December/January
2004
Are
You Breaking the Law?
Music
Legalities 101
By
Blanche Hold
For
an industry that thrives on music, most people actually
know very little about the legalities of using their favourite
tunes in a fitness class setting. Most of us pop in the
CD, pump up the volume, adjust the pitch, and teach to the
beat. This article covers some important information on
the legalities of music and the answer to the question most
commonly asked of music providers: “Why do professionally
mixed fitness CDs cost so much?” With the average 90 minute
fitness CD ranging from $35 - $40, it can seem like a small
fortune, especially when you consider that a store-bought
CD by your favourite artist can be an inexpensive as $16!
What really goes into the making of a CD purchased from
a legal music provider, what are some of the legalities
involved, and are professional fitness CDs as expensive
as they seem?
Let’s
start at the beginning. Firstly, you cannot legally just
take a piece of music, record it, and then use it to perform
to (unless of course, you composed the music yourself and
therefore, own the composition).
When
you look at what goes into the making of a CD, there are
4 main parties involved:
-
the
composer who writes a piece of music
- the artists who perform the music
- the producers who produce it
- the people who perform to the music
In
each of these 4 areas, there are licenses and fees associated,
all of which have legal consequences if not adhered to.
According
to SOCAN (the Society of Composers, Authors and Music Publishers
of Canada), when a composer writes a compilation, he/she
obtains exclusive rights under the Canadian Copyright Act.
This act recognizes three main rights granted to the creator
of any original work (in this case musical):
-
The
right to produce or copy the musical work (such as sheet
music)
-
The
right to reproduce the musical work, including “ mechanical
” rights (such as cassette and digital audio reproductions)
and “ synchronization ” rights (such as music
in films, videos and multimedia productions); and
-
“
Performing ” rights, which are the rights to
perform a work in public (such as live concerts and
more specifically – fitness classes) and the right to
communicate to the public by telecommunication (such
as a broadcast)
A
composer will work with a Publisher who protects the work
and collects the fees from various agencies on behalf of
the composer
When
a music service provider (such as Dynamix, Burntrax, Muscle
or Power Music) goes to produce a CD, they must first choose
the songs they want and the tempo then obtain permission
from both the owners of the composition and the owners of
the recording. These licenses are obtained from the Publisher
representing the composer and the Record Company representing
the performing artist. These licenses are required to
enjoy music in a non-commercial environment for “personal”
use.
Once
the appropriate licenses are obtained, there is the actual
production. Most music service providers will obtain the
rights to the song and will re-record the song using their
own artists. As some record companies will not allow the
right to edit the original recordings, it is easier to re-record
and then “fix” the songs for use in a fitness class setting.
So
that you can better understand the intricacies that this
“fixing” entails, try this simple exercise: Play a popular
song from a commercial recording and then compare it with
the same song in the “aerobicised” version. You’ll probably
notice some obvious differences such as tempo, vocal sound,
instrumentation and musical arrangements. More subtle
differences could be consistency of phrase length and downbeat
location.
When
popular artists create their music, they don’t worry about
square 4’s and 8’s and they certainly don’t have your step
classes in mind when they are composing. Alternatively,
your favourite music service providers do worry about consistent
bar counts and adding bridges to be sure songs fall together
in sync. They are able to change the tempo in the background
without re-creating the chipmunk effect with the vocals.
They can also add special effects or cues such as whistles
for an interval format compilation.
Once
the compilation has been edited, it’s ready for duplication
which is the final link before the product is ready to hit
the market. Duplication fees can vary and it basically
comes down to volume. If one were to produce 2 million
copies of a CD they would pay substantially less per unit
than someone who produces 10,000 copies of a CD. While
music providers strive for the best quality and price, they
can be forced to pay a higher per unit charges when it comes
to duplicating.
Think
of all the work that is involved – or try to imagine the
steps that you would have to follow if you were to try and
license the music you use yourself. Who’d have time to
teach?
Now
let’s examine what it would cost if, hypothetically, we
were to make our own compilations from our favourite commercial
CDs without securing the appropriate licenses.
Remember that much as we may have done this in the past,
it was illegal then and is still illegal now. An average
90 minute CD contains 18 songs. One would need anywhere
from 4 – 6 CD’s which would cost roughly $60 - $90. Now
add your time of 2-4 hours to make that CD, are you really
saving when you add it all up?
Is
$35 to $40 really that expensive when you look at the convenience
of being able to open it, put it in and be able to go?
And knowing that you are using non-pirated music whose composers
have been rightfully compensated for their work is no different
than you wanting to be compensated for teaching your class!
Imagine how you might feel if someone videotaped you teaching
a class without you knowing, played it at another club for
thousands of members (and charged for it) and you weren’t
compensated for it.
So
the next time someone offers to sell you a home-burnt CD
for only $20, not only are they breaking the law and making
you an accessory to a crime, they are also hurting the original
artists and the integrity of the fitness industry. Making
unlicensed copies or buying unlicensed music hurts composers,
producers and most of all, your fellow instructors.
Now
that we have briefly covered the licensing aspect of music,
we must touch upon the “performing” rights that are also
relevant. So what’s the big deal if the composers have
been compensated for the mechanical and duplicating fees,
what else do they want?
It’s
a little more in-depth than that. To put it simply, can
you imagine a step class with no music ? As an instructor,
we are using someone’s work with the instructor and facility
directly benefiting from the performance associated
with the music.
When
you buy a CD, it only provides you with the right to listen
to it in private and for your own use whether it is in your
car stereo or Discman. Any type of public performance
of musical works is subject to copyright law and requires
a license. Public performance includes, but is not limited
to, fitness classes, movie theatres, restaurants, music
on hold, figure skating, cruise ships and even includes
Karaoke. To put it simply, each time a song is played
in public the composers of that song are entitled to be
paid for that performance.
Now
imagine how hard it would be to obtain permission from all
the different composers to obtain performance rights.
In Canada , SOCAN deals with the performing rights and administers
the performing rights for Canadians representing both music
composers and music publishers. SOCAN collects the license
fees and pays the royalties to these groups. In the US
, there are 3 agencies which administer performance rights:
ASCAP, BMI and SESAC and one must obtain licenses not
from just one agency, but all 3.
Fees
are set by the Copyright Board of Canada and really are
not as high as one might expect. The tariffs set by SOCAN
for “Fitness Activities” (Tariff #19) are:
Average
number of people per week per room multiplied by $2.14 (minimum
annual fee of $64.00) *
*
for more information, visit http://www.socan.ca/jsp/en/resources/tariffs.jsp
Below,
Wayne Saunders at the Edmonton SOCAN office provides you
with an easy scenario in which to figure out how much performance
licenses could cost a small facility on an annual basis.
To keep it simple, we said that the ABC Club has 50 people
on average taking fitness classes each week.
50
x $2.14 = $107.00 + gst for an annual fee of $114.49.
Divide that by 52 weeks and it works out to $2.20 a week
or $0.31 a day!
$0.31/day
or $114.49 annually (using the above scenario) is really
not that much – especially when you again consider what
a fitness class is with no music!
Another
question sometimes asked: Why are some clubs targeted by
SOCAN and others not? Unfortunately, SOCAN just does not
have the labour to locate and contact all the different
fitness facilities across Canada . As well, considering
that they oversee any type of establishment where music
is publicly performed or played, one can well imagine how
labour intensive it would be. If it is any comfort, we
are not alone in having to pay these fees - in Edmonton
recently, a dentist’s office was assessed for playing relaxation
music for his clients.
To
cut back, SOCAN suggests playing the radio in your club/facility
weight rooms. Radio broadcasts fall under different jurisdiction
and are permitted to be broadcast for the public. In this
case it is the radio station that pays for the right to
broadcast publicly. So limit your fitness music to your
studios and find a radio station that your clientele enjoys.
Another
big misunderstanding is that clubs feel they are exempt
from these fees if they purchase their music through a licensed
company such as Burntrax, Dynamix, Muscle or Power Music.
These companies do license their music, but that does
not include the “right to perform the music publicly”.
This basically means that anyone who plays professional
music CDs or tapes is not exempt from paying performance
fees and should obtain a license.
Copyright
and performance issues are very complex and this article
just touches the surface when it comes to music legalities.
If you would like further information on copyright and
performance licensing and how it may affect your facility,
please visit www.socan.ca
or contact them at their head office in Toronto at
41 Valleybrook Drive , Toronto , ON M3B 2S6 . They have
an excellent website and it also lists their 4 regional
offices across Canada .
So
the next time you are stepping to the beat to your favourite
CD in class, take a moment and reflect that just as it takes
a dynamic instructor to keep a class motivated, that instructor
also relies on dynamic music to compliment all the hard
work that goes into creating that perfect class!
Blanche
Hold is the founder of the Fitness Marketing Group (FMG)
and is the Canadian representative for Dynamix Music.
Blanche has been involved in the fitness industry since
1988 in many different capacities, however she is most recognized
for her expertise in fitness music and is known as the “”music
lady” by many. Blanche is Can-Fit-Pro certified and is
the Administrator of the team of PRO Trainers serving Alberta
and the interior of BC. Blanche can be reached via email
at blanche@fmgonline.ca
.
This
article is not intended to be legal advice and should not
be considered a substitute for legal counsel on specific
copyright and performance rights issues.
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