When discussing my research outlined in earlier blogs about the Zappa Family Trust’s slant on copyright, a colleague of mine recently highlighted that they have began to claim that a ‘tribute performance’ falls into the category of a ‘musical dramatic work’, and can therefore ask for ‘Grant Rights’ as opposed to the ‘Statutory Rights’ associated with ‘straight’ or ‘Small Right’ musical performances. This is an interesting angle that I would like to understand – so here goes.
This link displays a recent ‘cease and desist’ litigation letter from the ZFT against The Paul Green School Of Rock. It claims the following
1) Any ensemble that are a ‘tribute’ act require an individual ‘Grand Rights’ licence to perform Zappa’s music live, despite the fact that the venue may be registered with ASCAP or a similar collection society.
2) That any act performing Zappa’s music only or any ‘tribute’ performance falls into the category of a ‘revue’ (This terminology is taken directly from ASCAP themselves) and therefore “implicates dramatic rights in that composers works”.
3) That many of Zappa’s works are ‘inherently dramatic in nature’.
4) That use of the name ‘Zappa’ or ‘Frank Zappa’ may constitute a ‘violation of tradmarks’.
Not surprisingly, the document then progresses to state anyone violating these factors are infringing copyright and liable for prosecution.
As you can hopefully see from the draft copy of a paper I am writing (a couple of blogs ago), I am attempting to get a balanced view of this. However, I genuinely don’t understand how ‘Grand Rights’ fits into the picture. There is an excellent blog on this very subject here, and it alludes to numerous factors such as how ‘Grand Rights’ depart from the collective bargaining of ‘Statutory Rights’. The article then quotes from ASCAP’s own description of Grand Rights as follows.
A dramatic performance shall include, but not be limited to the following:
- performance of a dramatico-musical work (as hereinafter defined) in its entirety
- performance of one or more compositions from a dramatico-musical work (as hereinafter defined) accompanied by dialogue, pantomime, dance, stage action, or visual representation of the work from which the music is taken
- performance of one or more musical compositions as part of a story or plot, whether accompanied or unaccompanied by dialogue, pantomime, dance, stage action, or visual representation
- performance of a concert version of a “dramatico-musical work” (as hereinafter defined).
It then quotes BMI’s description as
BMI only licenses non-dramatic performing rights in the music it controls. A dramatic performing right can involve either music which was originally part of a “dramatic or dramatico-musical work” (the term generally used to describe operas, operettas, musical shows, ballets, movies and other similar productions), or it can involve the dramatic use of music which may not have been originally a part of such a dramatic or dramatico-musical work.
Obviously, if one wishes to perform a work such as Thing Fish or Joe’s Garage in its entirety, a Grand Rights licence looks unavoidable. However, does point 2 of the above rule out performing single tracks from these works? Especially if they are accompanied by any type of dramatic element (whatever that means). Thing Fish is particularly interesting as many of those pieces were themselves taken from Zappa’s catalogue elsewhere. Point 3 seems to allude to the fact that if a piece of music is juxtapositioned against a ‘plot’ or a ‘story’, then the music becomes a musical dramatical work by default.
I am not a lawyer, but do the above descriptions by ASCAP and BMI indicate that a tribute performance is automatically in the category of Grand Rights?Although I certainly agree that many many of Zappa’s pieces were dramatic in nature, (Myself and Richard Hand have written a published paper on this) they are not musical dramatic works in the traditional sense. Speaking to colleagues within the UK indicates that a ‘Grand Right’ in the US is very different to that of Europe, so that may be the reason why Sex without Nails Bros for example have been able to tour Joe’s Garage in Germany for example?? I was also advised that the contentious issue is what percentage of the work is still owned by ASCAP (or similar) and what is retained by the publisher/composer. This is obviously key in any potential legal action as it would enable one to differentiate what aspect of the work is being ‘dramaticised’.
I would appreciate it if this post is circulated as widely as possible, and it would be great if comments where left here so a discussion can occur that assists clarification. Any assistance appreciated.
Note: although comments were not left at this site – there is a great reaction chain on Kill Ugly Radio.
Commenting on my own blog. But how does Zappa relate to people like Bowie who had an ongoing dramatic aspect of his him. I am not aware of any tribute bands being sued regarding Grand Rights
Interesting Paul, and a case in point as to why *all* rights should be statutory, i.e. subject to regulation by the state rather than a matter of the monopoly owner determining price and access to works. What’s going on here is surely an unsavoury, but nevertheless all too common, form of legal threat and intimidation. Irrespective of whether or not ASCAP believe that tribute acts, or other single composer performances, constitute a revue and are therefore outside the purvue of statutory, blanket licencing the key issue must be what the law says. And unless there are any cases on this (neither the Zappa lawyer nor the blogger you mention cite any) then the points made by the Zappa lawyer seem tenuous indeed – the trademark issue is a separate one of course.
The first point to make is that the principles at stake here are exactly the same as when a symphony orchestra tours playing the works of a single composer, still in copyright. There is no question of ‘revue’ status being attributed. Why should this be so be in the present case. As for the proposal made by the lawyer that Zappa’s work is inherently dramatic that seems both difficult to sustain and irrelevant. The question is surely whether the Paul Green School of Rock are using Zappa’s music in a dramatic performance of their own. And prima facie they are not.
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