New Copyright and Music-Licensing Acts

Meetings & Conventions: Planner's Portfolio December 1998
December 1998 PLANNER'S PORTFOLIO:

The Law & the Planner

BY JONATHAN HOWE


New Copyright and Music-Licensing Acts

How this legislation affects your meetings

We in the meetings industry have been watching several pieces of legislation concerning music licensing that have been making slow progress down in Washington. In this last session of Congress, two were finally enacted, both parts of the Copyright Act. One is an amendment called the “Sonny Bono Copyright Term Extension Act,” which is a paean to the composer, ex-husband of Cher and former member of Congress who died in a ski accident at the beginning of this year. The other is a new section, the Fairness in Music Licensing Act of 1998.

The Bono Act has significance to meeting professionals in several ways. First, it extends the life of copyright protection not only for the meeting professional who has or garners the right to copyright, but also for the sponsor of the event or a third party who uses the copyrighted material. For works created after Jan. 1, 1978, copyright protection is extended for the life of the author and out for 70 years after his death. (It used to be 50 years.) If it is a joint work, the copyright continues for the life of the last surviving creator plus 70 years.

Occasionally, organizations have songs or other works created specially for an event. These are considered works that are “made for hire” that is, you have contracted to have someone write it for you, and you lay claim to the copyright. In this case, the protection now lasts for 95 years from the date of publication or 120 years from its creation, whichever expires first. This applies to any organization that has a person write a book, compose a song, take a picture, or create any other item where the copyright is taken in the name of the organization rather than the individual author.

To avoid conflicts later, be sure when you hire someone to create for you that there is a written agreement between the author and the organization stating the product is a work for hire and that the creator cedes all copyrights to the organization. That way a song your clients might associate with your organization can’t be played at your rival’s meeting without your permission.

The Bono Act also extends by an additional 20 years the copyright-protected time period for works created before 1978, when the copyright law underwent a complete revision.

Some interesting provisions also have been added that allow a library, archive or nonprofit educational institution to reproduce, display or perform portions of a copyrighted material in its last 20 years of protection for purposes of preservation, scholarship or research, without the need of obtaining consent or paying a royalty. But, only one copy of the work can be reproduced.

The creator can object to such use, especially if the reason the work is being reproduced does not appear to be to preserve it. In other words, under no circumstances can a work be reproduced, distributed, displayed or performed if it is going to be commercially exploited or it is otherwise available at a reasonable price through the copyright owner or licensee. Many times a nonprofit organization may use and distribute copyrighted material thinking this is an exempt opportunity. It generally is not. For instance, before you distribute articles like this one, get the consent of the copyright holder, which in this case is M&C.

As to the Fairness in Music Licensing Act, it primarily exempts small retailers, restaurants and bars from paying royalties. The exemption is based on square footage and requires the performing rights society ASCAP, BMI or SESAC not to charge royalties for music played over radios or on TVs. This does not apply to CDs being spun by a deejay or songs being played by a live band.

What is significant about the legislation is what it did not do. Congress did not pass a provision that attempted to eliminate “vicarious” liability, which was advanced on behalf of various meeting and trade show associations. Currently, if you are a trade show sponsor and one of your exhibitors uses music that is unlicensed, you would be liable for the exploitation of the copyright because you let the exhibitor use the material.

All the debate on the issue of music licensing has resulted in changes to the basic contract between BMI and meeting professionals for the use of music at various programs, changes that benefited planners (see The Law & the Planner, November 1997). We’re still waiting for a revised agreement with ASCAP.

Jonathan T. Howe, Esq., is a senior partner in the Chicago and Washington, D.C., law firm of Howe & Hutton, Ltd., which specializes in meetings, travel and hospitality law.

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