASCAP and BMI, it is the responsibility of the producer of the program to secure permission with the copyright owners.

The use of copyrighted videotapes (or portions thereof), such as the Society's international convention videotapes, is also restricted. The synchronization licenses for those productions are negotiated exclusively for home viewing and preclude broadcast, cablecast or other uses.

If you have further questions, you can write the Society office:
SPEBSQSA
Attn: Music Department
6315 Harmony Lane
Kenosha, WI 53143-5199

Additional information can be found in booklet Public Law 94-533-10.19.76:
Copyright Office
Library of Congress
Washington, DC 20559
and
Copyright: The Complete Guide for Music Educators-2nd Edition

available from Harmony Marketplace (stock #6072) www.harmonymarketplace.com or 800-876-7464 x8410

Remember that a song and/or arrangement covered by copyright is intellectual property. The owner has certain exclusive rights, and your chorus or quartet must get permission, usually involving the payment of a fee, to utilize it. In reality, the same guidelines apply as when you rent, lease, buy, borrow, adapt or enjoy any pieces of property owned by someone else.