Ever wonder about the legitimacy of using non-original music to accompany a fireworks display; our readers obviously do.

Music to accompany fireworks unquestionably adds to the experience for spectator and display designer alike. However, the use of non-original music presents issues involving copyright law and publishing rights that rarely, if ever, beget a legal dispute. But an examination is, nonetheless, important.

First and foremost, a musician or composer cannot avail oneself of the powerful remedies provided by statute under the U.S. copyright laws unless and until the work is copyrighted; otherwise, the person is limited to enforcing one’s ownership rights under the common law. Interestingly, the right to recover attorney’s fees under federal copyright law acts as an incentive for an attorney to accept a lawsuit with a prospect of limited damages; e.g., a one-time violation of limited audience size. Similarly, the knowledge that attorneys’ fees can be recovered acts as an incentive for the musician or composer to undertake the expense of a lawsuit. To summarize, musical works that have not been registered with the Copyright Office in Washington, D.C. are not protected by federal copyright laws.

Importantly, under federal law all musical works and compositions considered to be in the ‘public domain’ are exempt from the protections of the copyright laws. While most modern musical works and compositions qualify for copyright protection up to 95 years, all musical compositions created before 1922 are, presumptively, in the public domain—many traditional, patriotic, and military songs commonly heard at fireworks displays are likely to be legislatively exempt. Commercial use of modern music, however, is likely to be subject to fees paid to ASCAP (American Society of Composers, Authors and Publishers) and BMI (Broadcast Music Incorporated); two businesses whose primary function is to collect publishing fees and royalties associated with a given musical work. ASCAP and BMI offer a public performance rights application, which imposes a fee schedule dependent upon usage, and some large display companies have entered into them as part of the cost of doing business, or pass the cost along to the customer, or both. In the case of radio stations that publicly air hundreds of songs each day, blanket licenses are commonly purchased.

To the extent that one can argue that the music is merely incidental to the fireworks display one may contend that no violation of the copyright law has occurred. This argument is a factual question but, in my opinion, the benefit of the doubt appears to tip in favor of finding that the music was ‘incidental’. This is especially so when one can also argue that the musician and composer have not been deprived of their right to obtain valuable benefits from their work; indeed, a public display likely confers wide exposure of an artists’ work in a positive environment. Nonetheless, I have viewed some fireworks displays that appear to trade off upon, and promote, the musical aspect of the display to a degree whereby copyright issues may be more prominent.

Many fireworks displays are paired with local radio stations that provide simultaneous transmission of the music selected for the display; and, in these instances, it is commonplace for the radio station to comply with the copyright laws to the extent that they may apply to a particular display through the use of their blanket license to air the music. In similar fashion, nothing prevents a fireworks display company from requiring the display sponsor to accept responsibility for all copyright and performance obligations and licenses.

Interestingly, many theme parks, as well as some large fireworks displays sponsors, rely upon original musical works and compositions (e.g., Macy’s, former Hard Rock Park, Disney), completely avoiding payment of royalties and claims of infringement; indeed, these same companies frequently register their original musical works and compositions in order to protect against infringement by their competitors and others.

Private displays are considered to be non-public and, therefore, non-commercial in nature; consequently, private fireworks displays are not likely to have the same concerns when using non-original music.

The issue of sampling needs brief mentioning (no pun intended), since it introduces another set of legal principles. In short, sampling of a non-original music composition allows the user to argue that no violation of the copyright law could occur since the entire work has not been reproduced; however, it is my opinion that the legal standards surrounding ‘sampling’ have developed over the years to the point where, generally speaking, the same protections afforded the entire musical composition may in the future also be applicable to just a portion of it.

Lack of enforcement, due to, among other reasons, the distraction and expense of copyright infringement lawsuits, is likely to be a major reason civil enforcement actions in the context of fireworks displays are rare. However, to the extent that fireworks display become more uniform—whereby the same display occurs using the same music night after night or similar frequency—copyright owners may be more inclined to seek just compensation such as in the form of royalty payments.

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