Can We Report Neighbor for Blasting Copyrighted Christmas Music?

Dear Rich: Every year, my neighbor blasts Christmas music (and some non-Christmas music) with a synchronized Christmas light show. As you can imagine he goes overboard and drives most of the neighbors crazy. We've asked him to turn it down (or off), complained to the authorities, and none of it does much good. We're thinking of suing him as a nuisance. One of the neighbors wondered if we could report him for playing copyrighted music without permission. Is that possible? To whom do we report it? That's the Christmas spirit! We can totally relate. We once visited a Dear Rich Staff member in the hospital at Christmas time and somebody down the hall was blasting 'Silent Night' on a toy piano (talk about an oxymoronic choice of material). What is a 'humbug,' anyway?
Right, you had a question. The neighborhood blasting of copyrighted music would likely qualify as a public performance (sidebar on right) under U.S. copyright law. In other words, it falls into the same category as playing music at a ballgame or at a bar, and requires permission. If it is done without permission, it would be considered an unauthorized use of the music -- that is, an infringement. The gatekeepers for almost all of these public performance rights are two organizations, BMI and ASCAP. They grant permissions on behalf of thousands of songwriters. They also enforce rights and sue organizations and individuals who publicly perform music without permission. You could report your neighbor to the appropriate organization although you would need to identify the copyrighted songs from the performing rights organization's repertoire -- for example, BMI has over 7,000 registered songs with the word "Christmas" in the title. The organization could then choose to enforce rights. That's where you might run into a problem. Following the strange flap over the Girl Scouts/Macarena debacle, performing rights societies might be gun-shy about going after a homeowner playing Christmas music in his cul-de-sac. We think you and your neighbors would be better served by handling this in the traditional American way -- small claims court.

Rights to Perform Show Tunes

Dear Rich: I represent some members of a theater musicians organization. My question is about transcribing theater numbers from a CD, andperforming them in public. Do we have to pay any copyright fees to anyone? Dowe have to pay the  Tams-Witmark peoplewho own the rights to the music? Actually, the Tams-Witmark company doesn't own the musical performance rights to musicals; they control what are known as "grand rights," which refer to the permissions necessary to stage an opera, play with music, or a work ofmusical theater. So, you need to consult Tams-Witmark if you are putting on the show, but not if you are only performing songs from a show -- for example, playing songs from The Wiz, Wicked or West Side Story.
BMI and ASCAP. Performance rights organizations such as BMI and ASCAP collect for such performances by charging venues with an annual blanket fee. So the venue ends up paying for it, not the musicians. The business of transcribing the music may technically require permission, but it is unlikely anyone will chase you for writing out the chord changes and melody of a song unless you attempt to sell these transcriptions.
The Name's Laguardia. Can you believe that there was once a hit broadway show about Fiorello LaGuardia and it won the Tony and Pulitzer Prize? The Dear Rich Staff remembers it fondly (probably because we had the lead in one high school performance).

Does Downloading MP3s Trigger Public Performance Payment?

Dear Rich: In your Getting Permission book, when you discuss digital download permissions for MP3s, you write that "Music publishers currently seek to get paid in two ways (referred to as “double-dipping”), once for the reproduction of the MP3 file and again for the transmission of the file over the Internet." I thought that they could only get paid for the downloads. You're right. The statement in the book is outdated. In a 2007 decision, a federal court held:

"Although we acknowledge that the term “perform” should be broadly construed [cite omitted] we can conceive of no construction that extends it to the copying of a digital file from one computer to another in the absence of any perceptible rendition. Rather, the downloading of a music file is more accurately characterized as a method of reproducing that file."

It's true that music publishers are still seeking to get paid both ways and that they petitioned Congress to revise the copyright law accordingly. But their desires have not yet been transformed into law and we'll report if and when things change.