Protected: Music Copyrights
Music Copyrights
“Always know your intention.”
-Songwriters, recording artists, music producers, performers, and almost all others in the music industry care about copyright. As much as anything else, it provides the statutory structure that enables creative in ALL aspects of the business to put food on their table, sometimes accounting to a generous banquet.
-Copyright is a form of protection provided by the laws of the United States for intellectual property, including works of literature, songs, recordings, art and other forms of creativity.
-Copyright literally means “the right to copy.” The term has come to mean that body of exclusive rights granted by law to authors for protection of their work.
-Article I, Section 8 of the Constitution gives Congress the power to enact laws establishing a system of copyright in the United States, and Congress enacted the first U.S. copyright law in 1790.
-Comprehensive revisions were enacted in 1831, 1870, and 1909 and the CURRENT Copyright Act, enacted by Congress in 1976, became generally effective on January 1, 1978.
-While no work can be automatically copyrighted worldwide, two international treaties have brought cooperation from countries on copyright matters.
-The United States became a party to the Universal Copyright Convention in 1955 and to the Berne Convention in 1989, both of which have greatly enhanced the protection of its copyrights internationally
(See Chapter 31 for more info on international copyright).
7 Essential Provisions of 1976 Act:
- The statute preempts (prevents) nearly all other copyright laws-both statutory and common law (A body of law, written or unwritten in England and that derives its authority from tradition or from judgments and decrees of the courts recognizing such traditions).
-Therefore, only the federal Copyright Act can provide protection for most types of works. One notable exception is pre-1972 sound recordings, which are not protected by the Copyright Act. This class of recordings can only be protected under state law.
- Duration of Copyright: The duration of copyright has been lengthened over the years and now conforms closely to practices prevailing throughout most of the rest of the world: generally life of the author plus 70 years for works created after January 1, 1978.
–Sonny Bono Copyright Term Extension Act: Added 20 years to the term of protection of works protected by copyright (had been life of author plus 50 years).
–Joint Works: Life of last surviving author + 70 years.
–Work Made For Hire: 95 years from 1st publication date OR 120 years from year of creation (whichever expires FIRST).
- There is no exclusive right for the public performance of sound recordings. (see article)
-That is why under the 1976 act, no performance royalties were paid for use of sound recordings to copyright owners of sound recordings.
-However, the act was amended in the 1990’s to provide a digital transmission right for sound recordings. This addition to the act provides that the copyright owners of sound recordings are paid for performances by digital transmission such as on satellite radio or webcast.
-(The act does provide an exclusive public performance right for musical works, also known as songs, and any performance of a song-live, on broadcast radio and TV, and venues from churches to arenas-earns performance royalties).
- Public broadcasters, cable systems, and jukebox operators were compelled to begin to pay for the use of copyrighted music, as were schools and colleges.
-As a by-product of accession to the Berne Convention in 1989, the law was later amended to provide for negotiated licenses between jukebox operators and music copyright owners (through performing rights organizations) rather than statutorily mandated compulsory licenses (which means by law).
- Certain uses that would otherwise be copyright infringement are excused as “fair use” under the act, which codified the principles previously enunciated in case law.
-Four distinct factors are considered by the courts in determining the applicability of the fair use defense, and courts may also look to other factors as appropriate to a particular case.
Fair Use of Copyrighted Material
-Fair Use Criteria:
(Page 41: commercial or nonprofit edu. purposes, religious, admission vs. no admission)
- The purpose or character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.
- The nature of copyrighted work.
- The amount and substantiality of the portion used in relation to the copyrighted work as a whole.
- The effect of the use on the potential market for or value of the copyrighted work.
–The Fair Use Doctrine: a legal defense to a copyright infringement claim, essentially allows minimal reproduction of a copyrighted material for purposes such as scholarship, research and news reporting.
-Performances that are not infringements: educational setting, religious services.
-ALSO: Performances w/o commercial advantage (performers/promoters/organizers are unpaid + no admission charge/private financial gain).
- Congress identified/codified principles of “fair use defense” to infringing activity.
- Policies & rates of music use licenses were to be periodically reexamined (streaming issues).
- Some formal procedures, such as copyright notice & renewal, were treated more permissively (some eliminated).
Coverage
-A work is “created” when it is fixed in a copy or phonorecord for the first time.
-It is important to note that copyright protection does not extend to ideas themselves, but only to the expression of those ideas. For example, no one can copyright the idea of “reggae music,” but a particular expression of that genre (say, a reggae song by Ziggy Marley) may be protected.
-The fact that no one can copyright an idea itself (the beat, the general concepts defining the genre, etc.) allows the normal development of musical forms, which always includes elements borrowed from other sources. It is the unauthorized exploitation of a particular artist’s expression of an idea that is prohibited.
-You can’t copyright a title. (“Because You Loved Me”)
-Copyright protection is granted to original works of authorship. As noted above, such works must be “fixed in any tangible medium of expression, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine of device.
Works of Authorship include the following categories:
-Literary Works
-Musical works, including any accompanying words
-Dramatic works, including any accompanying music
-Pantomimes and chorographical works
-Pictorial, graphic, and sculptural works
-Motion pictures and other audiovisual works
-Sound recordings
-Architectural works
-Copyright does not extend to publications of the U.S. government. An individual may reproduce or quote from such publications without concern for copyright infringement.
Exclusive Rights
-Section 106 of the Copyright Act specifies six distinct exclusive rights vested in the author of a protected work. Subject to certain limitations, the act states that the owner of copyright has the exclusive right to do and to authorize any of the following:
- Reproduce the copyrighted work in copies or phonorecords. (A phonorecords is any physical object serving as a delivery medium for recorded music, such as a phonograph record, CD, or prerecorded tape).
- Prepare Derivative Works based upon the copyrighted work.
(Derivative Work = existing work that’s recast/transformed/adapted, a sonata from an opera)
- Distribute copies/phonorecords of the work to the public by sale or other transfer of ownership or by rental, lease or lending.
- Perform the work publicly.
- Display the copyrighted work publicly.
- Perform the copyrighted work publicly, by means of a digital audio transmission.
Copyright Ownership
-Where there are multiple authors, ownership of the copyright is shared. In the popular song field, it is customary for the composer(s) of the music to share ownership equally with the lyricist(s). Unless there is a written agreement to the contrary, coauthors-whether composers or lyricists-will share equally in the ownership of a copyright. (50/50, 33.3/33.3/33.3, 25/25/25/25)
-Multiple authors may, however, set up, through a written agreement, disproportionate shares of ownership in a work in which they collaborated. (Split sheet, importance)
Ownership Limitation
-Ownership of copyright, or any of the exclusive rights under a copyright, is distinct from ownership of any material object in which the work may be embodied, such as sheet music, discs, or tapes.
-Transfer of ownership of any such material object does not convey any rights to the embodied copyrighted work. For example, the ownership of the physical master tapes on which a song is recorded does not carry with it any ownership of copyright in the underlying song.
Collective Works
-Copyright in each separate contribution to a collective work (such as an album of songs) is distinct from copyright in the collective work as a whole and vests initially in the author of the contribution.
-In the absence of an express transfer of the copyrights, the owner of the copyright in the collective work is presumed to have acquired only the privilege of reproducing and distributing the contribution as part of that particular collective work, any revision of that collective work, and any later collective work in the same series. (Every copyright is separate).
Film Music
-Copyright in music, and accompanying words, written for theatrical/films and TV movies is often covered by the overriding copyright in the movie itself as an audiovisual work: however; additional copyrights may preexist for music that a film producer licenses for inclusion in this production.
In this situation, the two copyrights coexist. The film producer would be required to obtain a synchronization license for use of the preexisting copyrighted music. But even in this situation, the complete audiovisual work–the movie itself-could still be protected by a blanket copyright covering its particular combination of component parts.
Transfer or Assignment
-Although all six exclusive rights of authorship vest initially in the author(s) of a work, the law states that any or all of these rights may be transferred or assigned to other persons. As a matter of fact, most original copyright owners find it necessary to transfer or assign some or all of their rights to generate income from their properties.
-Some writers own their own publishing companies and record labels, but the great majority assign publishing and recording rights to others, usually through the granting of exclusive licenses (music licensing). Transfers must be in writing to be effective, but nonexclusive licenses may be oral or even implied from conduct.
-The law even permits subdivisions of individual rights. This often occurs with publishing rights where authors “split the publishing.”
Recordation of Transfer
-When copyright owners assign or grant an exclusive license for any of their copyrights, the action does not become valid until the parties (or their agents) execute a written agreement confirming the transfer. This written instrument may then be filed with the Copyright Office in accordance with procedures set by that office, although such filing in necessary for the transfer to be effective.
-Filers must also pay the specified fee (the latest forms and fees are available on the Copyright Office website, www.copyright.gov). Following these actions, the Copyright Office issues a Certificate of Recordation.
-This recordation serves to provide all persons with what lawyers call “constructive notice” of the facts stated in the Certificate of Recordation. Occasionally, a situation arises where two transfers are in conflict. In such instances, the first transfer to be properly executed prevails.
-A recordation is not necessary for transfer to be effective.
Termination or Recapture
-Upon effective date of termination, all rights covered by the terminated grant revert back to author.
-Writers & Pubs: can negotiate a shorter term (typically 1-5 years) to protect writer if Publisher doesn’t effectively “work” the copyrighted material.
Work Made For Hire
-The term work made for hire has special meaning under copyright law and is of great significance to composers, publishers and movie producers. Whenever a composer is engaged on a work-made-for hire basis, the EMPLOYER is considered under the law as the AUTHOR of any resulting creative work. And the “author,” under copyright law, is the owner of the works.
Types:
- Work prepared by an employee w/in scope of employment (like writing for a music studio).
- Work specifically ordered or commissioned for use in motion picture or other audiovisual work.
Musical Arrangements
-Arrangers must obtain permission of the copyright owner before scoring their own version.
-When Publisher grants mechanical license to Producer to create new arrangement, Publisher waives right to raise any objection to it (even if very different from original).
Arrangers’ Rights
-The role of the music arranger is often as a creative that of the original composer of the song.
-Arrangers receive no rights of copyright ownership & receive no royalties from record sales (work for hire basis: only get 1-time fee based on American Federation of Musicians scale for “orchestration”), nor do they share in income made by Composers/Pubs from licensing of performances of their arrangements
-HOWEVER: Public Domain: When arrangers create original chart of work in the Public Domain, the arranger’s publisher splits mechanical royalties w/arranger (also gets performance royalties & royalties from Publisher’s sale of printed editions).
-In Public Domain, PRO’s customarily pay reduced royalties based on works in the public domain.
–Public Domain criteria: All rights have expired, or the authors have explicitly put a work into the public domain or there never were copyrights. (Also, anything pub before 1922)
Performance Right Exclusion
-The 1976 law specifically excluded performance rights in sound recordings, and owners of sound recordings still do not enjoy the level of protection common in many other parts of the world, including more than 50 Western countries.
–1995, The Digital Performance Right In Sound Recording Act (DPRA)
-This allowed record companies to collect a royalty on digital performances of the sound recording on TV, Internet, & satellite radio.
-Owners of sound recordings didn’t get performance royalties for years…long-standing battle between intellectual property community & users of creative works (mainly broadcasters).
–Imitation Exclusion
-Imitations that mimic the original recording are legally permissible, but it cannot simply be a recorded copy of the original.
-It is not legal to market the mimicked recordings as if they feature the original artists or in any way that might confuse the public about who performed the song.
Compulsory Mechanical License
-After 1st recording of Copyright work is released on record to public, owner is compelled by law to license to any other person to produce & distribute recordings (this is in exchange for a fixed statutory royalty (set by law).
Royalty Payments
–After permitting the initial recording of a song, publishers are limited as a practical matter by the statute as to what royalty rate they may charge record makers.
-Rates are adjusted periodically and for physical formats, the rate is the larger of 9.1 cents or 1.75 cents per minute.
-Manufacturer isn’t liable for royalty payments on records returned to it that have not been sold.
-“Giveaways” such as free goods and promotional copies do, however trigger royalty payments.
-Definition doesn’t require a sale.
-To be entitled to receive royalty payments under a compulsory license, the copyright owner must be identified in the registration or other public records of the Copyright Office.
Duration of Copyright
-Prior to 1976 act, copyright life could only last a max of 56 years, followed by an optional 28-year renewal term.
-Under section 302 of the Copyright Act, this was changed so that the copyright in a work created on or after January 1, 1978, was to last for 50 years from the author’s death, but that still did not settle the matter.
-In 1998, Sony Bono Copyright Term Extension Act added 20 years to the term. A song that had previously been protected for the life of the author plus 50 years was protected after 1998 for the life of the author plus 70 years.
-If two authors, they have copyright of the life of the last surviving author and 70 years after such surviving author’s death.
-Works for hire receive even longer protections (95 years from publication or 120 years from creation) (p.51, table 4.1).
Formalities
-The term formalities is used around the world in reference to the specific actions a claimant must take to validate claim to copyright. These formalities include notice of copyright, deposit of copies, and registration of claim to copyright.
-Formalities essentially became optional after the US joined the Berne Convention (International agreement governing Copyright) when they introduced the concept that a Copyright exists the moment a work is “fixed,” rather than requiring registration.
-After March 1,1989 (the date when the US joined the Berne Convention), these formalities for U.S. works became almost entirely optional. But to be on the safe side, claimants should put a proper notice on copyrighted material and register works.
Notice on Printed Music
-The term notice of copyrights refers to the public display of information concerning the date the work was published and who registered the claim. On printed editions, the law stipulates the following:
- Notice may be placed on all publically distributed copies. The notice imprinted should be the symbol © or the word Copyright or the abbreviation Copr. and the year of the first publication of that work.
-The type of notice most often seen is this: © 2018 Michael Guerriero
-Although not required by the Copyright Act, the language “All Rights Reserved” should also accompany the statutory notice to provide additional protection in some foreign countries under the Pan-American Convention.
- In the case of compilations or derivative works incorporating previously published material, the year of the first publication of the compilation or derivative work is sufficient.
–Derivative work is a work based on one or more preexisting works, such as a translation, musical arrangement, dramatization, motion picture, sound recording or in any other form in which a work may be recast, transformed or adapted. (Compilations, new version or arrangement of song)
- The notice must also include the name of the copyright owner. A recognizable abbreviation of the owner’s name may be used.
- The position of the notice shall be affixed to the copies so as to give reasonable notice of the claim to copyright.
Notice on Phonorecords
-Whenever a sound recording protected under the 1976 law is published in the United States or elsewhere by authority of the copyright owner, a notice may be placed on all publically distributed phonorecords of the sound recording. It is still prudent to do this.
The form of the notice consists of three elements:
- The symbol ℗
- The year of the first publication of the sound recording, AND
- The name of the owner of the copyright in the sound recording.
-Example: ℗ 2018 Nassau Records
Deposit
-Copyright owner must deposit 2 complete copies of the “the best edition” (the Published edition) of the work within 3 months after the date of publication.
Registration
-Although deposits and registrations are referred to in the law as “separate formalities” and a deposit can be made independently of registration, it is important to note that registration of a claim to copyright must be accompanied by the deposit specified on the application form.
–Registration is strongly advised because under certain conditions, an author’s work left unregistered lacks certain advantages the work would otherwise enjoy. More important a work must be registered in order for the statutory damage provision of the Copyright Act to be triggered.
-A work may be registered at any time during the term of the copyright, whether it is published or unpublished. The registration may generally be made by the author as copyright owner or the publisher, as exclusive
licensee.
-The acceptance of sound recordings, not just sheet music in claims to copyright the underlying music was a significant advance over the 1909 law. In pop music, many songwriters lack the ability to chart out the song.
Fees
-There are fees associated with the registration of claims (www.loc.gov).
Copyright Royalty Board
-3 judges determine rates and terms for copyright statutory licenses and make determinations on distribution of statutory license (not negotiable between copyright owner and user) royalties collected by the United States Copyright Office of the Library of Congress.
-Royalties within its jurisdiction include:
- Cable and satellite transmission
- Digital performance and phonorecords delivery
- Mechanicals
- Educational broadcasting
Infringement & Remedy
-Copyright infringement is widespread, most of it going unnoticed and unpunished. Where infringement is of little or no financial consequence, courts may limit assessment of statutory damages to a nominal amount.
-Where a library or school is involved with an infringement arising out of a lack of full understanding of the law, sometimes no damages are awarded.
Remedies
- Injunction (authoritative order) is a temporary or financial injunction can be sought from any court having jurisdiction to prevent or restrain infringement of copyright.
- Impoundment: Court can seize printed copies, phonorecords (CD’s), and packaging equipment.
- Destruction: Court can have materials destroyed.
- Damages
- The infringer is liable for actual damages suffered by the copyright owner and profits gained by the infringer, as well as the attorneys’ fees.
-Neither statutory damages nor attorneys’ fees can be awarded if the Copyright was not registered before the infringement began.
–This is the most important reason to register a copyright in a work before making it available to potential infringers, whether within the music industry or the public at large.
Record Counterfeiting & Penalties
-Strong penalties for counterfeit use of the © symbol on phonorecords.
Piracy and Counterfeit Act of 1982
-Made both piracy & counterfeiting a felony (fine & jail terms).
The Audio Home Recording Act of 1992 (AHRA)
-In 1992, Congress enacted the Audio Home Recording Act, which amended the 1976 Copyright Act by allowing home audiotaping and by implementing a royalty record payment system and a serial copy management system for digital audio recordings.
-Home taping is no longer an infringement of copyright.
-The first government-imposed royalties on devices and media, a portion of which is paid to the record industry directly.
The Digital Millennium Copyright Act of 1998 (DMCA)
-“Webcasters” (i.e. Internet radio stations) now pay licensing fees to record companies.
-Heightens penalties for Copyright infringement on the Internet.
Rights in Names & Trademarks
-Company names and professional names of performers cannot be protected under copyright law, but are covered under a broader branch of law concerning unfair competition.
-In some states, it is a criminal offense to infringe on someone else’s name or mark.
Selection of a Name
-A new performing group should select its professional name with care to avoid duplication and possible confusion with another group using the same, or similar, name.
-Because most performing groups will have to register their professional names as “fictitious,” they may discover at their own county and state government levels if any other group in that geographic area has already registered the same name or a similar one.
-Avoid duplication & possible confusion w/ another group using similar name (ask PROs or artists’ unions).
-Libraries often have publications such as the Index to the Trademark Register that can be consulted, as can the USPTO website, www.uspto.org.
-Attorneys can provide the names of firms specializing in searches of this kind and can offer guidance on time restrictions for any filing that might be required under the Trademark Act.
