Transcript Music Business Handbook and Career Guide

Part 2: Songwriting, Publishing, Copyright, and
Licensing
Chapter 6
Start Thinking. . .
A composer is commissioned to write a piece of
music for a film. Who owns the copyright—the
composer or the film producers?
2. A church choir performs a nondramatic musical
work during a Sunday service. Are they infringing
copyright?
3. A CD store plays the latest album over the store’s
sound system. Are they infringing copyright?
1.
Chapter Goals
 Acquire a clear understanding of copyright terminology.
 Learn which authors’ and composers’ rights are protected
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under the copyright statute.
Gain an understanding of what is meant by “fair use” of
copyrights.
Learn the copyrighting process and what is required in
respect to copyright “formalities.”
Understand the “work made for hire” doctrine and how it
works in the marketplace.
Discover how copyrights can be transferred, assigned,
recaptured, and terminated.
Background
 Author of work may reap fruits for limited period
 First U.S. copyright law passed in 1790
 Current copyright revision enacted in 1976
 International copyright not automatic
 Universal Copyright Convention 1955
 Berne Convention 1989
 Goal of Congress: seek balance of interests between
copyright owners and users
 Ultimate authority in copyright law = U.S. Constitution
Essential Provisions
The 1976 statute preempts nearly all other copyright
laws—both statutory and common law
2. The duration of copyright has been lengthened over
the years: generally, life of author + 70 years
3. Performance royalties:
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sound recordings
digital transmission
musical works
4. Public broadcasters, cable systems, jukebox
operators , schools, colleges to pay for use of
copyrighted music
Essential Provisions
5. Congress codified the principles as to what
constitutes the “fair use defense” to otherwise
infringing activity
6. Policies and rates of music use licenses were to be
periodically reexamined
7. Some formal procedures, such as copyright notice
and renewal, were treated more permissively, and
others were eliminated
Key Terms
 audio visual works
 best edition
 collective work
 compilation
 copies
 copyright owner (proprietor)
 created
 derivative work
 device, machine, process
Key Terms
 digital phonorecord delivery
 display
 establishment
 fixed
 food service or drinking establishment
 perform
 phonorecords
 pseudonymous work
 publication
Key Terms
 publically
1. place open to the public
2. transmit or otherwise communicate to the public
 registration
 sound recordings
 transfer of copyright ownership
 transmission program
 transmit
 work made for hire
Coverage
 Key principle of copyright protection:
 not extend to ideas
 only expression of ideas
 allows normal development of musical forms
 Protection granted to original works of authorship
 Protection also for lawful compilations and derivative
works
 but not to preexisting material
 No copyright on publications by the U.S. government
Exclusive Rights
 The owner’s bundle of rights includes these rights:
1. to reproduce the copyrighted work in copies or
phonorecords
2. to prepare derivative works based upon the
copyrighted work
3. to distribute copies or phonorecords of the
copyrighted work to the public
4. to perform the copyrighted work publicly
5. to display the copyrighted work publicly
6. to perform the copyrighted work publicly by means of
a digital audio transmission
Fair Use of Copyrighted Material
 Copyright owners versus legitimate nonprofit entities
 Since 19th century certain uses are fair within reason:
 criticism, comment, news reporting, teaching,
scholarship, or research
 Four criteria incorporated in new law:
1. the purpose or character of the use
2. the nature of the copyrighted work
3. the amount and substantiality of the portion used
4. the effect of the use on the potential market for or
value of the copyrighted work
Fair Use of Copyrighted Material
 First Amendment versus fair use doctrine
 conflict with dissemination of information
 expression of ideas allows free speech to flourish
 Certain performances are not considered
infringements
Copyright Ownership
 Multiple authors
Composers’ Share (50%)
Lyricists’ Share (50%)
Example 1. One composer and one lyricist, sharing equally
One composer: owns 50%
One lyricist: owns 50%
Example 2. Two composers splitting their share equally, three lyricists dividing their
share unequally
First composer: owns 25%
First lyricist: owns 25%
Second composer: owns 25%
Second lyricist: owns 15%
Third lyricist: owns 10%
Copyright Ownership
 Ownership limitation
 not in material object
 Collective works
 separate contributions versus collective work
 Film music
 synchronization license
 blanket copyright
Transfer or Assignment
 Any or all exclusive rights may be transferred
 Recordation of transfer
 written agreement filed with Copyright Office
 Termination or recapture
 excludes work made for hire
 writers and publishers may negotiate shorter term
Work Made for Hire
 Employer = author = owner of copyright
 Section 101 conditions:
1. work prepared by employee
2. work specifically ordered or commissioned
 Disputes center on language of first condition
Musical Arrangements
 Arrangements = derivative works
 permission must be obtained from copyright owner
 mechanical license allows minor changes
 Arranger’s rights
 one-time fee based on AFM scale
 arrangers receive no rights, royalties or income
 Public Domain
 arranger may receive half mechanical royalties
 payment for performance and printed music sales
Sound Recordings
 Musical work different than sound recording
 recording company = owner of sound recording
 publishing company = owner of musical work
 Owner of sound recording has exclusive right:
1. to duplicate the sound recording in reproduction
2. to prepare derivative works
3. to distribute phonorecords
4. to perform by digital audio transmission
Sound Recordings
 Performance rights exclusion
 Far less performance rights income compared to many
countries
 The Digital Performance Right In Sound Recording Act
of 1995
 Imitation exclusion
 imitations that mimic original recording permitted
 marketing restrictions
Compulsory Mechanical License
 After first recording of nondramatic music
 licensing to others compulsory
 fixed statutory royalty
 Special conditions:
 transcriptions excluded
 pirates and counterfeiters excluded
 only minor changes allowed
 copyright proprietor must be given notice of intent
 Compulsory license bypass
Royalty Payments (Section 115[C])
 Royalty rates set by statute
 Owner must be identified in Copyright Office records
 payment for phonorecords made and distributed
 “distributed” ambiguity
 not for returns
 payment for giveaways
Duration of Copyright
 Before 1978:
 56 years
 Under Copyright Act:
 50 years after author’s
death
 After Sonny Bono Copyright
Term Extension Act (1998):
 70 years after author’s
death
Duration of Copyright
 Subsisting copyrights in their first term on January 1,
1978 (Section 304)
 Renewal registration
 Subsisting copyrights in their renewal term
 After 75 years
 After January 1, 1978
 Works in the trunk (Section 303)
Formalities
 Formalities = actions a claimant must take to validate
claim to copyright
 Notice on printed music
 Notice on phonorecords
 Notice errors or omissions
 Deposit (Section 407)
 Registration (Section 408)
 Fees (Section 708)
 Copyright Royalty Board
Infringement, Remedy
 Copyright infringement assessment
 Remedies:
1. injunction
2. impoundment
3. destruction
4. damages
 If copyright not registered before infringement:
 no statutory damages
 no attorney fees
Record Counterfeiting, Penalties
 Piracy and Counterfeit Act of 1982
 piracy and counterfeiting a felony
 maximum penalty of a $250,000 fine and jail terms
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180-day period
at least 10 copies or phonorecords
or one or more copyrighted works with a retail value of more
than $2,500.
Changing Laws
 Two economic coalitions: creators and users
 First sale doctrine
 The Audio Home Recording Act of 1992
 The Digital Performance Right in Sound Recording
Act of 1995
 The Digital Millennium Copyright Act of 1998
Rights in Names and Trademarks
 Not covered under copyright law in U.S.
 U.S. Patent and Trademark Office
 Selection of a name
 research to avoid duplication and confusion
 Rights in a name
 performing groups should draw up written agreement
For Further Thought. . .
 What is the key principle of copyright protection, and
how does this foster musical creativity and growth?
 Discuss which sections or implications of copyright
law affect the following groups of people:
 authors
 publishers
 schools
 authors working under work-for-hire agreements
 lyricists