From: Rachel S Fox Von Swearingen <[log in to unmask]>
Date: Mon, 18 Mar 2024 17:01:13 +0000

Hi Jordan,



You are on the right track of it being a case-by-case question of looking
at each work on the recital/concert.  I am not a lawyer, but I spent many
years as a music librarian and have examined several different
institutions’ takes on how much risk they are willing to take on with their
concert/recital recordings. There’s multiple layers to examine, and the
level of risk varies as to how an institution justifies being able to make
the recording to begin with and how widely they justify being able to
distribute that recording. In what I have seen, to openly stream recordings
as you are exploring, the safest thing is to ensure that a) the underlying
musical work is public domain, b) the edition/arrangement are public
domain, and c) there is some sort of agreement with the performers.



Here’s more details on those things:



   1. Mechanical rights: Performance license (like ASCAP and BMI) do not
   include the right to record a work at all.  A mechanical license is needed
   from the rights holder if a work is under copyright. Live-streaming of a
   concert (without making an on-demand stream or physical recording
   afterwards) can fall under the performance license/broadcast license if a
   campus has one. In practice, some schools of music will take the angle of
   justifying the creation of a recording as fair use for educational use by
   the performers/teachers during class time or study time in the library. For
   theater performances, if a school rents scripts/scores (as is the case with
   most contemporary works), the right to create one video recording from
   one-camera angle is often included for educational use when the school
   signs the agreement with the rights holder. In either of these cases, I
   have seen institutions use their local policies for creating and
   distributing Copyright Section 108 preservation copies to guide how they
   handle the concert/recital recordings. In this, the institution’s
   definition of “library premises” comes into play on whether they stream at
   all or how widely they stream behind a login wall.



   1. Copyright status of work and arrangement: To deem a musical work to
   be public domain, you need to look at the copyright status of both the
   underlying musical work as well as the copyright status of the particular
   edition of that musical work. For example, if your orchestra performed from
   a pre-1929 edition of Beethoven’s Symphony no. 9, that would be fine.
   Beethoven works are public domain and the older edition is also public
   domain. If the orchestra performed the same work but with a 1929 or after
   edition, the editing of that score is likely subject to copyright and
   mechanical rights would need to be sought from the rights holder. Same
   logic follows with arrangements of works. Even if the original work is a
   public domain folk song, the orchestration or arrangement likely has a
   copyright from the publisher/arranger.



   1. Rights of performers: Performers have rights to their performances.
   Professional record producers will use a work-for-hire scenario where the
   performers sign their rights over to the entity creating the recording.
   Several schools of music will have students agree to some sort of statement
   at some point in their education saying that their performances are able to
   be used by the school. Guest artists or other non-school clinicians who
   visit campus also have rights and permissions need to be acquired from them
   (or included in their guest artist agreement) to allow both creating and
   distributing a recording.



Again, there’s a wide range of how much risk an institution is willing to
take. But public domain works, public domain editions, and performer
agreements are the safest route to facilitate open streaming.





Cheers,

Rachel



*Rachel Fox Von Swearingen*
Collections Lead Librarian

Syracuse University Libraries



315.443.9779

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222 Waverly Ave., Syracuse, NY 13244
syracuse.edu

Syracuse University


From: Jordan Ruud <[log in to unmask]>

Date: Fri, 15 Mar 2024 15:52:11 +0000

Greetings all – I’m fairly new to this side of things and wanted to run a
question by those with more experience in licensing. Our music faculty have
concert recordings that they’d like to deposit in our institutional
repository, which is publicly accessible. I’m not entirely sure about the
permissibility of this under our campus licenses with ASCAP and BMI (which
I assume are fairly standard licenses).



From experience, is depositing records like this generally permitted, or
(my fear) is it a case-by-case question of determining the ownership of
each composition in a concert recording to identify which can or can’t be
deposited?



Thanks and happy Friday,



Jordan Ruud

Interim Director and Collection Development Librarian, Boreham Library,
University of Arkansas – Fort Smith

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