Legal Question in Intellectual Property in New York

Re: Using music in an art piece for exhibition

Your proposed use of songs may require up to three different licenses, one for public performance of the songs in your art piece, one for reproduction of the audio recordings in your video film (if you create a video recording of your performance) and one for re-recording the compositions with your own musicians/singers (if you cannot obtain the license from the record company controlling the master recordings).

The performing rights license is for the gallery to worry about (typically it is not a one-time fee but an annual fee) but the sync rights license/ mechanical rights license are to be obtained by you or the producer of your video.

Sync licenses use a wide range of royalty formulas because they are privately negotiated but the following factors are usually considered:

1. length of use;

2. type of use (recurring theme, instrumental, visual performance or background usage);

3. nature of the film, its budget, its director, and actors; and

4. scope of the license (theatrical film, video cassette rights, television, cable, pay-per-view, etc.).

License fees vary from a few hundred dollars to hundreds of thousands or more. Low budget/art video productions can sometimes get inexpensive sync licenses but it is entirely up to the rights owner who can refuse altogether, in which case, your next option would be to obtain compulsory mechanical rights from the Harry Fox Agency and produce your own recordings of the songs, if they are so important to your art piece, for use in your video.

If you need assistance clearing the rights and obtaining appropriate licenses, contact my office or any other entertainment/ copyright attorney. Copyright holders can and do go after even small, non-commercial or limited distribution productions that use their songs, and copyright infringement damages can be devastating.

The above response is in the nature of general information, is not legal advice and should not be relied on as such.

Re: Using music in an art piece for exhibition

Just noticed that I misspoke in the middle of my message about the option of obtaining mechanical rights for recording your own versions of the songs you want to use in your film. Failure to obtain a master rights license from the record label (and not the sync license from the publisher) can be remedied this way. The sync license from the music publisher of the songs must still be obtained.