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learning CD copyright question

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  • Ben McDaniel
    I ve noticed that most of the young men who make and sell their own learning CDs have a disclaimer on their websites stating that it is the responsibility of
    Message 1 of 28 , Sep 26, 2008
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      I've noticed that most of the young men who make and sell their own
      learning CDs have a disclaimer on their websites stating that it is
      the responsibility of the purchaser to pay mechanical licensing fees.
      Is this legal? It would be like a record store selling their own
      copies of CDs and telling their customers to pay Harry Fox directly,
      wouldn't it? Or a website like Napster saying that you can download
      all the music you like, so long as you pay Harry Fox. I don't think
      that would be legal, so is it legal to do with learning CDs?

      Whatever the legal ramifications are, there are practical problems
      with having individuals pay: the minimum number of copies you can pay
      for is 25, and there is a per-song processing fee in addition to the
      per-track fee. So a person who just needs one learning CD, which
      usually have 8 or 9 tracks of one song, must pay more than $17 in
      licensing for that one CD. (And then there's the legal question
      whether those 9 tracks count as one song or separate songs -- I'm sure
      that pop artists who have a "remix" version of a song have to pay
      separate song fees for it. If the 9 count as separate songs, that
      would be well over $100 in licensing fees.)

      The way it could be done instead would be like how the Society does
      music in the unpublished catalog -- you tell them how many copies you
      want, they pay the royalty and send you one copy and you get to make
      the number of copies you asked for and no more. The guys making the
      CDs could either buy a large number of copies up front and subtract
      from that number whenever someone made more copies, or they could just
      buy new mechanical licenses each time someone ordered, which may
      require the processing fee each time, I'm not sure. (If it did, the
      cost would be the same as noted in the previous paragraph, but it
      wouldn't seem like as much when wrapped up into a $150 or $200 price
      tag for a quartet or small chorus or perhaps a slightly larger price
      tag for a larger chorus.)

      It seems to me that the people making the learning CDs are just doing
      a little wink, wink, nudge, nudge -- they don't expect anyone to pay
      the fees, except perhaps some of the larger choruses. And even if it
      is legal to have the purchaser pay the fees, I doubt that the
      disclaimer of responsibility would hold up -- in other words if the
      customer fails to pay the fees (which they probably do in many cases),
      the guy making the recordings would be on the hook legally (probably
      jointly with the customer, but, since they are the ones making money,
      they would probably endure the brunt of the wrath of the industry and
      the courts).

      Is this an area where the Society is in danger of getting into
      trouble? I don't think the Society could be held legally responsible,
      but this could be a situation where the Society could ruin its
      reputation in the music industry.

      By the way, I'm not asking what the law should be, I'm asking what it
      is. In my opinion, those are two very different things!

      Ben McDaniel
      Lawyer, but not an expert on mechanical licensing fees
    • Ken Hatton
      I don t think so, Ben. It s more like the CD Replicator who makes the independent artist sign a document stating that the artist will be responsible for paying
      Message 2 of 28 , Sep 26, 2008
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        I don't think so, Ben.



        It's more like the CD Replicator who makes the independent artist sign a
        document stating that the artist will be responsible for paying any and all
        copyright fees. The artist placed the order for the discs he wanted to buy,
        and the manufacturer often assumes the artist will pay the mechanical
        license fees.



        The learning track guy is the manufacturer, and he makes CDs for those folks
        who want to order them. The folks who order are "using" the music, and
        should ultimately be responsible for liability associated with protected
        works. Perhaps there are learning track guys who would be willing to accept
        that liability, but they would probably have to charge a processing fee on
        top of the actual cost of the mechanical license fee, as the on-line payment
        can be a fairly time-consuming task.



        I think some of our barbershoppers lack empathy with the plight of the
        artists who write songs and arrangements, not to mention those who make
        learning tracks. The time, talent and education required to provide those
        things for our enjoyment are valuable, and many of those guys make part or
        all of their living doing it for us. They actually deserve a lot more than
        they get, and frankly, I'm kind of tired of reading complaints from
        barbershoppers who think we deserve to copy sheet music and MP3 files, and
        perform the songs for money without a proper license. By the way, artists
        also own performance rights to their recordings of works copyrighted by
        others.



        If we want to avoid paying for the use of others' property, we should write
        our own songs and arrangements, and make our own learning tracks. The
        winking and nodding is happening a lot more with the end-user; not with the
        worker bees.



        k-ray



        _____

        From: bbshop@yahoogroups.com [mailto:bbshop@yahoogroups.com] On Behalf Of
        Ben McDaniel
        Sent: Friday, September 26, 2008 10:45 AM
        To: BBSHOP
        Subject: [bbshop] learning CD copyright question



        I've noticed that most of the young men who make and sell their own
        learning CDs have a disclaimer on their websites stating that it is
        the responsibility of the purchaser to pay mechanical licensing fees.
        Is this legal? It would be like a record store selling their own
        copies of CDs and telling their customers to pay Harry Fox directly,
        wouldn't it? Or a website like Napster saying that you can download
        all the music you like, so long as you pay Harry Fox. I don't think
        that would be legal, so is it legal to do with learning CDs?

        Whatever the legal ramifications are, there are practical problems
        with having individuals pay: the minimum number of copies you can pay
        for is 25, and there is a per-song processing fee in addition to the
        per-track fee. So a person who just needs one learning CD, which
        usually have 8 or 9 tracks of one song, must pay more than $17 in
        licensing for that one CD. (And then there's the legal question
        whether those 9 tracks count as one song or separate songs -- I'm sure
        that pop artists who have a "remix" version of a song have to pay
        separate song fees for it. If the 9 count as separate songs, that
        would be well over $100 in licensing fees.)

        The way it could be done instead would be like how the Society does
        music in the unpublished catalog -- you tell them how many copies you
        want, they pay the royalty and send you one copy and you get to make
        the number of copies you asked for and no more. The guys making the
        CDs could either buy a large number of copies up front and subtract
        from that number whenever someone made more copies, or they could just
        buy new mechanical licenses each time someone ordered, which may
        require the processing fee each time, I'm not sure. (If it did, the
        cost would be the same as noted in the previous paragraph, but it
        wouldn't seem like as much when wrapped up into a $150 or $200 price
        tag for a quartet or small chorus or perhaps a slightly larger price
        tag for a larger chorus.)

        It seems to me that the people making the learning CDs are just doing
        a little wink, wink, nudge, nudge -- they don't expect anyone to pay
        the fees, except perhaps some of the larger choruses. And even if it
        is legal to have the purchaser pay the fees, I doubt that the
        disclaimer of responsibility would hold up -- in other words if the
        customer fails to pay the fees (which they probably do in many cases),
        the guy making the recordings would be on the hook legally (probably
        jointly with the customer, but, since they are the ones making money,
        they would probably endure the brunt of the wrath of the industry and
        the courts).

        Is this an area where the Society is in danger of getting into
        trouble? I don't think the Society could be held legally responsible,
        but this could be a situation where the Society could ruin its
        reputation in the music industry.

        By the way, I'm not asking what the law should be, I'm asking what it
        is. In my opinion, those are two very different things!

        Ben McDaniel
        Lawyer, but not an expert on mechanical licensing fees





        [Non-text portions of this message have been removed]
      • Ben McDaniel
        Again, I m no expert, but that sounds backwards. In the case of a CD replicator, the artist makes the recording and pays the fees, while the replicator just
        Message 3 of 28 , Sep 26, 2008
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          Again, I'm no expert, but that sounds backwards. In the case of a CD
          replicator, the artist makes the recording and pays the fees, while
          the replicator just makes the discs. In the case of the learning CD,
          the guy making the recording is the artist. (And if the buyer makes
          copies, that actually makes the buyer a replicator, not that that's
          relevant in this instance.) When the learning CD singer doesn't pay
          the fees, that would be more like a recording artist asking customers
          to pay Harry Fox directly after buying CDs.

          As far as who is doing the winking and nudging, perhaps we all are. I
          have the greatest respect for these guys, just as I do our great
          quartets and choruses who make recordings. But we wouldn't think
          highly of a practice where a quartet told people who bought their CDs
          to go out and pay royalties themselves, would we? That seems to me to
          be what these guys are doing.

          And I'm not saying it's wrong in a moral sense -- we could debate and
          discuss the rights of recording artists, live performers, songwriters,
          arrangers, and audiences forever and ever without reaching any
          agreement -- my question is what is the law, because I want our
          Society and our quartets and choruses and these great guys who make
          learning CDs to be protected. And I have made learning CDs myself, and
          I want to know how I should do it in order to be legal.

          I appreciate your perspective, but it just doesn't sound quite right.
          Of course, there may not be a clear legal answer -- most of these
          things are decided solely by the opinions of the music industry: when
          people are threatened by the industry, they don't want to go to court
          to prove the industry's interpretation is wrong, because then they
          risk losing their life savings and then some (even if they win, the
          lawyer fees could be staggering).

          And, once again, I'm not making moral judgments here; all the players
          in this, and all the various rights involved, are very important, and
          how those rights should be balanced is a terribly difficult question.
          For now, I just want to know how to follow the law.

          Ben McDaniel



          On Fri, Sep 26, 2008 at 10:06 AM, Ken Hatton <khatton@...> wrote:
          > ...
          > It's more like the CD Replicator who makes the independent artist sign a
          > document stating that the artist will be responsible for paying any and all
          > copyright fees. The artist placed the order for the discs he wanted to buy,
          > and the manufacturer often assumes the artist will pay the mechanical
          > license fees.
          >
          >
          >
          > The learning track guy is the manufacturer, and he makes CDs for those folks
          > who want to order them. The folks who order are "using" the music, and
          > should ultimately be responsible for liability associated with protected
          > works. Perhaps there are learning track guys who would be willing to accept
          > that liability, but they would probably have to charge a processing fee on
          > top of the actual cost of the mechanical license fee, as the on-line payment
          > can be a fairly time-consuming task.
          > ...
        • Tim Buell
          Ben, I agree with you from a purchasers perspective, but I just did a bit of research on the Harry Fox (HFA) site and discovered a couple of things that
          Message 4 of 28 , Sep 26, 2008
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            Ben,
            I agree with you from a purchasers perspective, but I just did a bit
            of research on the Harry Fox (HFA) site and discovered a couple of
            things that changed my mind.

            First, mechanical licenses cost $15 per song + $.091 per copy
            recorded, with a minimum number of 25. Given this, a learning CD set
            for a quartet, will run $15 + $2.275 = $17.28.

            My thinking had been, why doesn't the Learning CD maker obtain a
            license to make a lot of copies. The problem is that there is a
            limit of 2500 copies, unless you obtain an account with HFA, but then
            you have to file paperwork each month to track the copies you have
            made and distributed etc.

            Back to the number of copies, for a typical quartet, you would get a
            license for 25, but for VM with 180 members or so, you would probably
            need a minimum or 400, each CD having one part + the full mix.
            Expecting Tim Waurick, for example, to pre-pay for that many licenses
            ($51) for each potential chorus he sells to would not be to Tim's
            benefit. It definitely would not be to his benefit to keep a large
            license on hand, because what if he licensed for, say 2000 copies,
            expecting several quartets, and several choruses, and maybe the
            Harmony brigades to all buy a song. He would have to pre-pay $195
            and hope he actually sold that many.

            And all of that is per song. It also doesn't take into account when
            someone brings him a new song or arrangement to record. That opens
            up a whole new kettle of fish.

            Made my head spin just reading about it.

            Tim Buell
            Free State 4.

            --- In bbshop@yahoogroups.com, "Ben McDaniel" <benjaminmcdaniel@...>
            wrote:
            >
            > Again, I'm no expert, but that sounds backwards. In the case of a CD
            > replicator, the artist makes the recording and pays the fees, while
            > the replicator just makes the discs. In the case of the learning CD,
            > the guy making the recording is the artist. (And if the buyer makes
            > copies, that actually makes the buyer a replicator, not that that's
            > relevant in this instance.) When the learning CD singer doesn't pay
            > the fees, that would be more like a recording artist asking
            customers
            > to pay Harry Fox directly after buying CDs.
            >
            > As far as who is doing the winking and nudging, perhaps we all are.
            I
            > have the greatest respect for these guys, just as I do our great
            > quartets and choruses who make recordings. But we wouldn't think
            > highly of a practice where a quartet told people who bought their
            CDs
            > to go out and pay royalties themselves, would we? That seems to me
            to
            > be what these guys are doing.
            >
            > And I'm not saying it's wrong in a moral sense -- we could debate
            and
            > discuss the rights of recording artists, live performers,
            songwriters,
            > arrangers, and audiences forever and ever without reaching any
            > agreement -- my question is what is the law, because I want our
            > Society and our quartets and choruses and these great guys who make
            > learning CDs to be protected. And I have made learning CDs myself,
            and
            > I want to know how I should do it in order to be legal.
            >
            > I appreciate your perspective, but it just doesn't sound quite
            right.
            > Of course, there may not be a clear legal answer -- most of these
            > things are decided solely by the opinions of the music industry:
            when
            > people are threatened by the industry, they don't want to go to
            court
            > to prove the industry's interpretation is wrong, because then they
            > risk losing their life savings and then some (even if they win, the
            > lawyer fees could be staggering).
            >
            > And, once again, I'm not making moral judgments here; all the
            players
            > in this, and all the various rights involved, are very important,
            and
            > how those rights should be balanced is a terribly difficult
            question.
            > For now, I just want to know how to follow the law.
            >
            > Ben McDaniel
            >
            >
            >
            > On Fri, Sep 26, 2008 at 10:06 AM, Ken Hatton <khatton@...> wrote:
            > > ...
            > > It's more like the CD Replicator who makes the independent artist
            sign a
            > > document stating that the artist will be responsible for paying
            any and all
            > > copyright fees. The artist placed the order for the discs he
            wanted to buy,
            > > and the manufacturer often assumes the artist will pay the
            mechanical
            > > license fees.
            > >
            > >
            > >
            > > The learning track guy is the manufacturer, and he makes CDs for
            those folks
            > > who want to order them. The folks who order are "using" the
            music, and
            > > should ultimately be responsible for liability associated with
            protected
            > > works. Perhaps there are learning track guys who would be
            willing to accept
            > > that liability, but they would probably have to charge a
            processing fee on
            > > top of the actual cost of the mechanical license fee, as the on-
            line payment
            > > can be a fairly time-consuming task.
            > > ...
            >
          • Ben McDaniel
            Tim, Whether it s difficult or expensive is irrelevant to the issue of whether it is legal. And as a practical matter, you are right that prepaying for a
            Message 5 of 28 , Sep 26, 2008
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              Tim,

              Whether it's difficult or expensive is irrelevant to the issue of
              whether it is legal.

              And as a practical matter, you are right that prepaying for a couple
              of thousand copies doesn't make any sense. But most of the guys charge
              over $100 for new recordings and nearly $100 for recordings they've
              already done. If they didn't want to prepay, they could register and
              pay fees again each time they sell -- they could just tack all fees
              onto the price (maybe with a little extra for their time and effort in
              registering). So a quartet buying a new learning CD with the rights to
              make 4 copies might pay $40 or $50 more than these guys currently
              charge for learning CDs. And a large chorus would pay maybe $100
              extra. As a chorus or quartet member, I'd much prefer to do that
              rather than be in legal limbo. It really isn't that hard (especially
              once you got used to doing it all the time), nor would it be
              cost-prohibitive.

              And if it turns out that it is okay for the learning CD makers to
              disclaim responsibility (which I doubt), then they could offer the
              service of paying the fees, and charge a premium. (For example, they
              could tell a quartet, "I'll charge you $50 extra and pay the fees. If
              you don't want me to pay the fees, you are required by law to do it
              yourself, and it'll cost you about $20.")

              But if it is illegal to do otherwise, I wouldn't want to be the guy
              the industry decided to make an example of. That could cost many tens
              of thousands of dollars, and I doubt any of these guys are making
              enough from learning CDs that they could just ignore bills and fines
              that size.

              Of course, this is all my own speculation. I don't know for sure,
              which is why I'm asking!

              Thanks for your input,
              Ben McDaniel
            • Ken Hatton
              Mechanical License fees are payable at the statutory rate when duplications of an audio recording are manufactured, not when the master is first produced. If
              Message 6 of 28 , Sep 26, 2008
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                Mechanical License fees are payable at the statutory rate when duplications
                of an audio recording are manufactured, not when the master is first
                produced. If your interpretation regarding learning track makers is true,
                then all CD replicators would be liable for the fees. So far, none of those
                I have dealt with have paid any mechanical license fees, and that includes
                makers of LPs, cassettes and 8-tracks, going back lots of years.



                If the learning track maker has a letter signed by his customer accepting
                that liability, proper due diligence will have been demonstrated, and
                precedent backs it up. I doubt any judge would hold the learning track
                maker responsible in that event, as there was nothing "joint and several"
                about the agreement between the two parties.



                Of course, a judge has the "discretion" to hold the dog and cat of the
                listener liable if he or she wants to; so much for checks and balances.



                k-ray



                _____

                From: bbshop@yahoogroups.com [mailto:bbshop@yahoogroups.com] On Behalf Of
                Ben McDaniel
                Sent: Friday, September 26, 2008 11:30 AM
                To: Ken Hatton
                Cc: BBSHOP
                Subject: Re: [bbshop] learning CD copyright question



                Again, I'm no expert, but that sounds backwards. In the case of a CD
                replicator, the artist makes the recording and pays the fees, while
                the replicator just makes the discs. In the case of the learning CD,
                the guy making the recording is the artist. (And if the buyer makes
                copies, that actually makes the buyer a replicator, not that that's
                relevant in this instance.) When the learning CD singer doesn't pay
                the fees, that would be more like a recording artist asking customers
                to pay Harry Fox directly after buying CDs.

                As far as who is doing the winking and nudging, perhaps we all are. I
                have the greatest respect for these guys, just as I do our great
                quartets and choruses who make recordings. But we wouldn't think
                highly of a practice where a quartet told people who bought their CDs
                to go out and pay royalties themselves, would we? That seems to me to
                be what these guys are doing.

                And I'm not saying it's wrong in a moral sense -- we could debate and
                discuss the rights of recording artists, live performers, songwriters,
                arrangers, and audiences forever and ever without reaching any
                agreement -- my question is what is the law, because I want our
                Society and our quartets and choruses and these great guys who make
                learning CDs to be protected. And I have made learning CDs myself, and
                I want to know how I should do it in order to be legal.

                I appreciate your perspective, but it just doesn't sound quite right.
                Of course, there may not be a clear legal answer -- most of these
                things are decided solely by the opinions of the music industry: when
                people are threatened by the industry, they don't want to go to court
                to prove the industry's interpretation is wrong, because then they
                risk losing their life savings and then some (even if they win, the
                lawyer fees could be staggering).

                And, once again, I'm not making moral judgments here; all the players
                in this, and all the various rights involved, are very important, and
                how those rights should be balanced is a terribly difficult question.
                For now, I just want to know how to follow the law.

                Ben McDaniel

                On Fri, Sep 26, 2008 at 10:06 AM, Ken Hatton <khatton@att.
                <mailto:khatton%40att.net> net> wrote:
                > ...
                > It's more like the CD Replicator who makes the independent artist sign a
                > document stating that the artist will be responsible for paying any and
                all
                > copyright fees. The artist placed the order for the discs he wanted to
                buy,
                > and the manufacturer often assumes the artist will pay the mechanical
                > license fees.
                >
                >
                >
                > The learning track guy is the manufacturer, and he makes CDs for those
                folks
                > who want to order them. The folks who order are "using" the music, and
                > should ultimately be responsible for liability associated with protected
                > works. Perhaps there are learning track guys who would be willing to
                accept
                > that liability, but they would probably have to charge a processing fee on
                > top of the actual cost of the mechanical license fee, as the on-line
                payment
                > can be a fairly time-consuming task.
                > ...





                [Non-text portions of this message have been removed]
              • Tim Buell
                Part of the difference, I think, Kenny, is that the Learning CD maker is both the artist and manufacturer. Also, fees are payable upon purchase of the
                Message 7 of 28 , Sep 26, 2008
                • 0 Attachment
                  Part of the difference, I think, Kenny, is that the Learning CD maker
                  is both the artist and manufacturer. Also, fees are payable upon
                  purchase of the license. You can buy a license for 100 copies and
                  make only 10. You would still hold a valid license to make 90 more
                  at some future time, although I think the license does have an
                  expiration date attached.

                  Even so, I agree that having the LCD artist bear the cost of this,
                  would place an undue burden on them, for providing a service. From a
                  chorus perspective, it is no different than having our director make
                  a learning CD for us, which we get a mechanical licensing fee for.
                  The only difference is that we have contracted with an outside
                  individual to do the actual performance and mixing, using expertise
                  that we do not possess.

                  --- In bbshop@yahoogroups.com, "Ken Hatton" <khatton@...> wrote:
                  >
                  > Mechanical License fees are payable at the statutory rate when
                  duplications
                  > of an audio recording are manufactured, not when the master is first
                  > produced. If your interpretation regarding learning track makers
                  is true,
                  > then all CD replicators would be liable for the fees. So far, none
                  of those
                  > I have dealt with have paid any mechanical license fees, and that
                  includes
                  > makers of LPs, cassettes and 8-tracks, going back lots of years.
                  >
                  >
                  >
                  > If the learning track maker has a letter signed by his customer
                  accepting
                  > that liability, proper due diligence will have been demonstrated,
                  and
                  > precedent backs it up. I doubt any judge would hold the learning
                  track
                  > maker responsible in that event, as there was nothing "joint and
                  several"
                  > about the agreement between the two parties.
                  >
                  >
                  >
                  > Of course, a judge has the "discretion" to hold the dog and cat of
                  the
                  > listener liable if he or she wants to; so much for checks and
                  balances.
                  >
                  >
                  >
                  > k-ray
                  >
                  >
                  >
                  > _____
                  >
                  > From: bbshop@yahoogroups.com [mailto:bbshop@yahoogroups.com] On
                  Behalf Of
                  > Ben McDaniel
                  > Sent: Friday, September 26, 2008 11:30 AM
                  > To: Ken Hatton
                  > Cc: BBSHOP
                  > Subject: Re: [bbshop] learning CD copyright question
                  >
                  >
                  >
                  > Again, I'm no expert, but that sounds backwards. In the case of a CD
                  > replicator, the artist makes the recording and pays the fees, while
                  > the replicator just makes the discs. In the case of the learning CD,
                  > the guy making the recording is the artist. (And if the buyer makes
                  > copies, that actually makes the buyer a replicator, not that that's
                  > relevant in this instance.) When the learning CD singer doesn't pay
                  > the fees, that would be more like a recording artist asking
                  customers
                  > to pay Harry Fox directly after buying CDs.
                  >
                  > As far as who is doing the winking and nudging, perhaps we all are.
                  I
                  > have the greatest respect for these guys, just as I do our great
                  > quartets and choruses who make recordings. But we wouldn't think
                  > highly of a practice where a quartet told people who bought their
                  CDs
                  > to go out and pay royalties themselves, would we? That seems to me
                  to
                  > be what these guys are doing.
                  >
                  > And I'm not saying it's wrong in a moral sense -- we could debate
                  and
                  > discuss the rights of recording artists, live performers,
                  songwriters,
                  > arrangers, and audiences forever and ever without reaching any
                  > agreement -- my question is what is the law, because I want our
                  > Society and our quartets and choruses and these great guys who make
                  > learning CDs to be protected. And I have made learning CDs myself,
                  and
                  > I want to know how I should do it in order to be legal.
                  >
                  > I appreciate your perspective, but it just doesn't sound quite
                  right.
                  > Of course, there may not be a clear legal answer -- most of these
                  > things are decided solely by the opinions of the music industry:
                  when
                  > people are threatened by the industry, they don't want to go to
                  court
                  > to prove the industry's interpretation is wrong, because then they
                  > risk losing their life savings and then some (even if they win, the
                  > lawyer fees could be staggering).
                  >
                  > And, once again, I'm not making moral judgments here; all the
                  players
                  > in this, and all the various rights involved, are very important,
                  and
                  > how those rights should be balanced is a terribly difficult
                  question.
                  > For now, I just want to know how to follow the law.
                  >
                  > Ben McDaniel
                  >
                  > On Fri, Sep 26, 2008 at 10:06 AM, Ken Hatton <khatton@att.
                  > <mailto:khatton%40att.net> net> wrote:
                  > > ...
                  > > It's more like the CD Replicator who makes the independent artist
                  sign a
                  > > document stating that the artist will be responsible for paying
                  any and
                  > all
                  > > copyright fees. The artist placed the order for the discs he
                  wanted to
                  > buy,
                  > > and the manufacturer often assumes the artist will pay the
                  mechanical
                  > > license fees.
                  > >
                  > >
                  > >
                  > > The learning track guy is the manufacturer, and he makes CDs for
                  those
                  > folks
                  > > who want to order them. The folks who order are "using" the
                  music, and
                  > > should ultimately be responsible for liability associated with
                  protected
                  > > works. Perhaps there are learning track guys who would be willing
                  to
                  > accept
                  > > that liability, but they would probably have to charge a
                  processing fee on
                  > > top of the actual cost of the mechanical license fee, as the on-
                  line
                  > payment
                  > > can be a fairly time-consuming task.
                  > > ...
                  >
                  >
                  >
                  >
                  >
                  > [Non-text portions of this message have been removed]
                  >
                • Ben McDaniel
                  Maybe I m just not understanding you, but your example still sounds backwards. You re saying that the fees are due when the duplication is made, not when the
                  Message 8 of 28 , Sep 26, 2008
                  • 0 Attachment
                    Maybe I'm just not understanding you, but your example still sounds
                    backwards. You're saying that the fees are due when the duplication is
                    made, not when the master is produced, and in this case, the learning
                    CD singer makes the master but not the duplications. That makes sense.
                    But then you say that artists (who make masters) pay royalties, but
                    not replicators (who manufacture copies). Isn't that precisely the
                    opposite?

                    And is this not analogous to how the Society pays royalties for copies
                    of music that are actually photocopied by the purchaser? I know the
                    law governing them is distinct, but is it different on this issue?

                    And, while this may be a case where liability can be disclaimed, it
                    also may not be. If it's illegal for them to sell the recording
                    without paying the royalty, liability for it can't be disclaimed.
                    Pardon the extreme example, but that's like saying a hit man isn't
                    liable for a death if the contract disclaimed liability. On the other
                    hand, if you are correct that it is not illegal, then you are right
                    that the civil liability would probably be able to be disclaimed as
                    well.

                    Ben McDaniel
                  • Tim Buell
                    I covered this point in a subsequent post, which you can t have seen yet. I view this as contracting for a service that I can t provide myself, namely,
                    Message 9 of 28 , Sep 26, 2008
                    • 0 Attachment
                      I covered this point in a subsequent post, which you can't have seen
                      yet. I view this as contracting for a service that I can't provide
                      myself, namely, performing the cuts for each of the separate parts,
                      accurately, so that I can learn them. The fact that I want it in CD
                      form, is my responsibility, not my contracted worker.

                      I believe that is the relationship that makes this legal. It would
                      probably be to the Learning CD makers benefit to require a copy of
                      the mechanical license for his files, in case the question comes up,
                      but all the law requires is for someone to pay the fees.

                      Tim

                      --- In bbshop@yahoogroups.com, "Ben McDaniel" <benjaminmcdaniel@...>
                      wrote:
                      >
                      > Tim,
                      >
                      > Whether it's difficult or expensive is irrelevant to the issue of
                      > whether it is legal.
                      >
                      > And as a practical matter, you are right that prepaying for a couple
                      > of thousand copies doesn't make any sense. But most of the guys
                      charge
                      > over $100 for new recordings and nearly $100 for recordings they've
                      > already done. If they didn't want to prepay, they could register and
                      > pay fees again each time they sell -- they could just tack all fees
                      > onto the price (maybe with a little extra for their time and effort
                      in
                      > registering). So a quartet buying a new learning CD with the rights
                      to
                      > make 4 copies might pay $40 or $50 more than these guys currently
                      > charge for learning CDs. And a large chorus would pay maybe $100
                      > extra. As a chorus or quartet member, I'd much prefer to do that
                      > rather than be in legal limbo. It really isn't that hard (especially
                      > once you got used to doing it all the time), nor would it be
                      > cost-prohibitive.
                      >
                      > And if it turns out that it is okay for the learning CD makers to
                      > disclaim responsibility (which I doubt), then they could offer the
                      > service of paying the fees, and charge a premium. (For example, they
                      > could tell a quartet, "I'll charge you $50 extra and pay the fees.
                      If
                      > you don't want me to pay the fees, you are required by law to do it
                      > yourself, and it'll cost you about $20.")
                      >
                      > But if it is illegal to do otherwise, I wouldn't want to be the guy
                      > the industry decided to make an example of. That could cost many
                      tens
                      > of thousands of dollars, and I doubt any of these guys are making
                      > enough from learning CDs that they could just ignore bills and fines
                      > that size.
                      >
                      > Of course, this is all my own speculation. I don't know for sure,
                      > which is why I'm asking!
                      >
                      > Thanks for your input,
                      > Ben McDaniel
                      >
                    • Jamie Bedford
                      I m a little confused by all of this... how is a learning track creator any different than any other artist creating and selling tracks of music? They re still
                      Message 10 of 28 , Sep 26, 2008
                      • 0 Attachment
                        I'm a little confused by all of this... how is a learning track creator any
                        different than any other artist creating and selling tracks of music?
                        They're still (for the most part) taking music written by someone else and
                        producing a track of it. When my a cappella group in college did that we
                        were required to pay mechanical licensing fees for each song on our CD which
                        wasn't public domain, and we were required to pay the arranger of those
                        songs (when it wasn't in-house) for the number of copies of the arrangement
                        we used.

                        Recording artist legally gets (or creates) one copy of arrangement, records
                        track, gets mechanical licensing for the song (if not created in-house) and
                        sells the track to 3rd party. Included in the cost of the track to the 3rd
                        party is the licensing fees for the song.

                        Learning track creator (notice I'm saying track, not CD, because I doubt if
                        the medium matters) gets one copy of an arrangement, records track, gets
                        mechanical licensing, sells track to 3rd party. Included in the cost of the
                        track should be the licensing fees for the song.

                        All of this stuff about reproduction and whatnot seems irrelevant. If
                        someone reproduces copies of a track that they don't have the rights for,
                        whether that be the track creator or the third party, that is illegal... is
                        it not?

                        The thing that is questionable in my mind is whether putting rebalanced
                        versions of the same song makes it count as a different song. None of the
                        notes or words change, only the stereo separation and balance... so does
                        that mean that it's a different song or not? That depends on the definition
                        of "song" (or whatever term is appropriate). I imagine that if the learning
                        track creator gives a chorus 100 CDs with 5 tracks on each of one song
                        that's just rebalanced/remixed into part-predominant tracks and a stereo
                        mix, that probably counts as one song with 500 tracks of that song and
                        requires that many licenses. I don't know the law about this, but I think
                        it's less likely that it would require 5 different songs with 100 tracks of
                        each since notes/words are all exactly the same. Does anyone know where to
                        find this info?

                        Side note: it's ridiculous that you can't get a single-copy mechanical
                        license for a given song considering the current state of digital media and
                        electronic billing.

                        This is a very interesting discussion, and I'm quite curious to see what is
                        actually legal (as well as what people think should be legal).

                        Jamie Bedford


                        On Fri, Sep 26, 2008 at 9:43 AM, Tim Buell <tpbuell@...> wrote:

                        > I covered this point in a subsequent post, which you can't have seen
                        > yet. I view this as contracting for a service that I can't provide
                        > myself, namely, performing the cuts for each of the separate parts,
                        > accurately, so that I can learn them. The fact that I want it in CD
                        > form, is my responsibility, not my contracted worker.
                        >
                        > I believe that is the relationship that makes this legal. It would
                        > probably be to the Learning CD makers benefit to require a copy of
                        > the mechanical license for his files, in case the question comes up,
                        > but all the law requires is for someone to pay the fees.
                        >
                        > Tim
                        >
                        >
                        > --- In bbshop@yahoogroups.com <bbshop%40yahoogroups.com>, "Ben McDaniel"
                        > <benjaminmcdaniel@...>
                        > wrote:
                        > >
                        > > Tim,
                        > >
                        > > Whether it's difficult or expensive is irrelevant to the issue of
                        > > whether it is legal.
                        > >
                        > > And as a practical matter, you are right that prepaying for a couple
                        > > of thousand copies doesn't make any sense. But most of the guys
                        > charge
                        > > over $100 for new recordings and nearly $100 for recordings they've
                        > > already done. If they didn't want to prepay, they could register and
                        > > pay fees again each time they sell -- they could just tack all fees
                        > > onto the price (maybe with a little extra for their time and effort
                        > in
                        > > registering). So a quartet buying a new learning CD with the rights
                        > to
                        > > make 4 copies might pay $40 or $50 more than these guys currently
                        > > charge for learning CDs. And a large chorus would pay maybe $100
                        > > extra. As a chorus or quartet member, I'd much prefer to do that
                        > > rather than be in legal limbo. It really isn't that hard (especially
                        > > once you got used to doing it all the time), nor would it be
                        > > cost-prohibitive.
                        > >
                        > > And if it turns out that it is okay for the learning CD makers to
                        > > disclaim responsibility (which I doubt), then they could offer the
                        > > service of paying the fees, and charge a premium. (For example, they
                        > > could tell a quartet, "I'll charge you $50 extra and pay the fees.
                        > If
                        > > you don't want me to pay the fees, you are required by law to do it
                        > > yourself, and it'll cost you about $20.")
                        > >
                        > > But if it is illegal to do otherwise, I wouldn't want to be the guy
                        > > the industry decided to make an example of. That could cost many
                        > tens
                        > > of thousands of dollars, and I doubt any of these guys are making
                        > > enough from learning CDs that they could just ignore bills and fines
                        > > that size.
                        > >
                        > > Of course, this is all my own speculation. I don't know for sure,
                        > > which is why I'm asking!
                        > >
                        > > Thanks for your input,
                        > > Ben McDaniel
                        > >
                        >
                        >
                        >


                        [Non-text portions of this message have been removed]
                      • Tim Buell
                        By Song , they mean Arrangement , not mix, so a Lead track, Tenor track, Bari track, Bass track and a full mix count as 5 copies of one song. I think the
                        Message 11 of 28 , Sep 26, 2008
                        • 0 Attachment
                          By "Song", they mean "Arrangement", not mix, so a Lead track, Tenor
                          track, Bari track, Bass track and a full mix count as 5 copies of one
                          song.

                          I think the difference in Learning track case is volume. When your
                          group made its CD, it was with the intent to sell in volume. I
                          expect that the minimum CD run you could make was probably about 2500
                          to 5000. That puts you into a whole different licensing ballpark,
                          and it also changes the business model. You are no longer providing
                          a service, you are selling a product.

                          Medium actually does matter slightly. There is a different type of
                          license for Permanent Digital copies (think iPod), versus Physical
                          copies (CD, DVD, etc).

                          Typically though, I believe that the LCD creator transmits one
                          digital copy to the purchaser, which becomes the master copy. The
                          purchaser then uses his own mechanical license to burn off copies to
                          hard media.

                          Tim

                          --- In bbshop@yahoogroups.com, "Jamie Bedford" <jrbedford@...> wrote:
                          >
                          > I'm a little confused by all of this... how is a learning track
                          creator any
                          > different than any other artist creating and selling tracks of
                          music?
                          > They're still (for the most part) taking music written by someone
                          else and
                          > producing a track of it. When my a cappella group in college did
                          that we
                          > were required to pay mechanical licensing fees for each song on our
                          CD which
                          > wasn't public domain, and we were required to pay the arranger of
                          those
                          > songs (when it wasn't in-house) for the number of copies of the
                          arrangement
                          > we used.
                          >
                          > Recording artist legally gets (or creates) one copy of arrangement,
                          records
                          > track, gets mechanical licensing for the song (if not created in-
                          house) and
                          > sells the track to 3rd party. Included in the cost of the track to
                          the 3rd
                          > party is the licensing fees for the song.
                          >
                          > Learning track creator (notice I'm saying track, not CD, because I
                          doubt if
                          > the medium matters) gets one copy of an arrangement, records track,
                          gets
                          > mechanical licensing, sells track to 3rd party. Included in the
                          cost of the
                          > track should be the licensing fees for the song.
                          >
                          > All of this stuff about reproduction and whatnot seems irrelevant.
                          If
                          > someone reproduces copies of a track that they don't have the
                          rights for,
                          > whether that be the track creator or the third party, that is
                          illegal... is
                          > it not?
                          >
                          > The thing that is questionable in my mind is whether putting
                          rebalanced
                          > versions of the same song makes it count as a different song. None
                          of the
                          > notes or words change, only the stereo separation and balance... so
                          does
                          > that mean that it's a different song or not? That depends on the
                          definition
                          > of "song" (or whatever term is appropriate). I imagine that if the
                          learning
                          > track creator gives a chorus 100 CDs with 5 tracks on each of one
                          song
                          > that's just rebalanced/remixed into part-predominant tracks and a
                          stereo
                          > mix, that probably counts as one song with 500 tracks of that song
                          and
                          > requires that many licenses. I don't know the law about this, but
                          I think
                          > it's less likely that it would require 5 different songs with 100
                          tracks of
                          > each since notes/words are all exactly the same. Does anyone know
                          where to
                          > find this info?
                          >
                          > Side note: it's ridiculous that you can't get a single-copy
                          mechanical
                          > license for a given song considering the current state of digital
                          media and
                          > electronic billing.
                          >
                          > This is a very interesting discussion, and I'm quite curious to see
                          what is
                          > actually legal (as well as what people think should be legal).
                          >
                          > Jamie Bedford
                          >
                          >
                          > On Fri, Sep 26, 2008 at 9:43 AM, Tim Buell <tpbuell@...> wrote:
                          >
                          > > I covered this point in a subsequent post, which you can't have
                          seen
                          > > yet. I view this as contracting for a service that I can't provide
                          > > myself, namely, performing the cuts for each of the separate
                          parts,
                          > > accurately, so that I can learn them. The fact that I want it in
                          CD
                          > > form, is my responsibility, not my contracted worker.
                          > >
                          > > I believe that is the relationship that makes this legal. It would
                          > > probably be to the Learning CD makers benefit to require a copy of
                          > > the mechanical license for his files, in case the question comes
                          up,
                          > > but all the law requires is for someone to pay the fees.
                          > >
                          > > Tim
                          > >
                          > >
                          > > --- In bbshop@yahoogroups.com <bbshop%40yahoogroups.com>, "Ben
                          McDaniel"
                          > > <benjaminmcdaniel@>
                          > > wrote:
                          > > >
                          > > > Tim,
                          > > >
                          > > > Whether it's difficult or expensive is irrelevant to the issue
                          of
                          > > > whether it is legal.
                          > > >
                          > > > And as a practical matter, you are right that prepaying for a
                          couple
                          > > > of thousand copies doesn't make any sense. But most of the guys
                          > > charge
                          > > > over $100 for new recordings and nearly $100 for recordings
                          they've
                          > > > already done. If they didn't want to prepay, they could
                          register and
                          > > > pay fees again each time they sell -- they could just tack all
                          fees
                          > > > onto the price (maybe with a little extra for their time and
                          effort
                          > > in
                          > > > registering). So a quartet buying a new learning CD with the
                          rights
                          > > to
                          > > > make 4 copies might pay $40 or $50 more than these guys
                          currently
                          > > > charge for learning CDs. And a large chorus would pay maybe $100
                          > > > extra. As a chorus or quartet member, I'd much prefer to do that
                          > > > rather than be in legal limbo. It really isn't that hard
                          (especially
                          > > > once you got used to doing it all the time), nor would it be
                          > > > cost-prohibitive.
                          > > >
                          > > > And if it turns out that it is okay for the learning CD makers
                          to
                          > > > disclaim responsibility (which I doubt), then they could offer
                          the
                          > > > service of paying the fees, and charge a premium. (For example,
                          they
                          > > > could tell a quartet, "I'll charge you $50 extra and pay the
                          fees.
                          > > If
                          > > > you don't want me to pay the fees, you are required by law to
                          do it
                          > > > yourself, and it'll cost you about $20.")
                          > > >
                          > > > But if it is illegal to do otherwise, I wouldn't want to be the
                          guy
                          > > > the industry decided to make an example of. That could cost many
                          > > tens
                          > > > of thousands of dollars, and I doubt any of these guys are
                          making
                          > > > enough from learning CDs that they could just ignore bills and
                          fines
                          > > > that size.
                          > > >
                          > > > Of course, this is all my own speculation. I don't know for
                          sure,
                          > > > which is why I'm asking!
                          > > >
                          > > > Thanks for your input,
                          > > > Ben McDaniel
                          > > >
                          > >
                          > >
                          > >
                          >
                          >
                          > [Non-text portions of this message have been removed]
                          >
                        • Ken Hatton
                          Yes, copyright law can be confusing. It doesn t matter who pays for the mechanical license fee as long as somebody does. Whether it s the guy whose voice you
                          Message 12 of 28 , Sep 26, 2008
                          • 0 Attachment
                            Yes, copyright law can be confusing.



                            It doesn't matter who pays for the mechanical license fee as long as
                            somebody does. Whether it's the guy whose voice you hear or the trombone
                            player or the duplication house; the copyright owner doesn't care where the
                            payment comes from. If it's not paid, everyone who touched the process is
                            potentially liable for the damages, just like the manufacturer, distributor,
                            owner and driver of a car would be possibly liable for damages resulting
                            from an accident.



                            And yes, each and every duplication of each and every protected song (or
                            part of a song) requires a mechanical license, even if it's the same song
                            and even if it's the same identical track on the same CD more than once.



                            As for being ridiculous, it's ridiculous to expect the owner of a copyright
                            to take his time to review the request, process and issue a license for four
                            copies of a protected work and pay an attorney to be prepared to watch out
                            for his interests, just so he can collect a big fat 39 cents in fees.



                            Native Americans weren't familiar with the European concept of owning trees,
                            animals and land, much less money. It seems the contemporary American has
                            forgotten how people can possibly own the rights to patents, books, scripts,
                            songs, musical arrangements, and other intellectual property. The concept
                            of money and protection from property abuse as enforced by government is
                            what motivates people to create new inventions, write books, and yes, write
                            songs. Without them, there would have been no Irving Berlin, Cole Porter or
                            Harold Arlen songs for us to sing, and don't forget, no telephone, no
                            electricity and no computer for us to communicate our complaints.



                            k-ray







                            _____

                            From: bbshop@yahoogroups.com [mailto:bbshop@yahoogroups.com] On Behalf Of
                            Jamie Bedford
                            Sent: Friday, September 26, 2008 1:07 PM
                            To: bbshop@yahoogroups.com
                            Subject: Re: [bbshop] Re: learning CD copyright question



                            I'm a little confused by all of this... how is a learning track creator any
                            different than any other artist creating and selling tracks of music?
                            They're still (for the most part) taking music written by someone else and
                            producing a track of it. When my a cappella group in college did that we
                            were required to pay mechanical licensing fees for each song on our CD which
                            wasn't public domain, and we were required to pay the arranger of those
                            songs (when it wasn't in-house) for the number of copies of the arrangement
                            we used.

                            Recording artist legally gets (or creates) one copy of arrangement, records
                            track, gets mechanical licensing for the song (if not created in-house) and
                            sells the track to 3rd party. Included in the cost of the track to the 3rd
                            party is the licensing fees for the song.

                            Learning track creator (notice I'm saying track, not CD, because I doubt if
                            the medium matters) gets one copy of an arrangement, records track, gets
                            mechanical licensing, sells track to 3rd party. Included in the cost of the
                            track should be the licensing fees for the song.

                            All of this stuff about reproduction and whatnot seems irrelevant. If
                            someone reproduces copies of a track that they don't have the rights for,
                            whether that be the track creator or the third party, that is illegal... is
                            it not?

                            The thing that is questionable in my mind is whether putting rebalanced
                            versions of the same song makes it count as a different song. None of the
                            notes or words change, only the stereo separation and balance... so does
                            that mean that it's a different song or not? That depends on the definition
                            of "song" (or whatever term is appropriate). I imagine that if the learning
                            track creator gives a chorus 100 CDs with 5 tracks on each of one song
                            that's just rebalanced/remixed into part-predominant tracks and a stereo
                            mix, that probably counts as one song with 500 tracks of that song and
                            requires that many licenses. I don't know the law about this, but I think
                            it's less likely that it would require 5 different songs with 100 tracks of
                            each since notes/words are all exactly the same. Does anyone know where to
                            find this info?

                            Side note: it's ridiculous that you can't get a single-copy mechanical
                            license for a given song considering the current state of digital media and
                            electronic billing.

                            This is a very interesting discussion, and I'm quite curious to see what is
                            actually legal (as well as what people think should be legal).

                            Jamie Bedford

                            On Fri, Sep 26, 2008 at 9:43 AM, Tim Buell <tpbuell@gmail.
                            <mailto:tpbuell%40gmail.com> com> wrote:

                            > I covered this point in a subsequent post, which you can't have seen
                            > yet. I view this as contracting for a service that I can't provide
                            > myself, namely, performing the cuts for each of the separate parts,
                            > accurately, so that I can learn them. The fact that I want it in CD
                            > form, is my responsibility, not my contracted worker.
                            >
                            > I believe that is the relationship that makes this legal. It would
                            > probably be to the Learning CD makers benefit to require a copy of
                            > the mechanical license for his files, in case the question comes up,
                            > but all the law requires is for someone to pay the fees.
                            >
                            > Tim
                            >
                            >
                            > --- In bbshop@yahoogroups. <mailto:bbshop%40yahoogroups.com> com
                            <bbshop%40yahoogroups.com>, "Ben McDaniel"
                            > <benjaminmcdaniel@...>
                            > wrote:
                            > >
                            > > Tim,
                            > >
                            > > Whether it's difficult or expensive is irrelevant to the issue of
                            > > whether it is legal.
                            > >
                            > > And as a practical matter, you are right that prepaying for a couple
                            > > of thousand copies doesn't make any sense. But most of the guys
                            > charge
                            > > over $100 for new recordings and nearly $100 for recordings they've
                            > > already done. If they didn't want to prepay, they could register and
                            > > pay fees again each time they sell -- they could just tack all fees
                            > > onto the price (maybe with a little extra for their time and effort
                            > in
                            > > registering). So a quartet buying a new learning CD with the rights
                            > to
                            > > make 4 copies might pay $40 or $50 more than these guys currently
                            > > charge for learning CDs. And a large chorus would pay maybe $100
                            > > extra. As a chorus or quartet member, I'd much prefer to do that
                            > > rather than be in legal limbo. It really isn't that hard (especially
                            > > once you got used to doing it all the time), nor would it be
                            > > cost-prohibitive.
                            > >
                            > > And if it turns out that it is okay for the learning CD makers to
                            > > disclaim responsibility (which I doubt), then they could offer the
                            > > service of paying the fees, and charge a premium. (For example, they
                            > > could tell a quartet, "I'll charge you $50 extra and pay the fees.
                            > If
                            > > you don't want me to pay the fees, you are required by law to do it
                            > > yourself, and it'll cost you about $20.")
                            > >
                            > > But if it is illegal to do otherwise, I wouldn't want to be the guy
                            > > the industry decided to make an example of. That could cost many
                            > tens
                            > > of thousands of dollars, and I doubt any of these guys are making
                            > > enough from learning CDs that they could just ignore bills and fines
                            > > that size.
                            > >
                            > > Of course, this is all my own speculation. I don't know for sure,
                            > > which is why I'm asking!
                            > >
                            > > Thanks for your input,
                            > > Ben McDaniel
                            > >
                            >
                            >
                            >

                            [Non-text portions of this message have been removed]





                            [Non-text portions of this message have been removed]
                          • Bruce
                            Just to throw another monkey wrench into the philosophical discussion of things.... ...if I have a copy of a piece that was recorded in stereo, and can use my
                            Message 13 of 28 , Sep 26, 2008
                            • 0 Attachment
                              Just to throw another monkey wrench into the philosophical
                              discussion of things....

                              ...if I have a copy of a piece that was recorded in stereo,
                              and can use my left right balance to record only one channel
                              to a CD, and the other channel to another CD.... I have only
                              made one copy of the song, no?

                              ...or does that mean that the original was actually TWO
                              songs, and that the copyright owner was due twice the
                              mechanical license?

                              ...or the guy wrote a symphony for an orchestra, and I'm
                              only recording the bass drum part...

                              ...just food for thought...

                              Bruce Checca
                              Saratoga NY

                              Jamie Bedford wrote:
                              >
                              >
                              > I'm a little confused by all of this... how is a learning track creator any
                              > different than any other artist creating and selling tracks of music?
                              > They're still (for the most part) taking music written by someone else and
                              > producing a track of it. When my a cappella group in college did that we
                              > were required to pay mechanical licensing fees for each song on our CD which
                              > wasn't public domain, and we were required to pay the arranger of those
                              > songs (when it wasn't in-house) for the number of copies of the arrangement
                              > we used.
                              >
                              > Recording artist legally gets (or creates) one copy of arrangement, records
                              > track, gets mechanical licensing for the song (if not created in-house) and
                              > sells the track to 3rd party. Included in the cost of the track to the 3rd
                              > party is the licensing fees for the song.
                              >
                              > Learning track creator (notice I'm saying track, not CD, because I doubt if
                              > the medium matters) gets one copy of an arrangement, records track, gets
                              > mechanical licensing, sells track to 3rd party. Included in the cost of the
                              > track should be the licensing fees for the song.
                              >
                              > All of this stuff about reproduction and whatnot seems irrelevant. If
                              > someone reproduces copies of a track that they don't have the rights for,
                              > whether that be the track creator or the third party, that is illegal... is
                              > it not?
                              >
                              > The thing that is questionable in my mind is whether putting rebalanced
                              > versions of the same song makes it count as a different song. None of the
                              > notes or words change, only the stereo separation and balance... so does
                              > that mean that it's a different song or not? That depends on the definition
                              > of "song" (or whatever term is appropriate). I imagine that if the learning
                              > track creator gives a chorus 100 CDs with 5 tracks on each of one song
                              > that's just rebalanced/remixed into part-predominant tracks and a stereo
                              > mix, that probably counts as one song with 500 tracks of that song and
                              > requires that many licenses. I don't know the law about this, but I think
                              > it's less likely that it would require 5 different songs with 100 tracks of
                              > each since notes/words are all exactly the same. Does anyone know where to
                              > find this info?
                              >
                              > Side note: it's ridiculous that you can't get a single-copy mechanical
                              > license for a given song considering the current state of digital media and
                              > electronic billing.
                              >
                              > This is a very interesting discussion, and I'm quite curious to see what is
                              > actually legal (as well as what people think should be legal).
                              >
                              > Jamie Bedford
                              >
                              > On Fri, Sep 26, 2008 at 9:43 AM, Tim Buell <tpbuell@...
                              > <mailto:tpbuell%40gmail.com>> wrote:
                              >
                              > > I covered this point in a subsequent post, which you can't have seen
                              > > yet. I view this as contracting for a service that I can't provide
                              > > myself, namely, performing the cuts for each of the separate parts,
                              > > accurately, so that I can learn them. The fact that I want it in CD
                              > > form, is my responsibility, not my contracted worker.
                              > >
                              > > I believe that is the relationship that makes this legal. It would
                              > > probably be to the Learning CD makers benefit to require a copy of
                              > > the mechanical license for his files, in case the question comes up,
                              > > but all the law requires is for someone to pay the fees.
                              > >
                              > > Tim
                              > >
                              > >
                              > > --- In bbshop@yahoogroups.com <mailto:bbshop%40yahoogroups.com>
                              > <bbshop%40yahoogroups.com>, "Ben McDaniel"
                              > > <benjaminmcdaniel@...>
                              > > wrote:
                              > > >
                              > > > Tim,
                              > > >
                              > > > Whether it's difficult or expensive is irrelevant to the issue of
                              > > > whether it is legal.
                              > > >
                              > > > And as a practical matter, you are right that prepaying for a couple
                              > > > of thousand copies doesn't make any sense. But most of the guys
                              > > charge
                              > > > over $100 for new recordings and nearly $100 for recordings they've
                              > > > already done. If they didn't want to prepay, they could register and
                              > > > pay fees again each time they sell -- they could just tack all fees
                              > > > onto the price (maybe with a little extra for their time and effort
                              > > in
                              > > > registering). So a quartet buying a new learning CD with the rights
                              > > to
                              > > > make 4 copies might pay $40 or $50 more than these guys currently
                              > > > charge for learning CDs. And a large chorus would pay maybe $100
                              > > > extra. As a chorus or quartet member, I'd much prefer to do that
                              > > > rather than be in legal limbo. It really isn't that hard (especially
                              > > > once you got used to doing it all the time), nor would it be
                              > > > cost-prohibitive.
                              > > >
                              > > > And if it turns out that it is okay for the learning CD makers to
                              > > > disclaim responsibility (which I doubt), then they could offer the
                              > > > service of paying the fees, and charge a premium. (For example, they
                              > > > could tell a quartet, "I'll charge you $50 extra and pay the fees.
                              > > If
                              > > > you don't want me to pay the fees, you are required by law to do it
                              > > > yourself, and it'll cost you about $20.")
                              > > >
                              > > > But if it is illegal to do otherwise, I wouldn't want to be the guy
                              > > > the industry decided to make an example of. That could cost many
                              > > tens
                              > > > of thousands of dollars, and I doubt any of these guys are making
                              > > > enough from learning CDs that they could just ignore bills and fines
                              > > > that size.
                              > > >
                              > > > Of course, this is all my own speculation. I don't know for sure,
                              > > > which is why I'm asking!
                              > > >
                              > > > Thanks for your input,
                              > > > Ben McDaniel
                              > > >
                              > >
                              > >
                              > >
                              >
                              > [Non-text portions of this message have been removed]
                              >
                              >
                            • Paul Girard
                              If the song is in the BHS library, you can pay them for as many tracks as you need and they have already paid the processing fee. Paul
                              Message 14 of 28 , Sep 26, 2008
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                                If the song is in the BHS library, you can pay them for as many tracks
                                as you need and they have already paid the processing fee.
                                Paul

                                On Sep 26, 2008, at 8:29 AM, bbshop@yahoogroups.com wrote:

                                > ________________________________________________________________________
                                > 13a. learning CD copyright question
                                > Posted by: "Ben McDaniel" benjaminmcdaniel@... ben_mcd
                                > Date: Fri Sep 26, 2008 7:44 am ((PDT))
                                >
                                > I've noticed that most of the young men who make a<snip>
                                >
                                > Whatever the legal ramifications are, there are practical problems
                                > with having individuals pay: the minimum number of copies you can pay
                                > for is 25, and there is a per-song processing fee in addition to the
                                > per-track fee.
                              • Kurt Boutin
                                I think the thing that everyone is missing here is that the Learning CD creator is PRODUCING a recording. It s no different than if you were to record
                                Message 15 of 28 , Sep 26, 2008
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                                  I think the thing that everyone is missing here is that the Learning CD
                                  "creator" is PRODUCING a recording. It's no different than if you were to
                                  record yourself on a CD or tape. The licensing costs come from REPRODUCING
                                  the tape or CD. The Learning CD "creator" is not responsible for the
                                  reproduction of these recordings. The person/group who is reproducing the
                                  CD/Tape is.
                                  Kurt

                                  On Fri, Sep 26, 2008 at 3:13 PM, Paul Girard <paul.e.girard@...> wrote:

                                  > If the song is in the BHS library, you can pay them for as many tracks
                                  > as you need and they have already paid the processing fee.
                                  > Paul
                                  >
                                  > On Sep 26, 2008, at 8:29 AM, bbshop@yahoogroups.com<bbshop%40yahoogroups.com>wrote:
                                  >
                                  > > __________________________________________________________
                                  > > 13a. learning CD copyright question
                                  > > Posted by: "Ben McDaniel" benjaminmcdaniel@...<benjaminmcdaniel%40gmail.com>ben_mcd
                                  > > Date: Fri Sep 26, 2008 7:44 am ((PDT))
                                  > >
                                  > > I've noticed that most of the young men who make a<snip>
                                  >
                                  > >
                                  > > Whatever the legal ramifications are, there are practical problems
                                  > > with having individuals pay: the minimum number of copies you can pay
                                  > > for is 25, and there is a per-song processing fee in addition to the
                                  > > per-track fee.
                                  >
                                  >
                                  >



                                  --
                                  http://my.bigfishgames.com/belchar


                                  [Non-text portions of this message have been removed]
                                • Jamie Bedford
                                  If the learning CD creator then sells that single recording to someone, though, what is his/her responsibility at that time? ... [Non-text portions of this
                                  Message 16 of 28 , Sep 26, 2008
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                                    If the learning CD creator then sells that single recording to someone,
                                    though, what is his/her responsibility at that time?

                                    On Fri, Sep 26, 2008 at 3:48 PM, Kurt Boutin <kboutin@...> wrote:

                                    > I think the thing that everyone is missing here is that the Learning CD
                                    > "creator" is PRODUCING a recording. It's no different than if you were to
                                    > record yourself on a CD or tape. The licensing costs come from REPRODUCING
                                    > the tape or CD. The Learning CD "creator" is not responsible for the
                                    > reproduction of these recordings. The person/group who is reproducing the
                                    > CD/Tape is.
                                    > Kurt
                                    >
                                    >
                                    > On Fri, Sep 26, 2008 at 3:13 PM, Paul Girard <paul.e.girard@...<paul.e.girard%40cox.net>>
                                    > wrote:
                                    >
                                    > > If the song is in the BHS library, you can pay them for as many tracks
                                    > > as you need and they have already paid the processing fee.
                                    > > Paul
                                    > >
                                    > > On Sep 26, 2008, at 8:29 AM, bbshop@yahoogroups.com<bbshop%40yahoogroups.com>
                                    > <bbshop%40yahoogroups.com>wrote:
                                    > >
                                    > > > __________________________________________________________
                                    > > > 13a. learning CD copyright question
                                    > > > Posted by: "Ben McDaniel" benjaminmcdaniel@...<benjaminmcdaniel%40gmail.com>
                                    > <benjaminmcdaniel%40gmail.com>ben_mcd
                                    > > > Date: Fri Sep 26, 2008 7:44 am ((PDT))
                                    > > >
                                    > > > I've noticed that most of the young men who make a<snip>
                                    > >
                                    > > >
                                    > > > Whatever the legal ramifications are, there are practical problems
                                    > > > with having individuals pay: the minimum number of copies you can pay
                                    > > > for is 25, and there is a per-song processing fee in addition to the
                                    > > > per-track fee.
                                    > >
                                    > >
                                    > >
                                    >
                                    > --
                                    > http://my.bigfishgames.com/belchar
                                    >
                                    > [Non-text portions of this message have been removed]
                                    >
                                    >
                                    >


                                    [Non-text portions of this message have been removed]
                                  • Kurt Boutin
                                    Someone needs to pay for permission to use that song/arrangement, but THAT S different than mechanical reproduction. ... -- http://my.bigfishgames.com/belchar
                                    Message 17 of 28 , Sep 26, 2008
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                                      Someone needs to pay for permission to use that song/arrangement, but THAT'S
                                      different than mechanical reproduction.

                                      On Fri, Sep 26, 2008 at 3:55 PM, Jamie Bedford <jrbedford@...> wrote:

                                      > If the learning CD creator then sells that single recording to someone,
                                      > though, what is his/her responsibility at that time?
                                      >
                                      >
                                      > On Fri, Sep 26, 2008 at 3:48 PM, Kurt Boutin <kboutin@...<kboutin%40gmail.com>>
                                      > wrote:
                                      >
                                      > > I think the thing that everyone is missing here is that the Learning CD
                                      > > "creator" is PRODUCING a recording. It's no different than if you were to
                                      > > record yourself on a CD or tape. The licensing costs come from
                                      > REPRODUCING
                                      > > the tape or CD. The Learning CD "creator" is not responsible for the
                                      > > reproduction of these recordings. The person/group who is reproducing the
                                      > > CD/Tape is.
                                      > > Kurt
                                      > >
                                      > >
                                      > > On Fri, Sep 26, 2008 at 3:13 PM, Paul Girard <paul.e.girard@...<paul.e.girard%40cox.net>
                                      > <paul.e.girard%40cox.net>>
                                      > > wrote:
                                      > >
                                      > > > If the song is in the BHS library, you can pay them for as many tracks
                                      > > > as you need and they have already paid the processing fee.
                                      > > > Paul
                                      > > >
                                      > > > On Sep 26, 2008, at 8:29 AM, bbshop@yahoogroups.com<bbshop%40yahoogroups.com>
                                      > <bbshop%40yahoogroups.com>
                                      > > <bbshop%40yahoogroups.com>wrote:
                                      > > >
                                      > > > > __________________________________________________________
                                      > > > > 13a. learning CD copyright question
                                      > > > > Posted by: "Ben McDaniel" benjaminmcdaniel@...<benjaminmcdaniel%40gmail.com>
                                      > <benjaminmcdaniel%40gmail.com>
                                      > > <benjaminmcdaniel%40gmail.com>ben_mcd
                                      > > > > Date: Fri Sep 26, 2008 7:44 am ((PDT))
                                      > > > >
                                      > > > > I've noticed that most of the young men who make a<snip>
                                      > > >
                                      > > > >
                                      > > > > Whatever the legal ramifications are, there are practical problems
                                      > > > > with having individuals pay: the minimum number of copies you can pay
                                      > > > > for is 25, and there is a per-song processing fee in addition to the
                                      > > > > per-track fee.
                                      > > >
                                      > > >
                                      > > >
                                      > >
                                      > > --
                                      > > http://my.bigfishgames.com/belchar
                                      > >
                                      > > [Non-text portions of this message have been removed]
                                      > >
                                      > >
                                      > >
                                      >
                                      > [Non-text portions of this message have been removed]
                                      >
                                      >
                                      >



                                      --
                                      http://my.bigfishgames.com/belchar


                                      [Non-text portions of this message have been removed]
                                    • Martin Grandahl
                                      ... Not really.....it s not about who does the actual duplication/replication....it s about who then owns those licensed copies. In the case of a quartet,
                                      Message 18 of 28 , Sep 26, 2008
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                                        > your example still sounds
                                        > backwards. You're saying that the fees are
                                        > due when the duplication is
                                        > made, not when the master is produced, and
                                        > in this case, the learning
                                        > CD singer makes the master but not the
                                        > duplications. That makes sense.
                                        > But then you say that artists (who make
                                        > masters) pay royalties, but
                                        > not replicators (who manufacture copies).
                                        > Isn't that precisely the opposite?

                                        Not really.....it's not about who does the actual
                                        duplication/replication....it's about who then 'owns' those licensed
                                        copies.

                                        In the case of a quartet, they are paying a service to create product
                                        for them to sell....the quartet will be reaping the benefit of the CD,
                                        not the replicator.

                                        In the case of the chorus and the learning track creator, it is the
                                        chorus that is reaping the benefit of the learning track, therefor
                                        they are the ones to pay the licensing fees.

                                        You're confusing the process (who physically creates copies) with who
                                        is actually doing the purchasing (the chorus who needs tracks, the
                                        quartet who needs CDs to sell).


                                        --
                                        Martin Grandahl
                                        afterglowlounge.net/forum
                                      • Ben McDaniel
                                        On Sat, Sep 27, 2008 at 12:18 AM, Martin Grandahl ... Once again, this is backwards. The monetary benefit is reaped by the quartet selling their CD in one case
                                        Message 19 of 28 , Sep 27, 2008
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                                          On Sat, Sep 27, 2008 at 12:18 AM, Martin Grandahl
                                          <martingrandahl@...> wrote:
                                          > Not really.....it's not about who does the actual
                                          > duplication/replication....it's about who then 'owns' those licensed
                                          > copies.
                                          >
                                          > In the case of a quartet, they are paying a service to create product
                                          > for them to sell....the quartet will be reaping the benefit of the CD,
                                          > not the replicator.
                                          >
                                          > In the case of the chorus and the learning track creator, it is the
                                          > chorus that is reaping the benefit of the learning track, therefor
                                          > they are the ones to pay the licensing fees.
                                          >
                                          > You're confusing the process (who physically creates copies) with who
                                          > is actually doing the purchasing (the chorus who needs tracks, the
                                          > quartet who needs CDs to sell).
                                          >
                                          > --
                                          > Martin Grandahl
                                          > afterglowlounge.net/forum


                                          Once again, this is backwards. The monetary benefit is reaped by the
                                          quartet selling their CD in one case and by the learning CD maker in
                                          the other case. The non-monetary benefits are being reaped by the
                                          purchaser of the quartet CD in the former case, and by the purchaser
                                          of the learning CD in the other case. You are correct in saying that
                                          the person who makes the copies is irrelevant to the issue of who owes
                                          the licensing fees -- the fees are owed by the person selling the
                                          content on the CDs -- the quartet in the former case, and the learning
                                          CD singer in the second case.

                                          And in the world of business and in the world of the law, it's easiest
                                          to analogize those making money with each other, those enjoying
                                          non-monetary advantages with each other, and those selling the same
                                          type of property with one another. Whenever a CD is sold, the content
                                          on it is much more important to the law than the physical CD itself,
                                          and it is the recording artist (in this case, the learning CD singer)
                                          who is selling his content, not the purchaser.

                                          Kenny Hatton made a very good point in an earlier e-mail that I think
                                          supports my position: "It doesn't matter who pays for the mechanical
                                          license fee as long as somebody does. Whether it's the guy whose voice
                                          you hear or the trombone player or the duplication house; the
                                          copyright owner doesn't care where the payment comes from. If it's not
                                          paid, everyone who touched the process is potentially liable for the
                                          damages, just like the manufacturer, distributor, owner and driver of
                                          a car would be possibly liable for damages resulting from an
                                          accident."

                                          In other words, the replicator, the learning CD maker, the chorus, the
                                          quartet, the Society, the Prime Minister -- anybody can pay the fee,
                                          and it will be legal. But if the fee is not paid, anyone involved can
                                          be sued. I think where Kenny Hatton and I differ in our opinion is
                                          whether the learning CD maker can disclaim the liability. But, even if
                                          the liability can be disclaimed, that's only valid between members of
                                          the contract. In other words, everyone can be sued, and anyone can be
                                          made to pay, but the learning CD singer may be able to get reimbursed
                                          for fines and fees and legal expenses by the purchasers of the CD,
                                          since those purchasers promised to pay the fees.

                                          I wouldn't want to be the one getting sued because someone failed to
                                          pay the fees, even if I could later recover from that other person.
                                          And, unless someone has some clear legal reason why that wouldn't
                                          happen, I think the only prudent thing for a learning CD singer to do
                                          is to pay the fees himself and charge the buyer for the fees. That's
                                          the only way to ensure never getting sued. And never getting sued is a
                                          good goal!

                                          I appreciate all the input, especially from people with a lot of
                                          experience in this area, like Kenny Hatton, but I'd also like to hear
                                          from anyone out there with legal experience in this area. Do we have
                                          any copyright lawyers on the forum? If not, could someone share this
                                          thread with a copyright lawyer they know, so we can settle this
                                          question with certainty?

                                          Ben McDaniel
                                        • Martin Grandahl
                                          ... Not really....you re looking at it in kind of a funny way. Let s take CD sales out of the question and just look at the learning CDs only.... Two
                                          Message 20 of 28 , Sep 29, 2008
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                                            > Once again, this is backwards. The monetary benefit is reaped by the
                                            > quartet selling their CD in one case and by the learning CD maker in
                                            > the other case.

                                            Not really....you're looking at it in kind of a funny way. Let's take
                                            CD sales out of the question and just look at the learning CDs only....

                                            Two situations:

                                            1 - Your chorus has the section leaders learn music in advance. You
                                            use a 4 track recorder to produce a master, then duplicate tapes or
                                            CDs for your members.

                                            2 - You decide to hire someone to record the learning tracks, because
                                            you are unable to do it, or simply want a more professional quality level.

                                            In either case, the chorus will be producing learning tracks....in
                                            either case, the chorus should be responsible for the price of
                                            duplicating the tracks for their chorus.

                                            The only difference in the situation is that you are paying someone a
                                            service fee for doing the recording. That doesn't make that person
                                            responsible for fees the chorus will incur using that recording.
                                            That's absurd....


                                            I do graphic design. If I am paid to create a logo for a company,
                                            should I be responsible for the fees the company must pay to register
                                            their trademark?

                                            Because money is changing hands, you are looking at the learning CD
                                            producer as being in the CD sales business - being paid for his
                                            recordings, whereas he is actually in the service industry, being paid
                                            for his time.


                                            --
                                            Martin Grandahl
                                            afterglowlounge.net/forum
                                          • Ben McDaniel
                                            The analogy with graphic design is fatally flawed. The owner of the trademark is analogous to the owner of the song copyright, which the recording is a
                                            Message 21 of 28 , Sep 30, 2008
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                                              The analogy with graphic design is fatally flawed. The owner of the
                                              trademark is analogous to the owner of the song copyright, which the
                                              recording is a derivative work of.

                                              Here's what happens if you apply the learning CD facts to graphic
                                              design: If you were to use an existing trademark (like an existing
                                              song) in a design that you sold for profit to someone other than the
                                              trademark holder (like the chorus or quartet purchasing the learning
                                              CDs), you would need to pay a fee to the trademark holder (like the
                                              copyright holder of the underlying song). For example, if you created
                                              and sold a design with a Jayhawk on it, you'd have to pay a fee to
                                              Kansas University.

                                              Here's what happens if you apply your graphic design facts to songs
                                              and sound recordings: If a recording artist (like a graphic designer)
                                              creates recordings of new, original compositions (like designs
                                              containing new, original trademarks) for a purchaser (like a record
                                              company or movie studio or corporation or ad agency), the parties
                                              contract for who will own the rights to the compositions and
                                              recordings. Any fees will probably be paid by the party who ends up
                                              with the rights, because they are the only ones who get any future
                                              benefit from the fees being paid (like the trademark owner) -- but
                                              they can contract it any way they want, because there is no party with
                                              rights who is not a party to the contract. That is completely unlike
                                              the learning CD situation, where someone has to pay fees to a third
                                              party who owns the underlying rights and can sue if those fees are not
                                              paid.

                                              Once again, I appreciate everyone trying to answer this question, but
                                              we really need to hear from a lawyer who is an expert in mechanical
                                              licensing. Since there are apparently none on this list, perhaps the
                                              Society should inquire of the music industry, since this is a case
                                              where several Society members are possibly in danger of being sued for
                                              their barbershop-related activities.

                                              Ben McDaniel
                                              Lawyer
                                            • Alan Gordon
                                              ... Ben, Thanks for pointing out that logic. I was scratching my head trying to compare trademark and derivative work, too. Here s one more thing to add to
                                              Message 22 of 28 , Sep 30, 2008
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                                                --- In bbshop@yahoogroups.com, "Ben McDaniel" <benjaminmcdaniel@...>
                                                wrote:
                                                > Any fees will probably be paid by the party who ends up
                                                > with the rights, because they are the only ones who get any future
                                                > benefit from the fees being paid (like the trademark owner) -- but
                                                > they can contract it any way they want, because there is no party with
                                                > rights who is not a party to the contract.
                                                >>>>>>>>>>>>>>>>>>>>>>>>>

                                                Ben,

                                                Thanks for pointing out that logic. I was scratching my head trying to
                                                compare trademark and derivative work, too.

                                                Here's one more thing to add to the confusion that I haven't seen,
                                                yet. Most (all?) learning track manufacturers/providers sell an
                                                already completed track off a list of previously-done works. That
                                                seems to eliminate the "chorus is the producer" element.

                                                I'm not a mechanical licensing lawyer, nor do I play one on TV. I
                                                would think a safe (and cheap) suggestion is for the recording artist
                                                to pay the fees on 4 copies per sale (the number of recordings that
                                                exchange hands in the monetary transaction), and the chorus to pay for
                                                further duplicates. Since songfile has a minimum of 25 songs plus a
                                                $13-$15 transaction fee, the recorder can invest $25 on the first
                                                recording and that would cover sales (4 each time) for about 25 resales.

                                                Alan
                                                gotchabari@...
                                              • Martin Grandahl
                                                ... Well....I didn t mean to go that deeply with it, but let s use your extended analogy. ... OK - this is a terrific example. But you ve twisted the situation
                                                Message 23 of 28 , Oct 1, 2008
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                                                  > The analogy with graphic design is fatally flawed.

                                                  Well....I didn't mean to go that deeply with it, but let's use your
                                                  extended analogy.


                                                  > Here's what happens if you apply the learning CD facts to graphic
                                                  > design: If you were to use an existing trademark (like an existing
                                                  > song) in a design that you sold for profit to someone other than the
                                                  > trademark holder (like the chorus or quartet purchasing the learning
                                                  > CDs), you would need to pay a fee to the trademark holder (like the
                                                  > copyright holder of the underlying song). For example, if you created
                                                  > and sold a design with a Jayhawk on it, you'd have to pay a fee to
                                                  > Kansas University.

                                                  OK - this is a terrific example. But you've twisted the situation -
                                                  again. To fix YOUR analogy, it would be that I am a graphic designer
                                                  _hired by a company that wants to use a sports logo_ (let's say utting
                                                  it in a unique design on a beer koozie).

                                                  I create the graphics for this company.....but I am not the one
                                                  required to acquire the rights from the sports team....it is the
                                                  company that hired me that is responsible.


                                                  > Once again, I appreciate everyone trying to answer this question, but
                                                  > we really need to hear from a lawyer who is an expert in mechanical
                                                  > licensing.

                                                  I believe Kenny's answer was correct - the owners of the copyright
                                                  simply need to be paid...it doesn't really matter to them from whom.
                                                  This kind of thing is generally not specified in law, is it? It is
                                                  tested in actual court cases - precedents - isn't it? (I am not a
                                                  lawyer.) Unless a copyright owner has sued in the case of a learning
                                                  track situation and determined who is responsible for the fees, isn't
                                                  this all academic?

                                                  I'm pretty sure that my graphic design analogy is correct.

                                                  You seem really determined to place the burden on the learning CD
                                                  creator....almost as if you had a personal stake in the outcome.
                                                  Well...that sounds accusatory, and I don't mean it in that way. But I
                                                  do wonder why you are trying so hard to push this burden in that
                                                  direction....


                                                  --
                                                  Martin Grandahl
                                                  afterglowlounge.net
                                                • Martin Grandahl
                                                  ... I think my extended graphic design analogy works here as well, actually. I create a design for a company using that team logo. The company pays the fee to
                                                  Message 24 of 28 , Oct 1, 2008
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                                                    > Here's one more thing to add to the confusion that I haven't seen,
                                                    > yet. Most (all?) learning track manufacturers/providers sell an
                                                    > already completed track off a list of previously-done works. That
                                                    > seems to eliminate the "chorus is the producer" element.

                                                    I think my extended graphic design analogy works here as well,
                                                    actually. I create a design for a company using that team logo. The
                                                    company pays the fee to the team for use of the logo and makes their
                                                    beer koozies.

                                                    However, the company does not require that I keep that design
                                                    exclusive. I find another company that wants to use it for
                                                    t-shirts....again, they are the ones required to pay the fee to the
                                                    copyright owner, not me.


                                                    I realize I'm looking at that design as if it were a derivative
                                                    work...which it would be. But I think that's a fair analogy, as the
                                                    group that creates a recording of a song has certain rights to that
                                                    particular recording - almost as if it were a derivative work. In
                                                    essence, that's what a learning track creator is doing.

                                                    But again...isn't this all academic unless and until this is tested in
                                                    court? Kind of like tags as being educational fair-use. :)


                                                    --
                                                    Martin Grandahl
                                                    afterglowlounge.net
                                                  • Ben McDaniel
                                                    Martin, et al., Your analogy still appears incongruous, but since I m not an expert in this specific area, I m just hypothesizing, and that s not going to
                                                    Message 25 of 28 , Oct 2, 2008
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                                                      Martin, et al.,

                                                      Your analogy still appears incongruous, but since I'm not an expert in
                                                      this specific area, I'm just hypothesizing, and that's not going to
                                                      convince you on the issue.

                                                      Kenny is right that it doesn't matter who pays if someone pays at the
                                                      proper time. But what about the situation where nobody pays? If you
                                                      are the chorus and the learning CD maker doesn't pay, you'd better
                                                      pay. And if you're the learning CD maker and the chorus doesn't pay,
                                                      you'd better pay. As I said before, if the copyright holder sues in a
                                                      case where nobody pays, it doesn't matter whether you'd win in the end
                                                      -- just having the fight makes you lose, due to the cost of litigation
                                                      or even mediation.

                                                      There are four reasons I seem to be determined to place the burden on
                                                      the learning CD creator:

                                                      First and foremost, that's what I think the law is. No one has yet
                                                      given me a sound legal argument for why I'm wrong, and it still looks
                                                      to me like I'm going along with what the law says.

                                                      Second, I've been looking at this from the perspective of the learning
                                                      CD maker. As I stated above, if I were the user of a learning CD and
                                                      the creator of the recording didn't pay, I would need to pay to avoid
                                                      any liability -- I don't think the user could be held liable, but he'd
                                                      probably be sued along with the creator.

                                                      Third, I don't want these guys to get in trouble. It would be a
                                                      tragedy if one of these guys, like Tim Waurick, got sued and lost all
                                                      the money he had made from his business (and perhaps even more).

                                                      Fourth, I'm preparing to launch my own learning CD business, and this
                                                      is one aspect that really concerns me. I'm trying to pattern myself
                                                      after other successful learning CD makers, and they don't pay these
                                                      fees. Also, I'm thinking of using this issue to set my business apart
                                                      -- no matter what the law says, I'm sure there are quartets and
                                                      choruses that would appreciate having the learning CD singer pay those
                                                      fees, so it is a service I could provide that the other guys aren't
                                                      providing.

                                                      One member of the list pointed me toward a copyright attorney who may
                                                      be able to give me a free bit of advice by e-mail. If he does give me
                                                      his opinion, I'll report back.

                                                      Thanks again to everyone for helping me to understand this. I may
                                                      disagree with a lot of what has been argued, but the discussion itself
                                                      has helped me to better understand the issues involved.

                                                      Ben McDaniel
                                                      Kansas Men in Harmony Director
                                                      Air Capital Chorus Lead
                                                      Wu Lead
                                                    • Martin Grandahl
                                                      ... It s an interesting idea, but it sounds kind of risky. It seems that by approaching it in this way, you would in essence be claiming responsibility for
                                                      Message 26 of 28 , Oct 8, 2008
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                                                        > There are four reasons I seem to be determined to
                                                        > place the burden on the learning CD creator:

                                                        > I'm preparing to launch my own learning CD business, and this
                                                        > is one aspect that really concerns me. I'm trying to pattern myself
                                                        > after other successful learning CD makers, and they don't pay these
                                                        > fees. Also, I'm thinking of using this issue to set my business
                                                        > apart -- no matter what the law says, I'm sure there are quartets
                                                        > and choruses that would appreciate having the learning CD singer
                                                        > pay those fees, so it is a service I could provide that the other
                                                        > guys aren't providing.

                                                        It's an interesting idea, but it sounds kind of risky. It seems that
                                                        by approaching it in this way, you would in essence be claiming
                                                        responsibility for legal issues in regards to the tracks in the
                                                        chorus's possession. Rather than leaving it open to speculation, you
                                                        would deliberately be saying that you are assuming that legal
                                                        responsibility.

                                                        Another thing....it kind of seems like a convenient fiction. You
                                                        might be taking care of the paperwork and paying the legal fees, but
                                                        you'll still be using your customer's money to do it - one way or the
                                                        other, the funds will be coming from them.

                                                        In that case, it seems like it might be less risky all around if you
                                                        do what you can to let the responsibility rest on your customers
                                                        rather than taking it upon yourself - they are the ones making and
                                                        using the copies after all, not you. You are simply producing a single
                                                        master....you could pay for fees on that if you feel that is your
                                                        responsibility.

                                                        And if you want to add a unique service, it seems like it might be
                                                        best to actually call it that....a service. You could take care of the
                                                        paperwork for your customers, billing them only for the number of
                                                        copies they require. By labeling what you do as a service, you are not
                                                        assuming additional responsibility. It just seems dangerous to
                                                        deliberately claim more legal responsibility when it's not necessary.

                                                        Anyway....as you said, this is all just opinion. I kind of sound like
                                                        I'm telling you what to do, but I don't mean it in that way. Just kind
                                                        of speculating. Doing what's right is important....but assuming
                                                        responsibility for the potential actions of others just seems like a
                                                        dangerous idea....




                                                        --
                                                        Martin Grandahl
                                                        theafterglowlounge.org/forum
                                                      • Alan Gordon
                                                        ... It may be a relevant parallel to look at what our arrangers do. With the exception of Public Domain songs, almost all arrangers will sell you 4 copies that
                                                        Message 27 of 28 , Oct 9, 2008
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                                                          --- In bbshop@yahoogroups.com, "Martin Grandahl" <martingrandahl@...>
                                                          wrote:
                                                          >> Another thing....it kind of seems like a convenient fiction. You
                                                          > might be taking care of the paperwork and paying the legal fees, but
                                                          > you'll still be using your customer's money to do it - one way or the
                                                          > other, the funds will be coming from them.
                                                          >>>>>>>>>>>>>>>>>>>>>>>>>>>>>

                                                          It may be a relevant parallel to look at what our arrangers do.

                                                          With the exception of Public Domain songs, almost all arrangers will
                                                          sell you 4 copies that include the per copy fee and then it is up to
                                                          the chorus to pay for the remaining copies. So they are still using
                                                          the group's money, but paying the per copy fee per the agreement
                                                          established in most permissions to arrange.

                                                          If nothing else, I would think that showing the good faith effort to
                                                          enforce the per copy fees as much as you reasonably can would alleviate
                                                          your liability rather than strengthen it. In one case, you can at
                                                          least claim "They wanted 4 and I made sure you were paid for the 4. I
                                                          can't control what they do beyond that." In a case where you did
                                                          nothing, it is less convincing to say, "Hey! I didn't know they were
                                                          using my copy or making any more!"

                                                          I would find the relationship between arranger/chorus and
                                                          arrager/publisher to be very similar to that of track-maker/chorus and
                                                          track-maker/publisher.

                                                          Alan
                                                          gotchabari@...
                                                        • Martin Grandahl
                                                          ... That sounded like a very good idea. Good parallel, and smart approach.
                                                          Message 28 of 28 , Oct 11, 2008
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                                                            > It may be a relevant parallel to look at what our arrangers do.

                                                            That sounded like a very good idea. Good parallel, and smart approach.
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