Basics of Music Licensing

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Some Basics of Music Licensing for Burlesque Performers

The popularity of live burlesque performance has exploded in a major way in recent years, and music is a central element.  But how do performers, producers and venue owners/managers get permission to use all of that music, ranging from jazzy standards to show tunes to current pop songs to classic rock and beyond?  Music licensing–a fairly complex and involved process.  Music licensing issues are addressed under the Copyright title of the United States Code. [1]

The way that music is used in burlesque performance impacts the entire essence of the show, but the costs to license certain songs may be very high or the songs may be unavailable altogether.  The most famous example of a song that has not yet been made available for licensing for any purpose is Led Zeppelin’s “Stairway to Heaven.”  You might remember the scene from the movie Wayne’s World where there’s a sign in the guitar shop that says “No Stairway to Heaven.”  That’s an inside joke about music licensing!

No one, especially an up and coming performer generating exposure (pun intended!) in the industry, wants to be placed in a situation where unlicensed music causes problems or results in what is called a “cease and desist letter” to stop using the music without permission.  Failure to comply can result in legal action, which is costly and time-consuming.

To avoid problems, a performer should use original music.  But of course that is unrealistic.   Ideally, the performer and show producer will get together as soon as possible and compile a wish list of songs early on in the process.  The next step is to go to the websites of the three major performance rights societies to determine who controls the song, and who the songwriters and publishers are.  The three websites are www.bmi.com (Broadcast Music, Inc.), www.ascap.com (The American Society of Composers, Authors and Publishers), and www.sesac.com (Formerly the Society of European Stage Authors & Composers, now with a global reach, known simply as SESAC.

The performance venue, such as a theater or club, may already have what is known as a blanket license with BMI, ASCAP and/or SESAC.  There is often some sort of sticker or decal visible on the door or other location (such as a DJ booth) indicating that the venue is in compliance with one or more of the performance rights societies.

Two licenses are necessary to obtain if the pre-existing song is to be used in film or broadcast media, such as a concert DVD or documentary: a Synchronization License and a Master Use License.  The Synchronization License is to obtain permission from the composer or publisher.  The Master Use License is to obtain permission from the copyright holder, often the musician or record label.

The interplay between the two licenses is unique and can be frustrating, especially when trying to get a price quote for a license.  A lot of the time, proof of having obtained one of the licenses is necessary to obtain the other and the cost of one license may be dependent on the cost of the other license. .  This can be quite annoying when faced with a situation where the licensor of the Master Use License requires proof of a Synchronization License in order to even give a price quote for the license.  Also, the quoted prices can vary depending on the use.  Music rights for a concert DVD are likely to cost more than a documentary project with social or historical relevance.

On a closing note, music licensing has far-reaching impact that even extends to restaurants and our everyday lives.  The most famous American song of all time that continues to have copyright protection is “Happy Birthday” by Patty and Mildred Hill.  All those clever unique birthday songs you hear at restaurants are by necessity, rather than design.

Incredible but true, in order to publicly perform “Happy Birthday”, a license needs to be obtained or a blanket license be in effect for the venue.  The song is not due to pass into public domain in the United States for another twenty years — in 2030.  So, be sure to think ahead if you want to duplicate that famous very burlesque moment in the early-1960’s when Marilyn Monroe sang “Happy Birthday, Mr. President” to JFK!

This article is intended to be informational: an overview of some music licensing basics, and is not to be construed as legal advice. It is recommended that you consult an attorney regarding the specifics of your issues in this area.

Brian Landa is a Partner in the firm Landa & Landa where he practices Labor & Employment and Entertainment Law.  Contact: BrianLandaLaw@aol.com, Website: www.LandaLawyers.com.

For our Copyright Law: Myth vs. Fact regarding Photography click here


[1] 17 U.S. Code 101 et. seq.

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