Music Business Handbook and Career Guide
Part 2: Songwriting, Publishing, Copyright, and Licensing
Music CopyrightChapter 6
Start Thinking. . . 1. 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?
Chapter GoalsAcquire a clear understanding of copyright
terminology.Learn which authors’ and composers’ rights are
protected 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.
BackgroundAuthor of work may reap fruits for limited
periodFirst U.S. copyright law passed in 1790Current copyright revision enacted in 1976International copyright not automatic
Universal Copyright Convention 1955Berne Convention 1989
Goal of Congress: seek balance of interests between copyright owners and users
Ultimate authority in copyright law = U.S. Constitution
Essential Provisions1. The 1976 statute preempts nearly all other
copyright laws—both statutory and common law2. The duration of copyright has been lengthened
over the years: generally, life of author + 70 years3. Performance royalties:
sound recordings digital transmission musical works
4. Public broadcasters, cable systems, jukebox operators , schools, colleges to pay for use of copyrighted music
Essential Provisions5. 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 Termsaudio visual worksbest editioncollective workcompilationcopiescopyright owner (proprietor)createdderivative workdevice, machine, process
Key Termsdigital phonorecord deliverydisplayestablishmentfixedfood service or drinking establishmentperformphonorecordspseudonymous workpublication
Key Termspublically
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
CoverageKey principle of copyright protection:
not extend to ideasonly expression of ideasallows normal development of musical forms
Protection granted to original works of authorship
Protection also for lawful compilations and derivative worksbut not to preexisting material
No copyright on publications by the U.S. government
Exclusive RightsThe owner’s bundle of rights includes these
rights:1. to reproduce the copyrighted work in copies or
phonorecords2. to prepare derivative works based upon the
copyrighted work3. to distribute copies or phonorecords of the
copyrighted work to the public 4. to perform the copyrighted work publicly5. to display the copyrighted work publicly6. to perform the copyrighted work publicly by
means of a digital audio transmission
Fair Use of Copyrighted MaterialCopyright owners versus legitimate nonprofit
entitiesSince 19th century certain uses are fair within
reason:criticism, comment, news reporting, teaching,
scholarship, or researchFour criteria incorporated in new law:
1. the purpose or character of the use2. the nature of the copyrighted work3. the amount and substantiality of the portion used4. the effect of the use on the potential market for or
value of the copyrighted work
Fair Use of Copyrighted MaterialFirst Amendment versus fair use doctrine
conflict with dissemination of informationexpression of ideas allows free speech to
flourishCertain performances are not considered
infringements
Copyright Ownership
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%
Multiple authors
Copyright OwnershipOwnership limitation
not in material objectCollective works
separate contributions versus collective workFilm music
synchronization licenseblanket copyright
Transfer or AssignmentAny or all exclusive rights may be transferredRecordation of transfer
written agreement filed with Copyright OfficeTermination or recapture
excludes work made for hirewriters and publishers may negotiate shorter
term
Work Made for HireEmployer = author = owner of copyrightSection 101 conditions:
1. work prepared by employee2. work specifically ordered or commissioned
Disputes center on language of first condition
Musical ArrangementsArrangements = derivative works
permission must be obtained from copyright owner
mechanical license allows minor changesArranger’s rights
one-time fee based on AFM scalearrangers receive no rights, royalties or
incomePublic Domain
arranger may receive half mechanical royaltiespayment for performance and printed music
sales
Sound RecordingsMusical work different than sound recording
recording company = owner of sound recording
publishing company = owner of musical workOwner of sound recording has exclusive
right:1.to duplicate the sound recording in
reproduction2.to prepare derivative works3.to distribute phonorecords 4.to perform by digital audio transmission
Sound RecordingsPerformance rights exclusion
Far less performance rights income compared to many countries
The Digital Performance Right In Sound Recording Act of 1995
Imitation exclusionimitations that mimic original recording
permittedmarketing restrictions
Compulsory Mechanical LicenseAfter first recording of nondramatic music
licensing to others compulsoryfixed statutory royalty
Special conditions:transcriptions excludedpirates and counterfeiters excludedonly minor changes allowedcopyright proprietor must be given notice of
intentCompulsory license bypass
Royalty Payments (Section 115[C])Royalty rates set by statuteOwner must be identified in Copyright Office
recordspayment for phonorecords made and
distributed“distributed” ambiguitynot for returnspayment for giveaways
Duration of CopyrightBefore 1978:
56 yearsUnder Copyright Act:
50 years after author’s death
After Sonny Bono Copyright Term Extension Act (1998): 70 years after
author’s death
Duration of CopyrightSubsisting copyrights in their first term on
January 1, 1978 (Section 304)Renewal registrationSubsisting copyrights in their renewal termAfter 75 yearsAfter January 1, 1978Works in the trunk (Section 303)
FormalitiesFormalities = actions a claimant must take to
validate claim to copyrightNotice on printed musicNotice on phonorecordsNotice errors or omissionsDeposit (Section 407)Registration (Section 408)Fees (Section 708)Copyright Royalty Board
Infringement, RemedyCopyright infringement assessmentRemedies:
1. injunction2. impoundment3. destruction4. damages
If copyright not registered before infringement: no statutory damages no attorney fees
Record Counterfeiting, PenaltiesPiracy and Counterfeit Act of 1982
piracy and counterfeiting a felonymaximum penalty of a $250,000 fine and jail
terms 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 LawsTwo economic coalitions: creators and usersFirst sale doctrineThe Audio Home Recording Act of 1992 The Digital Performance Right in Sound
Recording Act of 1995The Digital Millennium Copyright Act of 1998
Rights in Names and TrademarksNot covered under copyright law in U.S.U.S. Patent and Trademark OfficeSelection of a name
research to avoid duplication and confusionRights 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:authorspublishersschoolsauthors working under work-for-hire
agreementslyricists
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