Letter from Tresona

[N.E. Brigand]

Both Tresona's letters presume that the issue is teachers not paying their fees, not the actual issue which is whether they are obliged to pay those fees.

Can anyone state the legal reason arrangers for non-profit educational institutions are supposed to pay fees?

And by legal reasons I mean either the black letter law in section 110, or specific case law refining it.

I'm not sure there's supposed to be an education copyright market at all. The premise seems to be you have to pay only if your work competes with the entertainment market versions of the piece. Thus, if you charge admission for profit, you must get copyright clearances. But if the admission goes to support the non-profit educational purpose, you don't have to?

This seems to be a culture in which thousands of teachers without lawyers get their advice from opposing counsel, leading to predictable systematic exploitation.

Another way of putting this is, has a non-profit teacher ever been found guilty of arranging music for their students without permission? Or an arranger for hire, even? Both are employed by the school to support the school's educational mission. Both take home a check personally.

Have fun reading: copyright.gov. (Not meaning you, since you already seem to have read it.)

Edited April 15, 2016 by N.E. Brigand

[Kamarag]

Exactly. My point is that either they need to care, or a Program Coordinator needs to take a larger view.. or they don't see a/v issues or merchandise revenue as a big deal. It could be simply fans care about a/v products more than the corps, which is a whole other issue.

Mike

Well, they really can't. Producers apply for mechanical and synch rights *after* the recording is made (in most cases). Designers can't really get accurate info on those rights ahead of time. The process doesn't provide for that. DCI/DCA should never, ever pass a rule requiring corps to secure those rights (they can't ) or only pick music that the media producer can secure rights for.

Edited April 16, 2016 by Kamarag

[flammaster]

How much are they skimming off the top?

[Pete Freedman]

Well, they really can't. Producers apply for mechanical and synch rights *after* the recording is made (in most cases). Designers can't really get accurate info on those rights ahead of time. The process doesn't provide for that. DCI/DCA should never, ever pass a rule requiring corps to secure those rights (they can't ) or only pick music that the media producer can secure rights for.

I believe DCI negotiates price quotes (for video and audio sales) early in the process because the corps do tell them when they decide what they are using, including audio clips. Then they make the actual purchase after FInals when they know who's on the DVD and what they actually used. This makes sense, assuming DCI really has to pay anything, which is now in doubt for me at least.

I was told the corps are generally helpful in providing info as soon as they decide what they are using. So while they could mandate that the corps do so, they feel that compliance is pretty good by the corps, so no draconian rules are necessary. (And anyway the BOD is the directors who wouldn't pass it). Still, in cases like Cadets 2012 and Peanuts, the corps didn't inform DCI at all until it was used at a show. Perhaps it was an oversight. Anyway it was too late to get the rights. And in the case Madison 2011 and ESOM, the rights were negotiated early, but were no longer available at buy-time after Finals. Everybody did everything they reasonably could do, but it didn't work out.

[Michael Boo]

...And in the case Madison 2011 and ESOM, the rights were negotiated early, but were no longer available at buy-time after Finals. Everybody did everything they reasonably could do, but it didn't work out.

Just in case you missed this in another thread this past week...

http://www.drumcorpsplanet.com/forums/index.php/topic/164047-editedcensored-material-in-dci-2015-blu-rays/?p=3516618

[cixelsyd]

Well, they really can't. Producers apply for mechanical and synch rights *after* the recording is made (in most cases). Designers can't really get accurate info on those rights ahead of time. The process doesn't provide for that. DCI/DCA should never, ever pass a rule requiring corps to secure those rights (they can't ) or only pick music that the media producer can secure rights for.

Not sure I agree with all of the above.

For one thing, there is some information that is available ahead of time. For instance, we know in advance that certain material will trigger most favored nations provisions for synch rights. And if a certain publisher or their agent (think Tresona) was demanding confiscatory rates for all their music, that would be known ahead of the upcoming season.

Also, many corps distribute recordings of their performances to their membership via tour videos, and to the general public via online media and/or products sold from the souvenir stand. I would think that a corps that does any of those things regularly should be requesting the pertinent rights for their show music up front.

I understand that there cannot be a simple "rule" prohibiting music based on a synch rights landscape that is constantly changing. However, there will inevitably be "policy" for excluding certain material from the DCI video product, as we have been seeing in the form of edits, removal of whole corps (i.e. 2003 Kiwanis Kavaliers), or whole products (i.e. video for 2015 non-finalists).

Designers should care about these issues.

[C.Holland]

You can't possibly predict who will and who will not grant you the sync rights or what they will charge. The arrangements change throughout the season. So nothing is really finalized until... finals. Plus, if someone else comes along and pays for exclusive rights to it, for say, a commercial or something, or the Broadway show goes back on tour, that changes prices and such.

[Lead]

In what capacity did you get this letter? Do you run a performing arts organization?

After you get a bunch of answers here, I suggest you pick the ideas you like and write Tresona back. See if they respond.

How much does Tresona think organizations should be paying for music? Since they specifically mention organizations with annual budgets of $500,000 or more as those that ought to have no problem paying these costs, does that mean that smaller organizations should expect to find Tresona's music too expensive?

And I think they either need to name names or shut up. Who didn't secure performance rights? Why not list all the organizations who did and didn't get rights in 2015?

What about the synchronization rights? Why could DCI afford to produce video of more than the top twelve, and DCA and BoA afford to produce at all, in past years, but not in 2015? What changed? Were DCI, DCA, and BoA not paying for those rights? Or did Tresona decide that the amounts that were due needed to be much higher?

How much money are Tresona's artists losing from the videos that aren't being produced?

How much money does Tresona get for licenses to works whose creators have been dead for 50 years or more? Do they agree that the changes in the copyright law that much this possible fly in the face of the original meaning of the Constitution?

I'm also curious to know what DCI thinks about this letter. Are they one of the companies that hired expensive lawyers to contest Tresona's claims? Does Tresona think they were wrong to stand up for their own rights?

I'm a Band Director in Indiana. Our Copyright Licensing 'yearly average' for securing rights to our shows averaged $400-$600 pre-Tresona, and $1500-$2200 now that Tresona has come into their extortative ways existence. I ALWAYS played by the book copyright-wise. They have, however, cornered the effective market, and either they themselves have decided to double or triple what the individual music publishers were charging, or they convinced the publishers to do so (my guess is it is some of both). As an example, Hal Leonard's 'standard' fee to use a piece of HL-owned music was $300. Now it has ballooned to $590. Some publishers used to charge $100-$150 to arrange their music for marching band. That has ballooned to $400-$590, depending on the publisher.

This company, and the (shady) practices behind it are obscene, and are 100% hurting the smaller bands like mine (my band competes pretty decently within the ISSMA fall circuit).

It is out of control.

[perc2100]

I got this in my inbox today due to my use of their services. No doubt this is an attempt to do some major PR control. I'm not sure what specifically made them want to send this out though. Maybe issues related to DCI, WGI, and MFA?

"Dear ####

I would like to take this opportunity to re-introduce Tresóna: who we are, what we do, and why we do it.

Tresóna was started, and is currently staffed, by musicians, educators and music fans. We have created a simple and cost-effective licensing platform and are committed to protecting the rights of songwriters to make sure that they are rightfully compensated for their work.

Thousands of hard-working songwriters and publishers are dependent on the royalties collected from the licensing of their music to survive. A vast majority of these publishers are small family businesses with one or two employees; they are not multi-national corporations. They are no different than the arrangers, choreographers, set designers, costume creators and thousands of others whose livelihood is dependent on a vibrant music industry.

Music is the key ingredient and the foundation of all performance ensembles. Without songs, there would be no marching bands, show choirs, a cappella groups or any other musical performance group. The licensing of custom arrangements, which is required by the U.S. Copyright Act, is often one of the smallest line items in the budget of many ensemble programs.

Most performance ensembles obtain the necessary licenses; however, there are some ensembles and organizations which refuse to do so. The abuse of the system by these groups for illicit financial gain has been shocking. There are large enterprises with ensembles that travel all over the country performing at both nonprofit and for-profit events. They pay enormous sums of money for choreographers, arrangers, contest entry, lighting, costumes, props and a host of other outside services. Despite having budgets of more than $500,000/year and generating surpluses of over $150,000/year, these organizations refuse to get the licenses they need and compensate songwriters for their songs.

Rather than pay the relatively small licensing fee and promote proper licensing behavior, some ensembles have opted instead to retain high-priced lawyers and consultants to avoid obtaining the necessary licenses. When the dedication of this small group of ensembles deprives songwriters of their ability to make a living, Tresóna and the rights holders we represent are forced to defend these rights in court.

When this happens, it is disappointing and begs the question: How can the community as a whole promote participation in the arts and suggest to students that a career in music is viable if it doesnt support the foundation of the entire music ecosystem - the songs and the songwriters?

Tresóna is proud of the work we do and deeply value the excellent working relationships we have developed with thousands of arrangers, directors, music educators, parents and performers around the country. We are committed to partnering with, and listening to, the ensemble community so that we may grow these relationships, as well as nurture new ones.

We thank you for your support and look forward to our continued relationship in the years to come.

Best,

Larry Mills

EVP, Tresóna"

.....

End of letter

I absolutely understand the need for composers/arrangers/creators to be compensated. I also understand that there are groups (both scholastic and independent) that have extremely bloated design budgets. But in my opinion, this copyright situation is getting a bit out of hand, at least in regards to video performances. We are losing an opportunity to share with our younger generations the great performances organizations like DCI, WGI, and MFA have to offer.

Our kids (and educators) are missing the ability to see their peers across the country achieve things that they didn't know were possible. I can't even purchase older BOA and WGI DVDs for our library anymore.

What are your thoughts about what Tresona is saying?

Without reading responses from other sides of this debate, I will say that I appreciate you posting this letter and it is very interesting to hear Tresona's side. For as annoying as this is for us, there are countless stories of artists who created iconic art only to be exploited and poorly compensated for their efforts (for a good example see how WB/DC let Superman's creators languish in poverty while their SUPERMAN film from the 70s was bringing HUGE profits). Given Tresona's argument, it is hard to be too critical of their philosophies (without knowing how much they are charging/asking for to secure all necessary rights)

[Lead]

Teachers who hire services like Tresona to tell them what they owe are likely to pay for things they don't have to.

But the publishers won't even talk to you anymore. They have hired/retained/(whatever) Tresona to handle this business for them. When you call and ask for a licensing person, they refer you to Tresona. If you click on the Licensing/Copyright bars on their webpages, they refer you to Tresona.