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Sep 3, 2009
Interesting Psak from Rav Elyashiv: State Law and Halacha
Both Rav Elyashiv and Rav Ovadiah Yosef recently paskened that the owners of simcha halls must pay royalties to the artists of music played in the hall.
INN reports that until now they have refused to pay because there has been no clear psak saying they are required to by halacha.
Well, now there is.
Rav Elyashiv said the owner is obligated to pay because "the owner received a license to open the hall, he accepts upon himself the responsibility of everything that the law requires of him. If the law requires him to pay the royalty fees, he is obligated to. If he does not pay what he is obligated to, his license to operate is not a license."
Rav Ovadiah Yosef gave a similar answer. Rav Ovadiah said that he is obligated to pay because of dina d'malchusa dina. "Because the State of Israel has laws that obligate everyone to pay, whoever does not has stolen. Specifically hall owners who are frum have a mitzva to pay and not cause a chillul hashem.
Interesting to note that it seems from this psak (assuming the article is correct) that there is no actual halachic obligation to pay an artist royalties for using his music. The reasoning supplied by both Rav Elyashiv and Rav Yosef is external to the direct obligation and relies only on the law requiring it. That seems to mean, without the law, the halacha would not require you to pay royalties for such usage.
Another interesting thing to note is that it seems from the psak that all laws of a country take on halachic status. Perhaps this is only if they do not go against a halacha. That means paying taxes honestly is halachically required, as well as crossing the street at a crosswalk, as well as any mundane, or not mundane, law in the law books.
INN reports that until now they have refused to pay because there has been no clear psak saying they are required to by halacha.
Well, now there is.
Rav Elyashiv said the owner is obligated to pay because "the owner received a license to open the hall, he accepts upon himself the responsibility of everything that the law requires of him. If the law requires him to pay the royalty fees, he is obligated to. If he does not pay what he is obligated to, his license to operate is not a license."
Rav Ovadiah Yosef gave a similar answer. Rav Ovadiah said that he is obligated to pay because of dina d'malchusa dina. "Because the State of Israel has laws that obligate everyone to pay, whoever does not has stolen. Specifically hall owners who are frum have a mitzva to pay and not cause a chillul hashem.
Interesting to note that it seems from this psak (assuming the article is correct) that there is no actual halachic obligation to pay an artist royalties for using his music. The reasoning supplied by both Rav Elyashiv and Rav Yosef is external to the direct obligation and relies only on the law requiring it. That seems to mean, without the law, the halacha would not require you to pay royalties for such usage.
Another interesting thing to note is that it seems from the psak that all laws of a country take on halachic status. Perhaps this is only if they do not go against a halacha. That means paying taxes honestly is halachically required, as well as crossing the street at a crosswalk, as well as any mundane, or not mundane, law in the law books.
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I heard about this on "Kol Chai" last night. What I didn't understand is why the hall is obligated to pay (from the piece I heard, there is an organization which collects from the ba'al simcha on behalf of the artists). The band is the one making use of the artists' creation, and are in fact taking money for that use. They should be the one to have to pay, and the fee collected should be built into their price.
ReplyDeleteBut what do I know. I'm just a patent attorney.
yoni - I wondered the same. I just assumed "hall owner" was a generic term and probably was supplied by "Aku'm" (the organization for protecting artists rights) when they asked the question. They probably posed the question as "hall owners who play music..."
ReplyDeleteI imagine whoever is responsible for the music would be the one obligated to pay the fee. Perhaps the hall owner has ultimate responsibility, and he passes the fee on to the musician/band/DJ/etc. who then passes it down to the guy renting the hall.
"Hall owner" is not a generic term. It's a specific term with a specific meaning. "Music provider" (or "band") is another specific term with a specific meaning, and that's the one which should be used.
ReplyDeleteNote that the gedolim didn't say that the hall owners have to pay anything. They said that the hall owners have to comply with the law. They are perfectly within their rights not paying (unless they also employ the musicians). It's the bands that should be paying.
Tachlis, I think that there's very little practical difference, since the ba'al simcha ends up paying anyway.
"That means paying taxes honestly is halachically required, as well as crossing the street at a crosswalk, as well as any mundane, or not mundane, law in the law books."
ReplyDeleteI believe that that is generally R. Elyashiv's approach at the very least regarding dinei mamonos. There may be other poskim who take a more minimalist approach to dina demalchusa. There is a famous ran who says that in malchus yisrael there is no dina demalchusa dina, but the shu"a doesn't pasken that way. I think the ran only comes into play in beis din where someone could say "kim li".
How did you understand dina demalchusa?
I'm not about to lay the situation at the feet of Rav Elyashiv and Rav Yosef but....
ReplyDelete"...Specifically hall owners who are frum have a mitzva to pay and not cause a chillul hashem."
Not paying music royalties is a chillul hashem, but what's happening in Meah Shearim isn't?
Ely - touche..
ReplyDeleteDina Demalchusa is only by dinei mammonos according to most.
ReplyDeleteIf anyone is interested I have a fairly complete set of mkorot on the differing opinions on dina dmalchuta (it fascinates me that no one until shmuel said it and we have no clear idea of the source - historical analysis of the shitot and when they were said vs. political theories of the times is also interesting - but then again it''s just for entertainment not for psak analysis :-))
ReplyDeleteKT&ST
Joel Rich
Yoni - Don't worry, I won't tell anyone, but I must say, I'm quite surprised at your comments.
ReplyDeleteSection 49 of the Israeli Copyright Act (2007) explicitly obligates the hall in such a situation.
Case closed.