balderdash111

A friend posed a question to me that I thought you might be able to help out with.

He works in a church, and they have semi-regular classical music concerts. They do not have a full time orchestra, obviously, so they hire musicians for one-night shows as needed. The musicians get paid a couple hundred bucks to play and that's it.

So, if the church were to record these performances and sell them to the congregation to raise money, is the expectation that these musicians get paid a cut of sales?

I know that legally the church should ask them to sign a waiver of future royalties, but as a practical matter, what is the expectation?

Thoughts?

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raveneye

My understanding is that the musicians own the copyright to the sound recording. The church can't legally sell the recording without permission of the musicians.

In a case like this there is no standard percentage that the musicians would expect. It's the church's responsibility though to get permission from the musicians, preferably in writing, before they make recordings or try to sell them.

I'm assuming the music itself is not copyrighted. If it is then the church needs to get permission from those copyright holders also.

There's nothing illegal about performance of copyrighted music in church, as far as I know. Trying to sell the recording without permission though is infringement.

shakran

Have the musicians sign an agreement that gives you exclusive rights to the performance. Then you only have to clear the copyright of the sheet music. This is assuming you can find a musician who will sign the rights away - I wouldn't do it

maestroxl

Usually churches supply the recordings for a "suggested donation". It probably makes the rights-to-profit issue moot.

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balderdash111

Thanks. Just to be clear: I know the musicians own the copyright in their performance, and I know you need to get clearances from the music publisher (not really an issue b/c the pieces in question are all way out of copyright protection by now).

I am looking for answers from actual professional musicians to see if they would willingly sign their rights away, would ask for more money or what? Maybe part of being in a musicians guild (is there such a thing?) is waiving these rights, for all I know.

Oh, and even if the church gives away the copies, they could still be hit with statutory damages, which can be plenty.

(also note: what is the practical risk here? assuming the recordings don't hit Billboard, would anyone actually sue?)

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raveneye

I'm a professional musician, and in general I personally would not allow someone to make copies of my performances and make those copies available to the public, unless I was involved in the production of those CDs and received some percentage of the income.

But of course I can't speak for all musicians, and as I said earlier (and someone else pointed out) this is not a very common situation. If I was involved in the church, then I might have no problem with it and consider it a personal "donation" to the church.

However, my guess is that most musicians would not be accepting of this. Your performance belongs to you, it does not belong to anybody else. As you point out, whether or not the copy is sold, it is still not legal to have copies in your posession, period, without permission of the performer.

Absolutely you could be sued for this, and you would lose the suit. This happens all the time. My advice would be to get written permission from the musicians and work out some fair monetary arrangement. How much they get would depend on how much work the church does in promoting the CDs. If the church does no promotion and simply puts them on a table, then a 50/50 split would be fair.

balderdash111

50/50? That seems extremely high. I think we can be pretty sure that when the New York Philharmonic (to use an example) records a symphony, the orchestra does not get 50% of the profits (and certainly not 50% of the income, as you mentioned above). I doubt they get anything at all beyond their base salary.

Maybe a soloist would get a percentage off the profits, but certainly not the other members of the orchestra.

You may have a different image of what is going on here. We are talking about a small group of musicians hired to play for a night. No soloists, no featured performers (other than perhaps the organist, but he's a whole different story), not a professional troupe or band.

Do you really think they expect a cut of profits? Or, to put it more bluntly, if the organizers explained what they were planning to do and asked them to sign a waiver of future interest in the recording or profits from sales, would they refuse to sign?

Sorry for seeming incredulous, but I think you are envisioning a different scenario.

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raveneye

As I said in my post, the percentage depends on how much promotion of the CD is being done by the church. In your example with the Philharmonic, the record company is investing a large sum in promoting the CD, and therefore expects a large percentage of profit. So you're exactly right that the performing musicians do not expect to get much out of the CD sales, and generally just receive a flat performance fee (which however can be quite large, in the several thousand range).

However, in the case of your church in which nobody is promoting the CD, both parties are equally dependent on each other and invest roughly the same amount of time, effort and probably money. So to me a 50/50 split seems reasonable.

Who knows? Why not ask them? Like I said, if I was a member of the church, I might consider it a donation and say go ahead. But an equal split is reasonable unless the church is going to print up a bunch of fliers and pay for advertisements etc., which I suspect is unlikely.

But the bottom line is you have to ask the performers before you do this anyway, so you'll find out then in any case.

OFKU0

If the music being played is written by the musicians, they own the music in which case they decide if they want a recording done in the first place and secondly, if they want it done at all. Usually they have management to iron out the details if agreed upon.

If these musicians are hired to play someone elses music and the venue wants a recording, usually a waiver accompanied by the contract is made available releasing rights to ones performance. And that's a crap shoot. Usually it gives the performers exposure and a resume builder as payoff. But if it's a hit, you as a musician get squat. But even then each senario is different.

Technically the church has to ask the musicians permission since it is a paying gig no matter whose music. To do otherwise would be a sin.

And as a musician signing stuff away? That's a crap shoot also. As told to me many years ago. 1% of something is better than 100% of nothing.

balderdash111

This confirms what I heard through other sources. FYI, the music in question is classical (as in Brahms, Beethoven, Mozart), so publishing rights really aren't an issue.

From what I understand from someone who is married to a professional musician and who has organized classical concerts (which are recorded) for a high school, here's how it goes:

Most of these musicians for hire are in a union, and they have rules about these kinds of things. So you'll need to check with them/the union about their rights and the fees they get if the performance is recorded. If they aren't in the union, you still need to get a waiver, but it's a bit more open as to what kind of deal you work out.

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Dbass

The main cost of making these cds is paying the publishers of the music, which as you said is usually not a problem. In my experience, I have been aware that recordings were made of my performances, and the fee I have received was based on my performance. As a small-scale printing will likely not be profitable enough to merit any significant payment to each individual musician- I would recommend simply informing them that a small run of the performance will be distributed with the church and ask if they are ok with it.

ubertuber

It would be a problem if the music is not in the public domain. Your post wasn't clear on this point, so I wanted to make sure it was up for thought. Most classical music is in the public domain because it is old, but ASCAP will be very pissed if you include something that is still under protection. It's worth checking because new editions and changes to scores can result in extended protection, and trust me, you don't want to screw that up. BTW, the Philharmonic musicians get paid more to record than to just perform.

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samzam

This represents the biggest problem facing professional musicians. If a church or any entity wishes to earn a profit from the sale of recorded music, it's unethical to assume they have no responsibility to pay those who created this product. A buyout for these services is a possible solution...but getting paid a couple of hundred dollars to play the gig does not constitute a buyout deal. Any musician who agrees to such an arrangement is at best misguided and at worst giving away the farm.

The other issue is the actual copyright and licensing required. It's rather inexpensive to pay the royalties in advance and a big problem if you get caught not paying before distribution.

The USA is on a short list of industrialized countries that does not pay performance royalties to musicians for the broadcast of their recordings on terrestrial radio stations. This is a multi-billion dollar business that does not pay a penny to the musicians whose music they use to create their demographic user base for advertising. After years of lobbying, we are close to passing this legislation...hopefully the new Congress will not shoot this down.

ganon

Local unions negotiate this (standard scale) and except for exeptions the musicians waive rights for the payment of mechanicals on the sale of the cds.

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