Music Copyright History:

1790 Constitution Article I, Section 8

…to promote progress of science and useful arts…limited time….exclusive rights

Major Revision 1909 Most recent 1976, became effective 1/1/1978

What is Copyrightable? Original Works of Authorship

What constitutes “Original” “Authorship”

Not Ideas, but the “Fixation” of an Expression of the Idea

What is Copyrightable? Literary Works Musical Works, including Words Dramatic Works, including Music Pantomimes & Choreography Pictorial, Graphic, & Sculptural Works

Motion Pictures & Audio Visual

What is Copyrightable? cont. Sound Recordings

Not under the 1909 Law, but protected by other state statutes

Architectural Works

What is Copyrightable? cont. Name of Band is Not Band Name is a Trade Mark/Service Mark issue

Original art of the Band Name Is

When is A Work Copyrighted When it is “Fixed in any tangible medium of expression” . . . written, recorded, etc.

Proving the date of fixation is the problem.

Exclusive Rights Reproduce (Duplicate)(Mechanical Royalties)

Derivative Works Distribute Copies Perform Publicly (Performance Royalties)

Display Publicly Digital Performance Transmission of Sound Recording (Congress considering extending to all)

Exclusive Rights cont. Sound Recordings do not have right of Performance Except Digital Transmission

What does this mean?

“Fair Use” (p. 93) Certain Uses are Allowable Used For: Criticism, Comment, News Reporting, Teaching, Scholarship, Research

No Strict Definitions

Two Musical Copyrights Form PA (Performing Arts): the work of art (song: music & lyrics); songwriter owns rights

Form SR (Sound Recording): the “fixation” of sound, not the underlying song; performers, producer, record label owns rights (depending on contract)

Fair Use “Fair Use” is a “Legal Defense” to Infringement

1. Purpose or Character of the use

2. Nature of the Copyrighted Work 3. Amount & Substantiality 4. Effect on the Potential Market

Fair UseNon Infringing Performances Remember these must meet the

test1. Performance or Display, Face-

to-face teaching, non-profit ed.

2. BUT, copying various chapter to make your own textbook effects the textbook market

Fair UseNon Infringing Performances2. Performance, display,

transmission (non-dramatic) if.a. Regular part systematic

instructionb. Directly related to teaching

contentc. Transmission reception is in

classrooms

Fair UseNon Infringing Performances3. Performance (non-dramatic) religious service.

BUT, copying songs from book effects the print music market

Fair UseNon Infringing Performances4 Performance (non-dramatic)

without commercial advantage (payment for performance)

a. No direct or indirect admission or

b. Proceeds (after production costs) not used for financial gain

Fair UseNon Infringing Performances5. Performance (food/beverage

musak or TV)a. Less than 3750 sq ftb. If more than 3750c. • less then 6 speakers,

less than 4 per roomd. • less than 4 TVs, 1 per

room

Fair Use Chart For Teachers http://www.mediafestival.org/copyrightchart.html

FAIR USE CASE Campbell v. Acuff-Rose Music, Inc (1994)

Pretty Woman/Oh, Pretty Woman District Court held as Fair Use Court of Appeals, commercial nature disqualified it

Supreme Court: found the more transformative the better, purpose & character created a new work

Duration of Copyright (p.100)

1909 law, two 28-year terms equals 56 years

Published or registered prior to 1923 are “Public Domain”

1976 Law, effective 1/1/1978, with the 1998 Sonny Bono Copyright Term Extension ActDuration Currently: Life plus 70

Duration of Copyright cont. “Work Made For Hire,” anon. or psuedo. Shortest of: 95 yrs from Pub. or 120 yrs from Creation

Published between 1923-1978 overlap the new law. Granted 95 yrs.

Copyright Chart

Ownership The “Bundle of Rights” can have multiple owners. WARNING; always have a formal agreement.

Ownership of the copyright is DISTINCT from ownership of a physical object (master tape)

“First Sale Doctrine” establishes rental industry

Transfer Assignment Any of the 6 rights can be transferred or assigned

Written agreement File with Copyright Office

Termination of Transfer Any Transfer made after

1/1/78 can be recaptured1. A 5-year window between end

of year 35-402. Right of Publication: 35 yrs

from pub. OR 40 yrs from execution

Termination of Transfer cont.3. File “Intent to Terminate” not less than 2 yrs before or more than 10 yrs before

4. Contract language does not effect this

5. 1923-78, 5-yr window at the end of 75 yrs

6. “Work Made for Hire” cannot be recaptured

Work Made for Hire (95) Employer is considered the

author (owner) Criteria1. “Work prepared by an employee

within the scope of employment”2. Work Specifically ordered or

commissioned” AND . . . .

Work Made for Hire cont.AND must sign agreement stating “Work Made for Hire”

Employee means SS benefits and withholding taxes

Arrangements Arrangement is a “derivative work” no ownership

“Request Permission to Arrange” form

For Recording a Mechanical License replaces the above form

Except Public Domain, may receive royalties

Sound Recording The “Fixation” of the sounds (Form SR)is different from the “Musical Work” (Form PA)

Rights: Reproduce, Derivative, Distribute, Perform by Digital Audio Transmission; no performance rights for other transmissions.

Sound Recording The owner of the SR copyright can only duplicate the exact fixation of sounds, not another version.

It is Legal to make a new recording that imitates another without violating the SR Copyright

Question What are the implications of only Performance Rights for Digital Transmission?

Quick View of Licenses Mechanical - to duplicate Performance - to play in public, live or recorded

Synchronization - putting music to pictures

Transcription - music for syndicated programs & background music

Master Use – to license a recording (SR)

Compulsory/Mechanical License Owners have control of the first recording

After, they are “Compelled” to grant a license for recordings (not Transcriptions)

Notify copyright holder of intent within 30 days (before or after), before distributing.

Can’t find owner, notify Copyright Office

Compulsory Mechanical Rates 2006 and later: 9.1¢ per song (5 min.) or

1.75¢ per minute

Mechanical Royalties Paid for each Phonorecord when “made and distributed”

Distributed Means “voluntarily & permanently parted with its possession”

Sale is not required, i.e., free goods

Returned items are not “permanently parted”

Negotiated Mechanical License Alternative is to Negotiate for lower rate

Record Labels Want to Pay Lower Rate on “Controlled Compositions”

Formalities (p.103)n 1. Notice of Copyrightn On Printed Musicn © 2005 Sandy Schaefern On Phonorecordsn circle-P 2005 Sandy

Recordsn

Formalities cont “All Rights Reserved” adds protection in foreign countries under Pan-American Convention

Formalities cont. Omission1909-1978 invalidated copyright1/1/78 - 3/1/89 does not invalidate IF• missing on small number• registration made within 5 yrs ANDreasonable effort made• owner requested no notice in writing

Formalities cont.2. Deposit of CopiesWithin 3 months deposit LOC 2 copies of “Best Edition”

1909-1977 required sheet music1978 - a recording

Formalities cont.3. Registration“is not a condition if copyright”

Works must be registered before one can sue for infringement.

CRT, CARP, & CRB Copyright Royalty Tribunal, 1976-93 Copyright Arbitration Royalty Panels, 1993

Copyright Royalty Board, 2004Both helped determine rates for:1. Cable/Satellite, 2. Ephemeral sound recordings, 3. Digital Delivery, 4. Mechanicals, 5. Jukebox, 6. Educational Broadcast

Infringement (p.107) Using Copyright Material Without Permission or License

Remedies: Injunction, Impoundment, Destruction, Damages (Actual Damage or Statutory Damages)

Unregistered Works: No Statutory Damages or Lawyers Fees

Piracy (p.108) Manufacture and Sale of Phonorecords without permission or License

1982 Piracy & Counterfeit Act Max $250,000 & Jail

Audio Home Recording Act 1992 Allowing home duplication Royalty payment & “Serial Copy Management System”

Dual CD Recorders use SCMS “Audio” or “Music” CDs include a Royalty divided between featured and non featured players

Trade Names Trademarks Naming Band• DBA or Fictitious Name Form• Check with Unions, ASCAP, BMI, SESAC

• Library: Index to the Trademark Register

Band Names Written Agreement: Who Owns Name, How is Ownership Shared, How Does it End What Happens when People Leave the Group

Copyright Forms http://www.copyright.gov/register/

Register online $35 eCo (electronic copyright)