A dance company plans to use several musical recordings in conjunction with a dance recital and queries whether its use of the music requires a license.

That seems like a simple question. Yet, it quickly becomes complicated as the dance company’s efforts to research the issue yield conflicting information about how to go about licensing and whether licenses are even required at all.

(My analysis of the dance company’s situation assumes that all the music to be used in the recital is currently copyright-protected and not in the public domain.)

WHY ALL THE CONFUSION AND CONFLICTING INFORMATION?

Song Versus Sound Recording

The dance company plans to use musical recordings. One source of conflicting information might be confusion between permissions needed for the recording versus permissions needed for the underlying song. A recorded musical selection includes a copyright in the recording itself and a separate copyright in the underlying song. Each might have a different owner and each carries different licensing requirements.

There is no general public performance right in a sound recording. Hence, the dance company’s use of the sound recording for a live recital requires no license for the sound recording. (But, as discussed below, the situation changes if the recital is recorded). In contrast, with some limited exceptions, the public performance of a song generally requires a public performance license.

Grand Rights Versus Small Rights

Another source of the conflicting information might be uncertainty over whether the dance company’s use requires non-dramatic performance rights (aka small performance rights) or dramatic performance rights (aka grand or large performance rights) in the song. The first category of small performance rights grants permission to present non-dramatic public performances of a song (such as playing the song on the radio, in a nightclub, or as background music in a film).

The second category of dramatic performance rights provides permission to make a theatrical presentation of a song or act out a song. A dance performance would typically require dramatic performance rights. Non-dramatic performance rights in a song can usually be obtained through one of the performing rights organizations – ASCAP, BMI, or SESAC. Typically, you must contact the song’s copyright owner or music publishing company directly to obtain dramatic performance rights.

WILL THE DANCE COMPANY RECORD THE RECITAL?

If the dance company plans to record and share copies of the recital (either as hard copies or via the internet), in addition to publicly performing the music, the dance company is now reproducing and distributing the music. Those reproduction and distribution activities require a synchronization license for the songs and a master use license for the sound recordingS.

DOES THE DANCE COMPANY PLAN TO LIVE STREAM THE RECITAL?

Song License Requirements for Live Streaming

For the song, live streaming of the dance recital via the internet still requires a public performance license – and, as discussed above, likely a grand or dramatic public performance license directly from the song copyright owner.

Sound Recording License Requirements for Live Streaming

With respect to license requirements in the sound recording for the live stream, I admit to being stymied. What is the necessary clearance for a sound recording heard during a live stream (audio-visual) event offered in real-time only?

As mentioned above, there is no general public performance license for a sound recording, but there is a right to perform the sound recording publicly by means of a digital audio transmission. However, the Copyright Act Section 114 definition of “digital audio transmission” explicitly says “{digital audio transmission} does not include the transmission of any audiovisual work”. Does this mean that a sound recording included in a live audio-visual stream (like a dance performance) is not a digital audio transmission – in which case no sound recording public performance license is needed for the live stream? If anyone knows of case law, additional statutory language in the Copyright Act, or industry practices that shine light on this question, please share.

Of course, if the live stream is to be archived and subsequently shared with others, that results in the same licensing requirements for the sound recording as offering a recording of the recital. A master use license for the sound recording would be required.