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Permission to Video

In a nutshell here's my situation: I've just completed a sizable piece for chorus and piano, and it's based on a set of very clever sci-fi poems. In order to use the text I first received a contract and permission from a very small mom-and-pop republishing firm which owns the rights. I have approached them now about a) making a video of the composition to be used as a tool for advertising the piece and for possible distribution within the musical and the scientific community, and b) eventually assigning the rights to my work to someone else once I am deceased. (I'm 70 and not in good health, which makes one think about such things!) Now, it looks to me as if my contract more or less addresses both issues, but, though I seem to have an amicable relationship with this small company, they have become  goosy now that I have raised performance rights questions.  I'm not so much looking for a definitive answer from those who may read this message, as much as I am hoping for a referral to someone with legal expertise in the area of intellectual property and performance rights. 
Replies (3): Threaded | Chronological
on August 23, 2014 4:14am
I decided to add to my posting, for clarification.  I am sympathetic with the publisher's position -- they are a small company, devoted to reprinting children's book, and they've never encountered a situation with performance rights.  Here are two portions of the contract, which I think imply that the writer of the contract had already anticipated these issues:  "SUBLICENSE: If Products are sub-licensed to any other entity, including broadcast and performance rights, income for sub-licensing shall be equally divided between Grantee and Grantor."   and "ASSIGNEMENT: The Agreement may not be assigned to any other party without Grantor's written consent."
on August 25, 2014 11:29am
When arranging use of lyrics, rights contracts specify an ownership percentage between lyricist and composer, often 50/50, but it can be more or less based upon the relative importance of lyricist and composer. The composer or composer's publisher should assume rights to exploit the musical composition and return the lyricist's ownership percentage of net revenue, but it's a matter of contractual relationships. Often there are production of books requirements.
 
The use of music in video is called "synchronization rights." In the USA, synchronization rights are administered through the music publisher. Since you are the composer and not registered as a publisher, the work may be considered to be unpublished.
 
For any published work, anyone is legally allowed to make an audio recording by paying a compulsary license fee (known as a "mechanical license" - a holdover from the days of player pianos) at the statutory rate set by the Library of Congress. If a publisher every says you can't make a recording of a published work, it is lying - the only exception by law is for theatrical works requiring a grand rights license. Therefore, by granting the composer the right to publish the work, the lyricist has allowed the textual content to be recorded for audio. Many publishers use the Harry Fox Agency to automatically issue mechanical licences. Therefore, on the video, you "synchronize" this audio recording with the video recording, even if both are made at the same time. Synchronization is not compulsory, however.
 
Because synchronization is not compulsary, the lyricist can withhold the right to grant a synchronization license if this is specified in the original contract. For a small publisher of poems, it would be stupid not to grant full exploitation rights, as there is really little money to be had. It would also be stupid to prohibit marketing and archival use, because that would diminish the potential financial return.
 
I've been involved in so many contracts where the legal expense has exceeded the recording sales and the co-owner has shot him/herself in the foot trying to get money for sales that simply will never happen. In my humble opinion, the complexities of copyright law, especially on this subject, actually inhibit the creation of creative work, and many composers use dusty antiquated public domain texts that have little or no relevance to contemporary society. The point of copyright law is specifically stated in the constitution to "promote the useful arts." Our legal system does the opposite: it promotes trust fund babies. I wish national service organizations such as ACDA and Chorus America would be better advocates for the public good in this area.
on September 3, 2014 2:52am
Thank you so much for your thoughtful reply.  You do raise an interesting question:  in these days when so many small-volume composers are "self-published" what does it now mean to "publish?"  In my case I'm having the books printed by a firm in New Jersey and I'm lisiting them on my website.  If I'm not already the publisher by defalut then I wonder what I could do to meet that qualification.
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