Fightin' words in support of Jewish musicians
Here's a letter to the editor published in the Friday, June 13, 2008 Jewish Press:
Angered By Simcha [Happy-Occasion Celebration] Guideline
The May 9 “Machberes” [notebook] feature caught my eye, and, quite frankly, made me quite angry. While the runaway costs of chasana [Jewish wedding] preparations are a major concern, one particular “guideline” struck me as particularly odious – the recommendation that there be a limit on the time “live” musicians are permitted to be paid for their work. What is galling about this recommendation is the concept that follows it, namely, that pre-recorded music should be substituted for live music.
Now, I ask you, why would our gedolim ["great ones," leading rabbinic authorities] consider such a suggestion to be even remotely kosher when it means that the musicians and performers whose recorded music would presumably be used to substitute for paid live musicians would not be paid for their services, that their work would be considered free and used without permission or compensation? Isn’t the use of instrumental and vocal music considered to be one of the key elements in the observance of a simcha? Don’t we ban instrumental music during Sefiras HaOmer and the Three Weeks [periods of semi-mourning] precisely because of that association?
I would suggest, given the importance of music-making in the context of simchas, as well as for the issue of parnossa [livelihood] for musicians in general, that the suggestion to limit live music (as a function of cost) so that unpaid canned music be used is the very essence of chillul Hashem [desecration of The Name (of G-d)] – we want the simcha, we want the music, but we don’t want to pay for it, and we will do it no matter what.
What chutzpah [nerve, gall]! If nothing else, it displays the kind of arrogance that is most certainly a contributing factor to the attitudes that for example, produced the recent scandal of the Lipa concert ban. [See this, one of many posts re this ban.] I don’t think the connection there is coincidental or casual.
Dr. Avrohom Leichtling
Monsey, NY
Labels: Music
posted by Shira Salamone at 11:46 AM
9 Comments:
He's confusing two issues. There's nothing wrong with playing recorded music, as long as the recordings have been properly paid for. The artists have thus been compensated. Does he think that when we play a tape we need to pay the musicians the same amount we would pay them if they showed up at our simcha?
The second issue, which he hints at, is that it's not laibadik enough to have recorded music at a simcha. I guess each family can be the judge of that.
MII - no, he's not confusing the two issues. When you muy a CD, you are buying it with the permission to use it for your own, personal use. You cannot charge money for someone to come hear it, and you cannot play it to a large audience.
It's the same issue that comes up when somebody buys personal use software and thinks they can install it on a public computer without the proper license, which we encounter all the time at our company. It's illegal and it's wrong.
Great letter.
This site has a good summary of US copyright law regarding music:
http://www.pdinfo.com/copyrt.htm
Authors own the exclusive rights to their compositions. This is called a copyright, and the composition is protected for many years--even if the copyright is never registered with the copyright office. A composition is considered to be "intellectual property" The copyright may be sold, transferred, or inherited--but the copyright still endures. If any music or lyrics are still under copyright protection
-you CANNOT reproduce the music or lyrics
-you CANNOT distribute the music or lyrics either for free, for no profit, or for profit
-you CANNOT perform the music or lyrics in public
-you CANNOT play a recording of the music or lyrics in public--even if you own the CD
-you CANNOT make a derivative work or arrangement for public use in any form
Legally a copyright means that a musician, author, or artist has a "limited duration monopoly" on anything he creates. The US Constitution grants the government power "to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries." (Article 1 Section 8, US Constitution). To legally enforce an author's claim to his copyright, his work must be registered with the copyright office. Registering a composition provides public notification of copyright, and you cannot use the composition publicly unless you pay royalties--which can be substantial. If you use a song under copyright without the owner's permission, you are subject to legal repercussions.
I wasn't aware of the law, then, prohibiting playing a CD in public. THank you for enlightening me. (Fortunately, I haven'tdon't think I've broken this one yet.) So what do DJs do then?
Ouch. Tzipporah, thanks for reminding me that I'm a hypocrite. :(
"-you CANNOT play a recording of the music or lyrics in public--even if you own the CD" Full disclosure: As a long-time Israeli and International folk dancer, I benefit from the violation of this law practically every week, since a folk dance session with live music is exceedingly rare. Many, probably most, folk dance session leaders can barely afford to pay for the room in which they run their session, much less for musicians. (Few folk dance session leaders run dance sessions for a living--When my husband ran Israeli folk dance sessions some 20 years ago, he *lost* money.) Consequently, probably 95% of Israeli and International folk dance sessions make use of recorded music. (Folk dance session leaders have followed the evolution of music-recording technology, moving from records and reel-to-reel tape recordings to 8-track and cassette tape recordings to CDs, and now, to music emanating from laptops wired into amplifiers/speakers.) We never even tried to hire a band for our wedding because we assumed that there was hardly a band in existence that could play such a wide range of music (Israeli, Armenian, Russian, Polish, Hungarian, Greek, [other] Balkan, German, French, Norwegian . . .), and that, even if such a band existed, we would certainly not be able to afford it. So we used my husband's extensive folk dance music record recollection for our wedding reception. Guilty as charged, to this day.
In our defense, we're talking about *folk dance* music, not necessarily the sort of music more typically played at a simcha. Certainly, if we were planning a simcha at which we wanted simcha-style music and/or Jewish rock, hiring a band would be ideal. Not for nothing I enjoy dancing at the back of the room at Jewish rock concerts--live music is fun!
Just to confuse it further... when I buy a CD, I buy a plastic disc encoded with audio in the Red Book Audio format. I'm not acquiring ANY permission, just the music, with the implied ability to use it in the normal manner. I can resell it (First Sale Doctrine), play it, or light it on fire, I can space-shift it (transfer to MP3, etc). I cannot do anything that is prohibited by copyright law.
Public performances require permission from a copyright holder, similar to duplication. Performing a public performance is no different than copying the CD for a friend, etc.
The costs are not prohibitive, generally in the pennies per performance. The problem is that for a small time operator, it's difficult to register. That said, a private folk dancing group is probably NOT a public performance, but if you are paying an instructor, then it IS there responsibility to pay for fees.
That said, a CD sold for folk dancing might be implied to be suitable for a small group. However, you can buy Royalty Free music (and images, etc) for these purposes... generally paying $30 - $50/CD, not the $15 for a regular CD.
http://www.premiumbeat.com/royalty_free_music/royalty_free_country_music.php
So it's not unavailable... the local country western bar here does folk dancing and line dancing, and I presume that they pay their ASCAP fees.
It is not illegal to engage in a public performance of copyrighted work, it is only illegal to do so without securing permission to do so. No different from a small business pirating software because it's cheaper than paying for it.
In defense of folk dance teachers, as opposed to "the local country western bar here [that] does folk dancing and line dancing," the local bar's main source of income is derived from the sale of alcoholic beverages--it sponsors dancing as a "loss leader," a service or product offered at little or no profit or at a loss in order to attract customers who will, one hopes, spend money on a more profitable service and/or product offered by a business. A folk dance teacher, by contrast, offers nothing but dance lessons and sessions--in many cases, the entire service is run at a loss. I would be surprised if there were half a dozen folk dance teachers in the entire New York City metropolitan area who are actually able to make a living from running folk dance sessions. When my husband was teaching Israeli folk dancing, he spent a fortune on records and equipment, not to mention room rental. If he'd had to pay copyright fees for every recording that he used, he wouldn't have been able to afford to run his dance sessions, on which he was already losing money anyway. I guess the best that can be said is that folk dance sessions (which usually include at least some dance teaching) are not public performances, and are rarely run as for-profit businesses.
If he'd had to pay copyright fees for every recording that he used, he wouldn't have been able to afford to run his dance sessions, on which he was already losing money anyway.
As the wife of a composer, I have to ask - how do you think the musicians who wrote and performed that music are able to eat and put a roof over their (and their children's) heads, if everyone decides that following the law is just too expensive?
Ouch again. Good question.
It being a tad after hours, and since my husband and I are meeting in Manhattan this evening, I just spoke to him, and mentioned this discussion. He's of the opinion that folk dance music is recorded and sold with the understanding that it will be purchased and used for folk dance sessions, and that no further payments are expected. I'm not sure you'll be particularly happy with that explanation, Tzipporah, but, on the other hand, I think it's reasonable to assume that not too many people are likely to be downloading Hora Mamtera or Adama v'Shamayim into their iPods. Folk dance music is "niche" music created for this specific use.
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