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buy used music and perform it

I know a group must purchase music to perform it. What about if group 1, who has legally purchased the music, sells the music to group 2? Can group 2 legally purchase the music from group 1 and perform that music? The copies will be original copies, of course, in that case, but the publisher has only been paid once for it. 
 
Is it legal to resell music that a group has purchased?
 
Is it legal to perform music that a group has purchased from another group?
 
What about borrowed music? Is it legal to borrow music from a group and perform it? Thanks!
Replies (6): Threaded | Chronological
on September 10, 2014 4:41am
Hi, Claudia.
 
Print rights and performance rights are separate issues within the copyright bundle. So your first sentence is a little bit off the mark. It's not that you have to buy the music to perform it; you do not have the right to make photocopies of somebody else's intellectual property. Therefore, you need to purchase adequate quantities in order to teach the piece. It does not matter from whom you buy the sheet music, or whether it is new or used, but you have to purchase legal (original) copies.
 
Should you decide to perform the music that is represented on that legally obtained paper, you must purchase a license from the owner. This is true regardless of whether you purchased it new. There are provisions that allow school and church ensembles to perform without additional fee in some circumstances, but NOT ALL. The Copyright Office has a description of Fair Use here, but MENC's performance exemption guidelines are the best standard to go by.
 
A few things to note (often overlooked by conductors):
 
1. Church choirs need no license for Sunday services, but do for a concert.
2. School concerts do not need to license their concerts, as long as nobody (NOBODY) is being paid or gaining any direct or indirect commercial advantage.
 
This is not very widely understood, unfortunately, and it seems to me that most of us are violating the law in this area, and therefore stealing from composers and publishers.
Applauded by an audience of 2
on September 10, 2014 6:55am
Tom,
 
Question about the school concert, NOBODY being paid clause.  Does my salary count?  I teach elementary school, and put on several performances a year as part of that, however I get no stipend or additional pay for staying late on concert days.  Thanks!
 
Kate
on September 10, 2014 8:27am
Consult a real lawyer if you're concerned, but the copyright law section 110(4) says "without payment of any fee or other compensation for the performance to any of its performers, promoters, or organizers". To my literal mind you aren't being given any compensation for the performance but rather for your overall teaching; if you gave an additional performance, or had to cancel yours on account of your car breaking down, you wouldn't get paid any more or less.

The bigger sticking point is likely to be your accompanist, who most likely is paid by the hour and so is being specifically compensated for playing the performance.

Check with your school district main office, though. Many districts have negotiated a "blanket" license which covers all performances within the district.
 
Applauded by an audience of 1
on September 10, 2014 11:02pm
What he said!
 
I agree with every point, especially the reminder that I'm a choir director and not a lawyer.
Applauded by an audience of 1
on September 11, 2014 9:06am
Thanks to you both!  That's what I thought too, but it's good to see we're all interpreting the same.  I'll check with my school system for bigger questions.
 
Kate
on September 10, 2014 12:29pm
1. You may legally sell used music without any additional compensation to the publisher/copyright holder under the "First Sale Doctrine," established by the Supreme Court in 1908.
 
2. You may legally perform music that has been published for sale and that you have aquired by borrowing or purchasing due to a "consent decree" with the US Department of Justice, but you must pay performance royalties. Publishers cannot forbid you from performing the work unless it is a theatrical work covered by "grand rights" or a work that has been published only for hire. The only exception to this is a recent development for works that were once public domain due to the nonrecognition of Soviet copyrights (ie Prokofiev, etc.) and available for sale but where the copyright is now honored since the signing of GATT in 1993.
 
If not a school or worship service performance, you may obtain a license to perform the works from two performing rights societies (known as PRO's): ASCAP and BMI, and license rates are based on gross concert receipts. There are different licenses available based on your type of organization, venue size, etc. Generally, by paying both license fees, you will be able to demonstrate a good faith attempt to pay performance royalties and would have a very strong defense if facing legal action, and the copyright holder who failes to register with these societies is deemed to have been unreachable for granting a compulsory license. There is a third PRO called SESAC, but that one is somewhat specialized and my recommendation is to ignore it unless it contacts you.
 
Although ASCAP makes an effort to allocate performance royalties by work, BMI does not and allocates receipts based on a sample of programs at noted venues nationwide. This means your performance royalty paid for performing Morten Lauridsen ends up as a check BMI writes to Lady Gaga.
 
Any contract to perform should address who's responsiblity it is to pay ASCAP/BMI fees; generally it's the entity that keeps the gross receipts.
 
 
 
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