Well, it’s three days before band camp and you finally finished planning and designing your marching show. The drill is completed, the music is in, the flags are ordered, the staff is set. Everything is ready for the competition season. Or is it? Band directors often overlook the most important legal aspect of marching season planning: copyright and licensing.

You may say to yourself, “Oh no, my state music organization made me get permission. I am covered. I have the letter right here.” However, that letter only provides you with the permission to arrange your musical selection. It does not give you permission to perform the piece or record it. So, if you are like me, you will scratch your head and ask, “Who else do I need to pay?”

Note – If you are a seasoned Indiana band director, you can skip to the next paragraph. You are well aware of the steps needed to secure “Permission to Arrange” due to ISSMA regulations. The first step in making sure your marching show is legal is to attain proper “Right to Arrange” permission from the publishing company that holds the rights to your musical selection. You can get this information by looking at the original score or an audio recording, or by checking the BMI and ASCAP web sites and performing a title search. The search will pull up all the pertinent information for the publisher. Next you need to fill out a “Request for Permission to Arrange” form and send it to the publisher. After a few weeks, you should receive confirmation that the publisher has received your request. If a month goes by and you do not receive any correspondence from the publisher, do not assume that your request has been received. As my grandmother says, “The squeaky wheel gets the grease.” Stay on top of the process and make the necessary phone calls and emails to ensure that your request is being processed. At this point, you are at the mercy of the publishers. They have the right to either deny your request or grant you permission. They also have the right to charge for the permission. For example, I have seen publishers charge $150 for a piece. I have also seen publishers charge $700 for a piece. When you consider that marching shows usually consist of three or more musical selections, it can get very expensive. Therefore, when you receive your letter of permission, make sure you make copies and put the originals in a safe place. Those are very important and expensive letters. If you are a director in Indiana, make sure you attach these letters to your ISSMA District Entry and mail it certified mail. (I hope this section helps some new directors or collegiate students understand the “Permission to Arrange” process.) However, you can bypass all of this paper work by hiring an outside firm to pursue your copyright permission. Bands of America provides such a service for $250 (not including any amount due to the publisher). Also, a message on the Simply Instrumental message board lists such a service available by contacting Copy Right Clearance Services (copyrightclearanceservices@yahoo.com).

So, you have written your permission letters, the publishers have granted permission, you sent in your check for the arrangements, everything is now set. Well, not necessarily. You still have not received any permission to perform the pieces in question. You would think that after getting permission to arrange a musical selection, you have also been given rights to perform the selection. I mean, you know there are a lot of directors with tons of free time that spend countless hours arranging a marching score just to put it on a shelf and never perform it. So, in the future you may need to acquire performance rights licensing. Currently, BMI and ASCAP do not offer a performance license to secondary or primary schools. They allow you to perform the pieces you have purchased. However, I have contacted BMI and it seems they will be demanding performance licensing in the future (as soon as they decide what to charge and how to implement the process). I am still waiting for a response from ASCAP. Keep an eye out in the mail room for mailings from either company or the United States Copyright Office. The good news is that BMI and ASCAP hold the licensing for the majority of musical selections. The bad news is, in the future, additional checks will need to be written. The process will probably include a blanket General Performance Agreement from BMI and ASCAP. This will cover all performances of music covered by ASCAP and BMI for a specified length of time. Generally, the contract would run for one year. You will need to check that your music is licensed by one of those two companies. If not, you will need to research the piece to locate the rights holder. After mailing in your contract with payment, you would be ready for the season. (In addition, you are legally covered to perform any concert or pep band piece that ASCAP and BMI controls - just an added bonus.) Again, BMI and ASCAP do not currently require school music departments to purchase a performing license. Just be aware that this could (most likely will) change in the future. There is some confusion over this issue between MENC, ISSMA and the publishing companies. You may want to call the publisher of your music selection if you have any concerns. In addition, you may want to check with the festival or contest host to ensure all legal steps have been taken. You are now prepared, unless you plan on recording your performances and selling the CDs for a fundraiser.

The next step is securing mechanical rights for your performance. Mechanical rights grant you permission to record and distribute audio and video recordings of your performances. So, if you plan to create a CD/video collection of your marching season, you need to acquire the proper rights to do so (regardless if you are providing the media for sale or for free). In addition, you will once again need to pay someone for this permission. Generally, this is a very small fee per recording. Contact the Harry Fox Agency for further information. This agency will help you acquire the proper rights for your recordings. They can also help determine payment rates.

Some of you may be thinking, “I am not going to go through all that trouble. Who is going to catch me anyway?” I completely understand that line of thinking. Yet, I have no desire or means to pay large legal fees incurred by a lawsuit. Nor do I wish to serve jail time for my ignorance or laziness (the maximum fine is $250,000 with a possible 5 year jail sentence). In reality, your school would probably pay the price for overlooking this important aspect of music performance. Retroactive fees and settlements are probably more in line with the outcome of infringing copyright laws. Yet, it is not impossible or implausible for a director to receive part of the blame. Therefore, I recommend directors take the appropriate steps to ensure their organization is following the proper copyright and licensing procedures. At least in your mind you will know you have followed the rules and you can begin the season with a clear conscious.

Now if we could just figure out a way to make photo copying sheet music legal.

Helpful Links –

MENC Copyright Resources - http://www.menc.org/information/copyright.html#1

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Luke Aylsworth is the Director of Bands at Springs Valley Jr./Sr. High School in French Lick, Indiana. Luke received his Bachelor Degree in Music Education from Indiana University and is currently a student in the IUPUI Masters in Music Technology Graduate Program. Luke has studied percussion with Gerald Carlyss, Wilber England, Todd Sheenan, James Ancona, and James Strain. Luke is a third generation music educator. Luke's father and grandfather were also band directors at Springs Valley Jr./Sr High School.