It is also a good idea to review the music publishing terms in the following glossary that will be used throughout the course:
http://www.keepandshare.com/doc/3081844/revised-glossary-of-music-publishing-terms-doc-august-16-2011-9-45-pm-45k?da=y
Text Reading Assignments for First and Second Classes:
MUSIC PUBLISHING- THE ROADMAP TO ROYALTIES
Chapter One (History of Music Publishing),
Songwriter Collaboration Section of chapter 4 pages 58-61
PLAIN & SIMPLE GUIDE TO MUSIC PUBLISHING
Chapter One(Overview), Two(Value of Music),
Nine (Co-writing and Co-Publishing, and 11(More on Copyright):
It is also a good idea to review the music publishing terms in the following glossary that will be used throughout the course:
http://www.keepandshare.com/doc/3081844/revised-glossary-of-music-publishing-terms-doc-august-16-2011-9-45-pm-45k?da=y
A REVIEW OF KEY COPYRIGHT CONCEPTS IN THE MUSIC INDUSTRY NEEDED FOR UNDERSTANDING OF MUSIC PUBLISHING RIGHTS:
Distinction between Master Recording and Composition
The record player above is playing the Master Recording
- Sheet music of same song is the Composition
Both are protectable by US Copyright law and can have different owners.
If a singer-songwriter composes the music and records it alone, she will own both copyrights. If she writes the song, and gives it to an artist to record, the artist or their record label will own the copyright to the master recording.
REMEMBER One Recorded Song = Two Copyrights
As we go through this course, keep in mind the difference between the copyright for a musical composition and that for the master recording of a song. A composition can only be registered for copyright once. However, there can many different recorded versions of that same composition, and each time the new master recording can be copyrighted as a new master recording of that original composition.
To get the legal right to record a song that is written by someone else, the artist must obtain a license from the writer to record the song which is called a “mechanical license”. The normal rate received by the writer currently would be 9.1 cents per copy sold, digitally or physically.
A. When does copyright protection come into being?
Copyright Law states that your copyright comes into being as soon as the subject of your copyright comes into being in a fixed manner capable of being reproduced. In other words, the creative work must be original and something tangible. Not a mere idea or unrecorded performance.
Note the difference between an original song which is performed in public but not written down.
The song which was performed only live is not in a tangible form, and no rights of copyright accrue to the author/writer unless a recording is made of it or it is written down in music notation form as sheet music.
A written version of the song could be copyrighted and so could a recording, but the mere public performance, which is not recorded in some manner, does not result in the creation of a copyrightable work under the copyright act until it is in a form that can be reproduced.
(note: What other examples can you think of that are creative works which are not fixed in a tangible medium of expression?)
B. What are the stated categories of works that can be the subject of Copyright under the law?
1. literary works(books, articles, etc)
2. dramatic works (dramatic plays, screenplays)
3. choreography (in notation or recorded form)
4. pictorial, graphic, and sculptural works
5. motion pictures and other audio visual works
6. sound recordings
7. musical compositions (original and original arrangements of songs in the public domain where copyright has expired)
C. What rights the exclusive are granted to the copyright owner by law?
1. the right to reproduce the work
2. the right to sell & distribute copies of the work to the public
3. the right to prepare derivative works based on that work
(Note, in music, this means that only the copyright owner can make changes to his work. For example, if anyone other than the copyright owner changes the lyrics to a copyrighted song, they do not acquire any rights to the new lyrics by doing so)
4. the right to perform the work publicly
5. the right to display the work publicly
D. What is the Term of Copyright Protection?
Federal law gives to the creator or author of an original composition (or master recording) which is fixed in a tangible medium of expression certain exclusive rights for the life of the author, plus 70 years from the death of the author, or last co-author if more than one. (Note; time starts to run from the date of creation of the subject matter of the copyright in tangible form, not the date that it is registered). If the composition has been transferred by the author to another party, the author can re-capture the rights to their work after 35 years by following the procedures set forth in the copyright act.
E. Who is considered the “Author” of a Musical Composition?
All the writer or writers who contributed to the finished work, no matter how many authors there might be. Until an author assigns their rights by signing a written document transferring their copyright to someone else, they retain their copyright. A copyright cannot transfer rights verbally or orally.
If a writer is paid to write or create under a written “Work for Hire” agreement, or written employment agreement, the person who paid him is considered to be the owner of his copyright. The copyright act specifically acknowledges that ownership of copyrights can be transferred from creative parties to others under a work for hire agreement in most cases.
F. What rights do Co-Authors of Compositions have under the Copyright Act?
Co-authors of compositions are considered to be equal owners of the song they have jointly written, unless they agree to a different percentage of ownership. This is best done by written agreement signed by all the authors.
Once completed, the elements of the song are merged together (i.e. lyrics and music) and cannot be controlled separately by the authors of the lyrics and music; in other words, the authors control all of the music and the lyrics together as one song to the extent of their contribution, no matter what their contribution may have been.
Co-authors often sign agreements with each other describing how the rights to use the song will be handled between them. If one author signs a license to allow the song to be used by another party, and is paid in full for that use, the person receiving that license may rely on it even if the other authors have not signed or agreed to that usage. The other authors have a right to collect their fair share of the compensation from the licensing author however.
G. Why is Copyright Law so Important to the Music Industry and Music Publishing Industry?
Without it anyone could copy, make and sell someone else’s hit record or musical composition. This happens in many foreign countries unfortunately. China and Southeast Asia countries flagrantly obtain the latest top selling records and albums from foreign artists and copy them without any payments to the foreign owners.
H. What is Copyright Registration and Why is it Important ?
Registration is the process of filling out the forms required by the U.S. Copyright Office in Washington, DC, paying the associated fees, sending in the forms and copies of the work to the U.S. Copyright Office for review and registration of your copyright with U.S. Copyright Office.
Registration is advisable but not required by Law. The benefits of Registration of Copyright are:
1. You cannot file a lawsuit for copyright infringement for use of your song by someone else without your permission without first registering your copyright.
2. You also cannot collect damages or attorney’s fees for certain acts of infringement without timely registration i.e. within 3 months of public release
I. Copyright Forms used in the Music Industry
1. The Copyright of the Musical Composition which was formerly applied for on a PA Copyright form and now applied for on a CO form.
2. The Copyright of the Master Sound Recording of the Musical Composition which was formerly applied for on a SR Copyright form and now applied for on a CO form.
Copyright Forms are available on line through Library of Congress, Washington DC. The Copyright Office uses the form “eCO” for on-line registrations, or “CO” for paper form registrations. It is currently $35 to file on line and $45 to use the paper form. Two examples of your work have to be mailed separately to the Copyright Office.
(Note, the copyright act gives the owner of a musical composition the initial right to determine whether or not to allow anyone to make a commercial recording of his composition. In other words, only the owner of that song can grant a mechanical license for it to be recorded. But once the composition is recorded commercially, the act states that anyone can re-record that composition as long as they pay the statutory mechanical license fees and do not change the fundamental nature of the song, this is called a “compulsory license”. The publisher cannot stop anyone from taking advantage of the compulsory license provisions in the copyright act as long as the song has been recorded and released commercially one time, and fees are paid as required by statute. As stated above, the new recording may not fundamentally change the composition)
J. When Should You File for Copyright Registration?
Ideal time is prior to when the work is going to be exposed to the public or no later than 3 months after commercial release;
K. Does US Copyright Protection Extend to Other Countries?
The US is a member of many copyright treaties with countries around the world. Generally speaking, these treaties give the citizens of those countries rights to enforce their copyright against infringements in any country that has signed the treaty. The most important treaty of this type is called the Berne Treaty.-
LEGAL EFFECTS OF DIGITAL SAMPLING ON MUSIC PUBLISHING
A. How Does the Copyright Law Impact Digital Sampling of Records?
1. Copyright is the basis for claims against Artists and Writers who sample recordings and musical compositions
2. “Infringement” of sound recording and underlying musical composition usually occurs if the master is sampled directly
3. If the sampled portion of the recording is re-created rather than sampled directly from a commercial recording, then the sampler would only have to worry about getting a license from the publisher of the musical composition that was used, because there was no use of the original Master recording.
4. Licenses are negotiated with owners of the copyrighted material who listen to the new song and the original song to see how much was used before quoting a fee or a rate. Usually the owners want an advance and a royalty for the usage. The use of professional ‘clearing agents’ to clear samples is helpful and often employed
B. What you are SAMPLING determines the Consent that you need.
1. Sampling the Master recording normally requires Two Consents – master and the musical compositions, unless the sampled portion of the sound recording does not include any substantive aspect of the musical composition i.e. a “shout” from James Brown or a “riff” from a Drummer
C. Who Is Responsible for clearing samples?
Legally the producer is usually responsible, but if the sample is used and is uncleared, the artist, producer, record label, and distributor can all be sued for damages.
D. Who Does the Clearance Work?
Attorneys are usually too expensive. Therefore, independent ‘Clearing Agents’ used who often charge a flat fee per clearance for their services
DMG Inc is one such agency, run by Deborah Mannis Gardener.
E. What are the Types of Quotes for Sampling of a Composition?
Usually a percentage of the publishing of the new song and an advance
F. What are the Factors Affecting Negotiations for Sample Licenses?
1. Release of Record Prior to Clearance will ensure a higher quote to settle the matter
2. The duration and content of Sample
G. WHAT IS THE IMPACT OF SAMPLING ON ARTIST PUBLISHING INCOME?
Each sample will reduce the amount of songwriting income that would otherwise be earned by the Artist-songwriter from that composition.
H. Sampling and Multi-Media Products:
Most films and television shows will not license any songs with samples in them for fear of liability.
. Clearing Sampled 'Scratches':
A ‘scratch’ is where the DJ takes a short piece of a record and adds it to a song. Technically that has material to be cleared although often it is not done.
I. Sampling on Record Re-Mixes:
This is usually not a good idea. Since no publishing rights are awarded to the remixer, any samples would reduce the publishing share of the original artist/writer, which would be objectionable.
Sometimes a major producer is asked to “re-produce” an album track that has been recorded to make it a competitive single. Does he get songwriting credit and publishing rights? Only if the original author agrees. Otherwise not.
J. Release of Records with Uncleared Samples
1. How Do People Get Caught?
The original artist may hear the song on the internet or radio, or artist fans bringing it to their attention
2. What Happens?
Depends on the sales of the record and the stature of the parties. If the sample is on a small independent label and has sold hardly any copies, not much will likely happen. If it is on a major label, or many copies are sold, a letter from a lawyer can be expected as a first step. Negotiations follow, which, if not successful, and enough money is involved, will result in the filing of a lawsuit for copyright infringement.
For a good DVD on Music Sampling see: “Copyright Criminals” (2009)
https://creativecommons.org/weblog/entry/20204
Keep in Mind the Basic Copyright issues that must be understood
- Composition must be in tangible form in order for song to be protectable by copyright law. Humming a song to your friends does not result in a copyrightable song, but singing it into a recorder will suffice.
Question:
What about an artist who ‘hummed’ all his concepts to the producer that he hired to produce the songs? When the songs are done, can the artist claim songwriter credit by law? What can the artist do if there is a dispute over who gets credit for authorship?
Text Reading Assignments for First and Second Classes:
MUSIC PUBLISHING- THE ROADMAP TO ROYALTIES
Chapter One (History of Music Publishing),
Songwriter Collaboration Section of chapter 4 pages 58-61
PLAIN & SIMPLE GUIDE TO MUSIC PUBLISHING
Chapter One(Overview), Two(Value of Music),
Nine (Co-writing and Co-Publishing, and 11(More on Copyright):
CLASS TWO
It Starts With a Song: Relationships between Co-writers
a. What is the definition of a Songwriter?
The author or writer who creates all or part of an original composition in a tangible form i.e. written down in notation or recorded in some way
b. How do songwriters compose songs?
They can hum them into a recorder, play digital synthesizers and record on a computer,, play and record the piano, or any other instrument to get the melody and then write the lyrics if the song has lyrics.
c. Who owns the composition and when does ownership begin?
The authors of the song after it has been fixed in a tangible medium
d. What about songwriter collaborations?
Collaborations in the studio: “I told him to play it that way”
Was the song already recorded?
Was the song already registered for copyright or released by another?
e. How is the songwriting credit awarded between co-writers?
Writers of the lyrics get 50% of the authorship credit
Composers of the music get 50% of the authorship credit
f. When and how does the copyright owner transfer ownership of the song?
It can only be transferred by a written agreement signed by the author
g. What is a derivative work?
A new version of an existing work that is still in copyright. For example, changing the lyrics or re-doing the song in another genre of music such as a jazz version.
h. Who controls the right to make derivative works?
The original copyright owners of the song
i. What is the definition of a Music Publisher?
Music Publishing is the owning and exploiting of musical compositions for commercial purposes. Historically speaking, a music publisher was a company that published sheet music of songs. Today, most music publishing activity is really commercially exploiting by licensing the musical compositions they control to commercial companies who exploit music for profit i.e. advertisers, record companies, internet companies, satellite and film/tv companies.
Anyone who controls the copyright to one musical composition can consider themselves to be a music publisher. Therefore any writer who owns all or part of a musical composition can be considered the music publisher of that song or part of a song. Until the writer assigns his rights to that work to another person in writing, the writer(s) will remain the publisher of that composition.
j. What is the nature of the relationship between a Songwriter and a Publisher?
Until a Songwriter transfers ownership of their song (or portion thereof) THEY ARE THE PUBLISHER of their song and can publish the song under their own company name.
As soon as the songwriter enters into a songwriter/publisher contract with another publisher (who typically takes an assignment of their copyright in exchange for an advance and a percentage of the income to be earned on the song in the future), they are now only the songwriter and their song is owned by their publisher who in turn has the responsibility for exploiting
the song and collecting income.
k. Types of Music Publishers
Small Music Publishers; Typically set up by the Songwriters themselves who own and run the company. Can be a sole proprietorship, partnership (bands often form them to control the bands’ compositions), LLC, or Corporation.
vs.
Large Professional Publishing Companies
Publishers with thousands of copyrights under their control and international representatives in various countries, either wholly owned by the Publisher, or independent sub-publishers that represent their catalogue on those countries.
l. What are the functions of a Music Publisher?
Acquire, Promote, Protect, License and Administer Copyrighted Compositions with Commercial Potential
m. How Do You Form a Music Publishing Company?
n. Roles of Music Publishers
Professional Music Publishers take on the following tasks:
Acquiring and Copyrighting of new songs from songwriters either
by buying catalogues or signing songwriters to contracts where they assign their rights to their songs to the Music Publisher
Registering Songs with performing rights organizations
Negotiation of various licenses with record companies, film companies, video/tv companies, advertising companies, video game producers, etc.
Marketing their catalogue songs: i.e. Trying to interest producers and artists in recording their songs or a film company in using a recorded version
Collecting Income from Licenses
Preparing Statements for Songwriters and Paying Royalty Shares
Enforcement of rights against unauthorized users
o. Key Agreements
Performing Rights Organization Agreements with BMI, ASCAP, and SESAC;
Songwriter agreements with writers
Mechanical and Digital Licenses for recordings of their Compositions
Sheet Music Reproduction and Distribution
Music Synchronization Licenses for use of music in film, video, commercials, and video games etc.
