Hi -

Thank you…
Roy

My reply:
————–

OK, I understand that this process can get very complicated and frustrating at times especially if you won’t be receiving replies from those two big companies. To move forward, let me help you illustrate how to find the rightful owners of this song. But first, the rightful owners of the song are either the music publisher or the songwriter of the song. It’s not the artist. If you find the music publisher, you find the songwriters and vice versa. Below are the steps I would make:

Step1.) Use Google first. Search the key phrase “Brown Mountain Lights” “Song”, see screenshot below:

It appears to me that there are two most relevant results to provide meaningful information relating to your query (inside the red box). These are from Wikipedia and one from the other site. According to the Wikipedia entry:

The lights are the inspiration for the bluegrass song, Scotty Wiseman’s “Brown Mountain Lights”

Who is Scotty Wiseman? Clicking on the Wikipedia link for the songwriter name reveals that Scotty Wiseman is an American songwriter. Actually his real name is “Scott Greene Wiseman”. Now you have the songwriter name, this is already a big progress in your search but this is not yet conclusive and you need to re-confirm.

Step2.) Most songwriters are affiliated with performing right societies. These are the BMI, ASCAP and SESAC. These are the biggest performing right societies with majority of its members coming from the US (American songwriters). Most commercially released songs have their writers affiliated in any of these societies. Actually you not need to contact any the BMI, ASCAP or SESAC representatives just to make an inquiry pertaining to the ownership of the song. The proper way is to use their search function first before contacting them. Let’s search this songwriter name in ASCAP first. Go to this URL: http://www.ascap.com/ and then click “Go” besides “Find titles, writers, publishers and more”. This is how it looks like:

You are required to agree to the disclaimer so check it. In the search function, select writers and type any of these possible combinations of the writer name:

Scott Greene Wiseman
Wiseman Scott
Scott Wiseman

And then check if you see a result. There is one result but it belongs to WISEMAN ROBERT SCOTT, which is not actually the songwriter because the actual songwriter name is Scott Greene Wiseman. If you click this name, you won’t find any catalog or list of songs. So this is not the correct result. You can then conclude that this writer is not affiliated with ASCAP. Let’s try with BMI.

Step3.) Go to this URL: http://www.bmi.com/ and then click “Search”, under “Search Repertoire”, change it to songwriter/composer and re-type the following songwriter name combinations to see if you get a result:

Scott Greene Wiseman
Wiseman Scott
Scott Wiseman

You are required to accept the terms, so go ahead and agree with it. If you do not get a result, press back button and enter another name combination as shown above. Finally there are two results for “Wiseman Scott”, see below:

Step4.) Click the name hyperlink to see the list of songs written by this songwriter. This is the result:

It’s now been officially confirmed that Scott Wiseman wrote the bluegrass song “Brown Mountain Light”. Now the question is “who own the rights of the song”? The answer is the music publisher of the song because the songwriter assigns his publishing rights to that music publisher.

Step5.) Click the song name link to read the details of that song. It’s been provided that the music publisher of this song is UNICHAPPELL MUSIC INC.

Step6.) Clicking further the link of the music publisher name now reveals how you can contact them so that you can ask for permission and licensing related issues. Here it is:

This has grown so much in popularity over the years and is actually a $6.8 billion business last year in 2010. The one that will surely benefit from this is the owner of the master recording. In majority of cases , this is the major label or an independent recording label. Or if you are independent artist that creates your own recording, you can as well take this opportunity.

So how this licensing works?

First, telecommunication carriers are very selective with the music that they choose to sell as tones to their customers. And you need a contact with these companies to help you land a successful deal. This is where establishing connections can be important. And once someone is interested in licensing your music for ring tones or ringback tones. Its time they will look seriously in your catalog. Common questions will be asked are as follows. Make sure you are prepared on how to answer the following questions as accurately as possible:

1.)How many songs in your master recording catalog? – These are the number of music that have commercially released master recording and that you also own the master recording copyrights.

The bigger the number of songs in your catalog, the better since it will translate to bigger royalties, better advance payment and lots of choices for your client.

2.) What are the best songs in your catalog? - Your client is primarily interested for “potential hits”. Make sure you provide a list of great songs by order of importance so that they will prioritize these songs during the song audition process.

3.) Do you allow your catalog to be licensed exclusively? – Some clients may want to license your catalog exclusively. But of the time the deal will be non-exclusive.

The purpose of #1, #2 and #3 is for your client to get to know your catalog, genre, style, etc whether it will fit their business model and other potential clients. Finally if the negotiation of #1 to #3 goes very well, your client will tell you that they will be interested in continuing with the licensing application and will provide what songs they would like to license. In some cases, these might be subsets of your catalog (e.g. only those hits) or they might be interested in licensing your entire catalog.

This is the time when both of you will be negotiating for the licensing fee. This is critical because the fee must sound reasonable in both parties. There will be two royalty payments that will be provided to you as the sound recording copyright owner.

a.) Advance payment – your client will pay an advance sum of royalties to you. This payment will be recoup from your monthly royalty statement. Both of you should agree to a specific advance payment. This will provided to after the agreement becomes effective and signed. There is no specific guidelines as to how much advance payment that you should be receiving. It should be agreed for both parties.

b.) Monthly royalty statement – again you and your client should agree to a percent share of royalties that should given to you for each sale of ring tone or ringback tone downloads. There is no rule as to what percent as long as it sounds reasonable to both parties.

Note: Exclusive agreements command a higher advance payment as well as higher percentage of monthly royalty statement as compared to non-exclusive deal.

Now that the royalty payments have been agreed. Its time that both you should talk and agree with the rest of the terms that should be included in the music licensing agreement.

So what happens if all have been agreed? It’s time to put everything in writing. You or your client may contact an entertainment attorney to write everything that has been agreed. Finally once this agreement has been put into writing, both of you will happily sign the agreement.

1.) Perpetuity use of the licensed music (entire life of the music copyright).
2.) One time licensing fee.
3.) License applied only to television and film projects.
4.) Worldwide territory
5.) The license covers both the master recording and the song.
6.) The license assumes that the music publisher is independent and not affiliated with a major label or major music publishing companies.

The following are the results:

Its surprising though that 40% of the customers are expecting around $500 to $1000 licensing fee for an indie music in film and television projects. This figure is still relatively small compared when licensing major label material which can run up to thousands of dollars. There are 20% who says that the reasonable licensing fee should fall between $50 to $100, $10 to $50 range and below $10. Supposing you are an indie music publisher and someone asked you about your music licensing fee, what would you say? Of course, its not as simple as saying $500 to $1000 licensing fee to all of your clients. You need to examine a lot of factors. You still need to know if the music will be used as the theme of the movie or just a 15 second use of the music. There are big difference between these two. You cannot charge $500 to $1000 if your music will be used just 15 seconds in the film project. Although “again” this will depend on the popularity of your music. If your music is already very popular among the masses; then its value will be very high; thus you can charge higher. But some movie producers are also “cost” conscious and would mostly stay away from high licensing fees.

Its why licensing major label material is so damn expensive for an ordinary/independent movie/TV producer. Major label spend tons of money in promoting their artist music everywhere, so they expect that the value of their music to be very high. As you have noticed, its only the major label songs that gets massive commercial airplay and is featured in lots of shows. But for a mere mortal/ordinary independent music publisher who does not have gigantic marketing machinery, the music is not that popular or known. So its why music consumers are expecting that the licensing cost for independent music is not very high.

For a more realistic/consumer friendly licensing fees; you can average the results. The following is the calculation:

Average = ($750x 40% + $75×20% + $30×20% + $5×20%)/4
(300+15+6+1)

$750 is the average of $500 and $1000, so on.

The resulting average is: $81; This looks realistic and assumes that your customer will be licensing the song either as theme, sub-theme, etc for their movie or TV project. It’s like a package deal licensing.

a.) Use the master recording of the music – you need to obtain “master sound recording rights”, ask permission from the sound recording copyright owner. If you are licensing independent music sometimes the music publisher or even the artist itself holds both rights to the music/lyrics and the sound recording. So better contact the publisher first. For major label release, you need to directly contact the major recording label.

b.) Use music to publicly perform it in public such as in radio, TV station etc – you need to get a “public performance rights” – ask permission from public performance societies like ASCAP, BMI or SESAC if the music publisher is affiliated with any of these societies. This is the exact page in ASCAP that where you will get the license: http://www.ascap.com/licensing/ .Otherwise if not affiliated; just ask permission directly to the music publisher. This is the public performance of “music and lyrics” only. Of course, since you are also exploiting the sound recording during the public performance, you need to obtain permission from Sound Exchange (http://soundexchange.com/service-provider/service-home/ ) so that you can obtain public performance rights in the use of “sound recording”.

c.) Use music to synchronize it along with pictures, images such as in movies, film and slideshows – you need to obtain synchronization rights from the music publisher. To find out who is the music publisher of the music, you can read this guide on how to get permission to use copyrighted music.

d.) Reproduce copies of music in CDs, DVD and other physical recording media – you need to obtain “mechanical rights” from the music publisher. Sometimes if the music publisher is affiliated with Harry Fox agency (http://www.harryfox.com/public/Licensee.jsp), then you need to go this agency to obtain permission.

e.) Print the melodies and lyrics in music sheets or in your magazine, journals – you need to obtain “print rights” from the music publisher.

The next big question will be: What music rights are needed for my project? What music rights do I need to obtain permission? The music publisher will simply issue license and it’s your responsibility to properly define the scope of your project and ensure that all music rights are covered in the license issued. Failure to do so and your project will be at risk of copyright infringement issues. If you find the agreement difficult to understanding, you can always communicate with the music publisher to double check that the music licensing agreement grants all the necessary rights needed. You can confirm this with your entertainment lawyer if you have. Every project that uses music are unique and they need to obtain some specific rights (not all music rights) to make the project as complete and legal as possible, see the screenshot below:

If you use music for personal listening, you really do not need permission from the music publisher or any of the societies mentioned above. Examples of these are the music you purchased in iTunes and other music downloading websites. For school or non-profit use, it is “possible” that you will publicly perform the music, reproduce it in copies or even synch it with your non-profit documentary film. So make sure you know the scope of your project very well.

However you are required to obtain master recording rights all the time except in magazines since you will be using these recording in your projects. The legend of the summary screenshot:

NOT APPLICABLE – not needed, for example if you are a TV producer or a member of the production team, there is no way you will be exploiting the public performance rights since your job is just to produce the TV programs.

POSSIBLE – it depends on your project scope. For example if you are licensing music for your website. Some websites will put the lyrics and music sheets on their page (like those lyrics or mp3 streaming websites), so you need to obtain print rights. But these are not compulsory since some websites will just use the master recording anyway and do not need print rights.

REQUIRED- these rights are always exploited in your project. For example, if you use music for radio. It will always be publicly performed on air. Or if you are film producer/director or a member of a production team, you will always end up synchronizing the images/pictures of your film with the music so synchronization rights are required for your project.

I received another reaction from a reader, see below:

From your reply I see that a public performance must take place in a public place. This would be in a location open to or accessible to the general public. If I understand this correctly an individual or a group of people singing a copyrighted song in a private location, not accessible to the general public, would be acceptable.

Thanks for your help.

These are your questions and my answers:

1.) One more Question about #2 the one about the youth group at a state park. I see now that it is not a private camp site and the general public would have access to the performance. The kids singing would become a public performance.

Answer:

Yes, you are right that they are performing in a public place but the fact that the kids are singing for their own pleasure does fall into the category that they should pay public performance fee for the authors creating the music.

Unless, of course those kids are starting a band, selling tickets and then performing in a state park for a concert event. Then the concert organizers should pay the authors of the music for a performance fee. The primary reason is that they are exploiting the music commercially in terms of public performance.

2.) What if the campsite was at a private campground, like lets say a Girl Scout Camp. Can the campers then sing copyright songs? I think that would be okay because it is a private location. But then I wonder if they put on a program for their parents and other non-campers, that then would be a public performance, is that right?

Answer:

It has been clearly defined by US legal: that public place is: generally an indoor or outdoor area, whether privately or publicly owned, to which the public have access by right or by invitation, expressed or implied, whether by payment of money or not, but not a place when used exclusively by one or more individuals for a private gathering or other personal purpose.

If what you mean by a private camp ground is privately owned then it can still be classified as a public place. Yes the campers can sing copyrighted songs, only for their own pleasure and personal intentions. But if the organization itself organizes an event and starts collecting donations or fees to support those girls and their event overall; as well as letting those girls sing copyrighted songs in front of the public , parents, non-campers or their fellow scouts as part of their program. The organization is making some money isn’t it? So some share should also go to the songwriters/publishers creating the music they performed. Unless those girl scouts are amazing songwriters and start singing their own songs and its no issue at all.

3.) How about a educational music camp? As I understand it, a face-to-face instruction is okay, but at the end of the week the students put on a show to the public, that would not be okay, is that right?

Answer:
It boils down if the music camp organizers are making money out of that event. If at the end of the week, those students put a show to the public and then the organizers are not making anything, then the organizers will not need to pay performance fee. This also means that:

a.) The educational music camp is entirely free. The music camp coaches or instructors voluntarily handle the camp without any financial aid.
b.) The music camp organizers are not paying anything to the event venue.
c.) There is no entrance fee.
d.) The participants are not paying anything to the organizers or to anyone relating to that event.
e.) No money is involved at all.

I support the license for public performance of music. Any establishment that has live music performed for the enjoyment of their guests should pay for a license. The question is, what is considered a public performance?

Thanks for your help and providing a web site with great information.

I will attempt to answer each of the above questions as simple as possible. First, you really need to know what is the official definition of “public performance”? ASCAP defines it this way:

“A public performance is one that occurs either in a public place or any place where people gather (other than a small circle of a family or its social acquaintances.) A public performance is also one that is transmitted to the public; for example, radio or television broadcasts, music-on-hold, cable television, and by the internet.”

Another that needs to be defined is that what constitutes to be a “public place”? USlegal.com defines public place “generally an indoor or outdoor area, whether privately or publicly owned, to which the public have access by right or by invitation, expressed or implied, whether by payment of money or not, but not a place when used exclusively by one or more individuals for a private gathering or other personal purpose. ”

1.) A family or soccer team rents the party room in a pizza place and they start to sing copyrighted songs, is that a violation?

The gathering seems not to fall to public place definition because the place is used exclusively by family or soccer team members only. There is no public performance violation.

2.) A youth group goes camping to a state park that is open to the public and begin to sing around the campfire copyrighted songs. Is that a violation? It is in the public and they are singing, is that considered a public performance?

Every one can can roam around the state park and witness the event. Since it is in the public place and the youth group is not a private gathering, public performance rules of music will be applicable. The youth group organization can be profiting from this event because of the use of music. Of course these organization collects some money from its members right? A portion of income collected should also go to the composers of the music; if they will sing copyrighted songs during a campfire gathering in public.

3.) Is the intent of the law to prevent anyone from singing copyrighted songs? Does a mother singing to her child a copyrighted song while shopping in violation.

Not at all, mother is singing to her child only, it is not considered a public performance of the song. The mother is not profiting by singing to her child and the use of music is of personal use only.

4.) A Senior Center host a group meeting for their members to come and sing songs together. If they sing copyrighted songs are they in violation? There is not an audience here to perform to just a group of friends gathered together to sing an enjoy each others company.

It is an exclusive/private gathering so public performance rules will not apply. I hope I clarify everything about what is “public performance”. So if you understood it correctly, it is why:
a.) Commercial radio stations should pay performance royalties to authors of the music because they are profiting from the use of music in their radio stations.
b.) Same thing with TV stations, cable TV, websites, malls, restaurants and any other public place like concert venues.

1.) Reproducing music in CD/DVD/Blue ray/Cassette tape, etc for sale.
2.) Reproducing music in CD/DVD/Blue ray/Cassette tape for personal use.
3.) Replicating music in Karaoke or videoke machines.
4.) Replicating music in other physical forms such as in video cassette/video tape.
5.) Reproduction of music in film strips for sale.
6.) Duplicating music for the use of toys, gadgets, cell phone ringing tone , etc.

When do you apply for a music reproduction license?

1.) You need to apply if you are using copyrighted music in your projects whether it is a commercial or non-commercial application.

2.) You need to get a license from the music publisher if your music projects falls in either of the 6 categorical applications for the license (see list above)

What is not included in the music reproduction license?

Another name of music reproduction license is called “mechanical” license (Read: “What is a mechanical license agreement” ). This right only allows you to “reproduce” copyrighted music in different forms (see the 6 application list above) but NOT including:

a.) The right to publicly perform or broadcast the music. If you are planning to reproduce music in videos and you showcase them like in a public shopping mall; then you need to get a separate “public performance” license for that.

b.) The right to synchorize the music with the video. Since this right only allows you to reproduce copies of music in physical forms, if you are synchronizing the music with a film (like in a movie sound track). You need to get a separate synchronization license from the music publisher.

c.) The right to exploit the musical lyrics and notes in a commercial material (like in a magazine). You need to get a separate permission from the music publisher granting you to re-publish the lyrics and musical notes in your magazine.

What is included in the license?

Depending on the licensing requirements, most music reproduction license should have the following elements:

a.)The number of copies allowed. It needs a fixed figure like allowing you to replicate 1,000,000 copies of that music in CD.

b.) The payment procedure of mechanical licensing fee. If the music publisher asked you for a licensing fee. The payment procedure should be stated in the license, like you need to pay the amount to the Harry Fox agency or let other third party agencies to collect it. Depending on the application, the music publisher may not be asking for a licensing fee (such as for personal and educational use).

c.) The music title included in the license. What songs are included in the license? Is it limited only to the 12 selected songs or to the entire catalog.

d.) Scope and territory – Does it allow you to sale the reproduced copies in a world wide scale or just limited to a certain geographical location?

e.) Duration of the license – is it limited to the life of the copyright? Or just the first 20 years?

How to get this license?

The following are the procedure of getting this license:

This short guide will elaborate the different types of music licenses that every music users should know in order to minimize the confusion associated with music licensing. As a rule of thumb, every music rights have a specific license associated to it.

So to better illustrate the types of music licenses, lets illustrate the rights that are possibly to be exploited as well as its associated licenses:

1.) Right to use music in public performance – this right grants music users to play copyrighted music in public. Example is playing songs in radio stations, theaters, malls, private offices and even in the restaurants and bars. To exploit this right, is that the user needs to acquire public performance music license.

You can get this license from the public performance right societies. Read this post regarding “License to Play Music in Public- Simple Advices to get started”:

2.) Right to use music in film, movies and TV – this right grants music users to play music in synchronization with film, movies and TV scene. This is also known as “sync” or “synchronization” rights and this needs a synchronization license.

Take note that synchronization license only covers the use of “lyrics and melody” with respect to a film, movie or TV program, and does not include the master recording or the recording itself.

3.) Right to use the music recording – this right grants music users to exploit the underlying music recording of a certain song in a specific music application. In order to use this right, the user needs a “master recording license”. So for example, if the application is in film, the producer of the movie needs to acquire synchronization license and master recording license.

4.) Right to reproduce music in copies – this right grants users to reproduce the music in any form except the reproduction of lyrics in sheets. A good example is reproduction of song in CD, DVD, and cassette tape or in any mechanical form. To exploit this right, a user needs to have a “mechanical license”.

So if a recording producer who owns both music copyright and the sound recording needs to sell his product to a recording label, the label needs to obtain mechanical and master recording license from the recording producer.

5.) Right to reproduce music in printed sheets – a good example is that a magazine needs to publish your lyrics including chords of your songs. In this case, the magazine owners need to obtain printed music sheet license from the copyright owner.

First important item: The name of the music publisher
Rule: It is important that before you signed the agreement; you are entering an agreement with a music publisher. Music publisher is mandated by law to issue music licenses in behalf of the songwriters involved. You need to ensure that the company is a registered music publishing company if you need to conduct business with a legally accepted entity.Other things to check are the catalog of the music publisher. If the music publisher is ASCAP affiliated, you can checked the registered songs in ASCAP and make sure that the songs you are licensing has been registered by them.You can even checked with the US Copyright records to make sure that what the music publisher is claiming ownership has been registered in copyright office. If there are no other issues above, it can be said that the music publisher is in good standing.

Second important item: Scope of Music Compositions and Recordings
Rule: This can be optional for auto-generated licenses. However if you are asking the music publisher to manually issue licenses for you; you need to ensure that licenses include what songs you are licensing with them. Is it the entire catalog? Or a list of specific songs?

Third important item: The name of the licensee
Rule: This is again optional for auto-generated licenses. The important is that; again if you are asking for manually issued licenses; you need to ensure that the music publisher has listed your correct company name in the contracts.

Fourth important item: Detailed intended song application
Rule: The license must include details how the song will be used. A complete statement is a requirement to avoid confusions on the exact song usage/application. It should answer clearly all possible questions raised. For example, if you are given with a license agreement for the use of music in film production. It should be complete in such a way, it answers the following questions very clearly:
a. Does it mention there that you can use the music in “sync” with the film?
b. Is it mentioned that aside from using the composition in sync, you are also allowed to use the master sound recording?
c. It is mentioned there that if there is a specific movie scene for which you are going to show the complete lyrics on the film screen,; does the license agreement allows it?
d. Are you allowed to make several copies of the videos with the music and film in it?
e. Are you allowed to use the music in porn, racism, hate and terrorism promotion movies?
In relation to this, you need to mention to the music publisher in details about how you are going to use the music.

Fifth important item: Rights granted
Rule: These terms in the agreement should list down all the rights granted by the music publisher to the licensee. This should be based on the fourth important item (Detailed intended song application). For example, if the music publisher is granting you to use music in “sync” with the film. This means that they are granting you “synchronization” rights.

Sixth important item: Limitation of use
Rule: If the music publisher states that “any particular song usage not mentioned in the rights granted, the licensee is not allowed to use the music in those applications”.

Seventh important item: Indemnification and Other terms
Rule: Other than what mentioned, the music publisher will include indemnification clauses in music licensing agreement as well as other terms to be included in the music licensing agreement.

Let’s have an example. Supposing you are assigned to research songs for a radio airplay/programming; you surf the internet and shop for possible good songs that fits your station audience.

Your boss or your guidebook “so you want to start a career in commercial FM station?” always gives strong advice not to download songs from the internet and use it for your radio station (because the owner of the website may not have the “publishing” rights to license the songs to you).

However, you might notice things have started to change and almost everything has been conducting business online including commercial banks, so why would you not try surfing for good songs in the internet?

Then you stumble into a site which has songs in it that you really like, you then start downloading each of those, and read their terms of agreement. In their terms of agreement, you might read this “indemnification clauses”:

“Licensor shall indemnify and hold the licensee harmless from any and all claims, liabilities and costs, losses, damages or expenses (including attorney’s fees) arising from any third party claim directly relating to the music composition and the underlying master recordings.”

Now the question, is it fair? The answer is yes. The licensee (owner of the website which might be the publisher but you still need to double check they are), assures that if ever you are brought into a lawsuit because of copyright infringement; the licensee will answer for it in behalf of you.

As stated in the above indemnification clauses, you are harmless from any claims. In short, when that contract is secured, you will be protected by any lawsuit arising from the use of those songs. You just have to make sure the licensing agreement contains that indemnification clause.

Feeling still confused? The best way is to consult an entertainment lawyer. The lawyers will double check whether the indemnification clause suits your need, unfair or irrelevant.

Some indemnification clause I have noticed is unfair, beware if you see these lines in the employee-employer agreement. This indemnification clause for me is what classifies a “shark” employer:

“The employee shall indemnify and hold the employer harmless from any and all claims, liabilities and costs, losses, damages or expenses (including attorney’s fees) arising from the normal conduct of work.”