# GEMA & other PROs on music samples in e-shop



## nikolas (Jan 31, 2016)

So,

I have a VERY serious question.

I am working with people from Germany, and they want to have an e-shop with CDs (that they produce).

In this case, apparently, GEMA requests a payment for *music samples* (even 5 seconds, or through youtube) to be used as music samples (so that people will know what they're getting).

So, the website can either:
a. Have the CD only without any samples
b. Have the samples with links to a different website, to buy the CD
c. Have both, but pay GEMA

Is this true? And if so, what happens with the rest of the world...?


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## Gerd Kaeding (Jan 31, 2016)

nikolas said:


> So,
> 
> I have a VERY serious question.



Hello Nikolas ,
that's a very complex question for a forum, and some highly important info is missing:

- Are these people from Germany also your co-writers or co-arrangers ?
If 'yes' , are they members of the GEMA ? Is their co-writing / co-arranging for the particular works registered with a PRO ?
If something of the above is true : ... is this more an attempt to sell music from a "Band's website" ?

- Or are "they" actually a company - a kind of online re-seller , registered as such in Germany - , or a small independent music Label that wants to distribute a CD with your compositions on their website ?


- And : ... why couldn't _they_ answer these questions for you ?



Let me know.

Best
Gerd


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## nikolas (Jan 31, 2016)

Ok, here's the whole deal (and thanks Gerd, for answering).

I'm working on a project (German "based").

I'm the sheet music publisher, which means that I deal with the edition.

The organiser of the project, a pianist, has recorded the works of the first 25 composers and wants to make a website to sell the CD.

So.

1. The person making the CD is a pianist. Not the composer, not the arranger.
2. The person making the CD lives in Germany, but the composers are from all over the world (many with GEMA, but one with STIM, a couple with SAGEM, ASCAP, etc... you name it).
3. They probably can answer themselves, but in the meantime it hit me that if that applies to Germany then why not to my website?

You see as a publisher I use, continuously music samples, to advertise the music that I publish (not necessarily compose). And I use these samples in the same website where I sell music scores. AND A CD! So, I'm practically doing the same thing (though I have no one from GEMA in that CD, but several in our catalog of sheet music works).

Of course it hit me as odd. I can register a work in CDBaby for less than $60 (the whole CD), and it goes to itunes, amazon, etc... so how can they be paying royalties for the samples that they use? I mean these giants tend to not pay... anything.

So I need to research into this, and vi-control for such issues is my first stop! :D

Thanks! ^_^


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## lpuser (Jan 31, 2016)

Nikloas, no matter how you put it: As soon as GEMA members are involved, GEMA fees are applied for just about everything. The point is: These members have (with their membership) transferred the job to collect royalties etc. to GEMA, meaning that no longer "they" are responsible, but GEMA is. So in fact: Whenever somebody (even the GEMA member herself/himself) puts anything up to a website or produces a CD and and and, GEMA fees apply - aka payment is mandatory!

I have had a discussion on this many years ago with a famous composer who found himself having to pay for his own works as soon as he has put them on his website. You may certainly disagree with this situation, but from a contractual point of view, it is logical: If the GEMA members hire a 3rd party entity (GEMA) to collect royalties, this 3rd party MUST do it and don´t care about an artist advertising himself/herself or asking any other questions in advance. They just collect.

Personally, I would really write to GEMA. Usually they are responsive (although quite slow sometimes), but there you solve the situation much better than we can here. There are certain areas where - based on the number of playbacks on a website e.g. - a common fee can be arranged etc. etc. - but this should be discussed with them in order to be on the safe side.

Cheers & good luck
Tom


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## Gerd Kaeding (Jan 31, 2016)

lpuser said:


> I have had a discussion on this many years ago with a famous composer who found himself having to pay for his own works as soon as he has put them on his website.



Hi Tom ,
to my knowledge this is not quite true (anymore)... . Please read my post below.
Best
Gerd


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## Gerd Kaeding (Jan 31, 2016)

nikolas said:


> Ok, here's the whole deal




Okay , a very complex topic . Hope to find the right words in english
( … I’m more fluent in speaking _Klingon_ … ):



Although the user has worldwide access to any website that contains music ,
the website creator has to deal with national laws of his/her country concerning music royalties , copyright , etc . .

In times of the big and powerful worldwide companies like Youtube, Apple (iTunes) this might get lost a little bit .

So , the conditions for being able to use (non-royalty-free) music on a website varies from country to country,
according to their specific national laws and therefore the license rules of that particular territory's specific PRO’s .
No matter to what PRO the music author/composer of those music samples belongs to.



In Germany the situation is this:

When someone located in Germany creates a website that contains music,
he has to deal with the german copyright laws and with the GEMA , which collects both
the performing rights as well as the mechanical rights for the composers in this territory .

Now , GEMA makes a difference between a commercial website that is using music samples
to _sell_ music , and a composers homepage where his/her own music works are promoted.

_Both_ scenarios need a license from GEMA .


*1.)*
The *composers homepage* scenario is possible through a *free license* from GEMA
( which to my knowledge currently includes the possibility to stream music and some 1200 _promotional_ downloads ).
However , it hast to be a *self-promoting and complete non-commercial *website
( ... no sales ; Ad-free (GoogleAd ; etc. ; Sponsors ; ... )).



*2.)*
For “third party” websites that use music samples ( … which means the author of the music is someone else …) the license is not free and
GEMA makes the following difference here :

- e-shop that actively sells the music on that website:
the license is some 440.-Euro per year for a traffic of 120000

- commercial Productpresentation ( no actual sale on that site , but links to a store ):
the license is some 400.-Euro per year for a traffic of 120000

- Focused Presentation of the music ( no sale ; no links to stores ) :
the license is some 160.-Euro per year for a traffic of 120000

- A non-commercial Website of a Band or Choir that performs other composers music
( no sale ; no links to stores ; no third party Ads in it ( GoogleAds , etc. ) ) :
the license is some 100.-Euro per year for a traffic of 120000


The numbers I mentioned above might not be completely accurate , this is
something that surely changes from time to time, but these are the numbers
I remember.

The GEMA license model that names the correct conditions is called “VR-W I” .
With this info your partner in Germany can contact GEMA directly and ask them
for detailed and up-to-date license conditions .


- - -


Hope this helps in any way .


Best
Gerd


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## Gerd Kaeding (Jan 31, 2016)

nikolas said:


> You see as a publisher I use, continuously music samples, ...



Again , the situation for you in your country (within the territory of a specific PRO) might be different compared to the situation in another territory.




nikolas said:


> Of course it hit me as odd. I can register a work in CDBaby for less than $60 (the whole CD), ....



Online Stores like CDBaby , iTunes , etc. , negotiate those streaming / presentation fees with the various national PRO's . Those fees ( it they pay fees at all ) are included in their price models for the buying customer of their services.


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## nikolas (Jan 31, 2016)

Gerd and Tom.

Thanks to both. I will be in contact with the German party and transfer this information. I'm still thinking that this is bizarre, as I doubt PRS (UK), or ASCAP actually have similar rules (from what I've seen anyways), but again this is GEMA.


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## Gerd Kaeding (Jan 31, 2016)

nikolas said:


> Gerd and Tom.
> I'm still thinking that this is bizarre, as I doubt PRS (UK), or ASCAP actually have similar rules



For U.K. based music website e-shops PRS has the "Limited Online Music license" for 130.- £ , when the shop generates less than 12500.-£ .

( http://www.prsformusic.com/users/broadcastandonline/onlinemobile/MusicServices/LOML/Pages/LOML.aspx )

I think this is (_ cheaper but_ ) similar to the commercial license of GEMA for an e-shop that includes streaming music samples .

License Guide:
http://www.prsformusic.com/users/broadcastandonline/onlinemobile/MusicServices/LOML/Documents/LOML-Guide-2016.pdf


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## nikolas (Jan 31, 2016)

Thanks Gerd (once more).

The license (in PRS) appears to be for streaming, or downloadable music *only*. There's no mention for the actual sale of CDs. 

I am researching for more, but in the meantime, I can't help but wonder, if the LOML license (in PRS) is a 'substitute' for the mechanical license, already paid when creating the CD. hmm... :-/ 

God SO complicated!


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## Gerd Kaeding (Jan 31, 2016)

nikolas said:


> The license (in PRS) appears to be for streaming, or downloadable music *only*. There's no mention for the actual sale of CDs.
> 
> I am researching for more, but in the meantime, I can't help but wonder, if the LOML license (in PRS) is a 'substitute' for the mechanical license, already paid when creating the CD. hmm... :-/




With both PRO's , GEMA and PRS , we are talking about having_ music samples _on a website that can be considered as a commercial website , because it wants to sell the music.

The LOML license that PRS offers includes
1. "_The right to communicate music to the general public over the internet or mobile devices_" of 30sec music samples.

2. "The right to make digital copies of music tracks"

So this license is about having music samples on a (commercial) website.
Similar to how GEMA handles this.


If you sell physical CD's in this e-shop the mechanical license for that is a seperate license that was already paid when the CD was manufactured .

If you are only selling non-physical CD's through your e-shop:
http://www.prsformusic.com/creators/memberresources/mcpsroyalties/mcpsroyaltysources/onlineandmobile/jol/pages/jol.aspx


GEMA controls both performing and mechanical rights , therefore their license model includes both.

With PRS and MCPS I'm not sure how this is handled for the download/streaming market.


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## lpuser (Feb 3, 2016)

Gerd Kaeding said:


> to my knowledge this is not quite true (anymore)... . Please read my post below.



Hi Gerd,

thanks for your input on the issue. The situation can be a bit complex and confusing at times, which is why I have suggested Nikolas to contact GEMA directly. In my opinion, running into trouble with them can be quite challenging.

kind regards
Tom


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