Copyright Law Update: Grand Performance Rights

Over the last week I have received several inquiries from performing ensembles and venue managers regarding a concept known as “Grand Rights”.  If you have received a notice from a rights holder referring to Grand Rights, this note will provide a short explanation of why this is an important issue that must be addressed proactively

For indoor performing ensembles, whether they belong to Winter Guard International (WGI) or another organization, this is an issue that should not be ignored and I encourage you to contact me immediately upon receipt of such a notice. 

**Because of the unusually large amount of traffic this update has received, I have set up a one hour live webinar on Thursday, March 23rd to discuss this in depth. Click on the picture for details.** 

Generally speaking, indoor guard ensembles and marching percussion units - if they are members in good standing of WGI - are covered under WGI’s copyright policy.  I have reviewed the language provided by WGI to ensemble directors and found it to be unworkably vague.  What I have inferred from the WGI policy is that WGI has negotiated a licensing agreement with various Performing Rights Organizations (“PROs”) such as American Society of Composers,  Authors and Publishers (“ASCAP”) and Broadcast Music, Inc. (“BMI”).

What does that mean? Professional Rights Organizations are organizations which represent large numbers of composers and creators.  One of the functions of the PROs is to collect licensing fees on the creators’ behalf and take steps to prevent unlicensed performance of content that is in their respective repertories.  

As to the scope of the WGI Master License however, this is an educated guess.  The licensing agreement is not available for inspection to my knowledge.  All I know - and from my conversations with multiple executive directors of the performing ensembles - is what WGI has articulated on its website. 

Under the WGI Policy, each ensemble is ostensibly covered for use of up to four (4) musical compositions in the construction of the ensembles’ show.  WGI - again this is my understanding - also encourages the ensembles to secure their own ASCAP and BMI licenses.  This is unsatisfactory on a number of levels.  

On one hand, it’s unnecessarily vague.  Either WGI members are licensed via WGI’s agreement or not.  This is a binary proposition.  Think of it like a light switch.  It’s on or it’s off.   You’re licensed or you are unlicensed.  

WGI’s policy indicates that it covers WGI member ensembles for up to four compositions, while simultaneously encouraging the member ensembles to obtain their own separate licenses for the use of the same compositions.  In other words, ensembles that are taking steps to essentially license a work twice - once under the WGI Policy - and then an independent license through the PROs. 

SO WHAT ABOUT GRAND RIGHTS?

Here is the crux of the matter.  The types of rights that the PROs license do not include Grand Rights. Neither WGI nor any individual performing ensemble can license grand rights through the PROs.  No one can. 

Grand Performing Rights are those attached to what are known in copyright law as “dramatico - musical” works.  Examples of dramtico-musical works are operas, musicals, ballets and other creative works that tell a story.  The copyright licensing you are most familiar with through ASCAP and BMI cover what is known in the legal world as “small rights”.

Grand Performing Rights must be obtained directly from the rights holders.  In other words, there is no master licensing regime for grand rights in the way that ASCAP and BMI handle small rights. This has to be done peer to peer, which is time consuming and more expensive.  This is the reality of the situation. 

Here is where things get murky for WGI ensembles.  Grand Performing Rights generally fall into two categories: 1) works originally conceived to tell a story (i.e. the Oscar & Hammerstein musicals, Stravinsky’s Firebird Suite, etc.) or 2) existing works that are used in extra musical contexts such as accompanying choreography, plays, or other staged presentations. 

At this point, you may be wondering: how do I know whether the song I have licensed through BMI has grand rights attached to it also?  Unfortunately, this is decided through the courts on a case by case basis.  Which works constitute dramatico-musical works for the purposes of the Copyright Act is extremely difficult to forecast. 

CALL TO ACTION

If you receive any communication from any third party asserting that you must contact them to obtain a grand rights license, contact me.