music copyright - simpsons solicitors

© Simpsons Solicitors Telephone: (61 2) 9247 3473Suite 1202 Facsimile: (61 2) 9247 3442135 Macquarie StreetSydney NSW 2000Australia

MUSIC COPYRIGHT - THE BASICSby Shane Simpson LLB (Hons) M.Jur

This paper explains copyright for musicians, including which rights copyright includes, how long it

lasts, licensing, copyright in performances and sampling. Included is a list of the six most important

terms to consider when negotiating deals involving copyright.

Reproduced with permission, from “ Music Business ” by S. Simpson and C. Seeger published by

Warner Chappell (1993)

COMMON MISCONCEPTIONS

* Copyright is for lawyers and its their job to understand copyright.

* All lawyers understand copyright.

* The copyright is in the notes not in the way those notes are arranged.

* The band playing on the record has copyright in the record.

* If you wrote it no one else can change it.

* You can record any song no matter who its written by.

* You can't record any song unless you have the composer's permission.

* Mechanical royalties are called that, because they are automatic.

* You own all the rights at the end of the contract.

* If you sign a record contract you have to sign away your publishing.

* Always go for the biggest advance as you can.

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WHY IS COPYRIGHT IMPORTANT?

Copyright underlies most of the ways that people make money out of music. It is

fundamental. To make real money in the music industry, talent is optional but

copyright is compulsory:

* Most songs that are recorded are copyright; even the sound recording itself

has a copyright;

* Much of the sheet music published is of works that are in copyright and are

only able to be published because the publisher has obtained the necessary

rights of copyright to do so;

* There is a copyright in the published edition, distinct from the copyright in the

composition itself;

* Most of the music played in live performances is in copyright;

* Merchandising involves the use of copyright material;

* Playing music in public places such as shops and lifts usually requires payment

of licence fees to the copyright owners;

* No film or television drama could be made without the use of music and thus

use of copyright;

* Most radio and television commercials use copyright music;

* Every time you listen to music on the radio you are listening to the result of

several contracts involving copyright.

Like the beat, the list goes on.

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Whether you are a musician, a manager, a publisher, a record company executive or

an entertainment lawyer, your income is based largely on copyright. You should

spend some effort on getting to understand the basics.

Senator Button recently said that the Australian music industry turns over

approximately $2 billion each year. You can see that an understanding of what you

can do with copyright and how to do it can make you a lot of money. It is making

somebody a lot of money!

WHAT IS COVERED BY COPYRIGHT?

Copyright protection is given to two classes of things.

* "works" (including artistic, musical, literary and dramatic works);

* "other subject matter" (e.g. sound recordings, cinematograph works,

broadcasts and published editions).

WHAT RIGHTS DOES COPYRIGHT INCLUDE?

Copyright is a bundle of rights. It includes the right to:

(i) reproduce the work. (The most common forms are sheet music and records);

(ii) perform the work in public;

(iii) include the work in a television broadcast or transmit it by cable. (Just

consider how much music is used in one evening’s TV programming).

(iv) make an adaptation of the work. (For example cover versions, transcriptions,

send-ups ).

Copyright arises purely from each country’s laws. Most countries use what is known

as the Berne Convention as the basis for their national copyright laws, but there are

differences from country to country. For example, the USA copyright law does not

recognise public performance copyright in sound recordings. This means anyone

can perform or broadcast records there without having to get permission (or pay

royalties). Because of the way the Australian Copyright Act works, performance

copyright in records from the USA are not recognised when they performed or

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broadcast in Australia either. By comparison though, in England, all records (even

those from the USA) are treated as copyright for performance and broadcast

purposes. International copyright law is not for the squeamish.

WHAT IS THE SOURCE OF COPYRIGHT?

Copyright protection in Australia is provided by the Copyright Act 1968. It is

federal legislation.

In addition, Australia belongs to a number of international treaties, including the

Berne convention mentioned earlier, which dove-tail into the Australian laws.

Australian copyright owners can use these treaties to get reciprocal copyright

protection in other treaty countries.

WHAT FORMALITIES ARE NECESSARY?

The Australian Copyright Act provides automatic protection. No formalities are

necessary. As soon as a thing capable of protection is given a "material form",

copyright exists in it.

Don't post songs to yourself and then keep them unopened, unless you have some

glandular urge to do so. You will soon need a larger apartment to store all the

envelopes and the increased rental will outweigh any advantage.

Don't bother with so-called copyright registration services in Australia. They are

separating you from your money but do nothing to improve the validity of the

copyright itself. Take up smoking seaweed instead. It'll do you as much good.

To get copyright protection in Australia, you don’t have to put your name, the

copyright symbol and the year, on your songs or demos. However, there is still a

good reason for doing so. To benefit from copyright protection overseas, every

published copy of the work or recording has to bear a copyright symbol, the year of

first publication and the owner, otherwise it doesn't qualify under the Universal

Copyright Convention ("UCC"). The UCC is another one of those international

treaties, and important because until 1989, the USA was not a member of the older,

and arguably more important, Berne Convention. The UCC was the basis for

copyright recognition (in the USA) of Australian works and films etc, until the USA

joined the Berne Convention. Putting the copyright symbol and the other details on

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the work met the USA requirements for copyright protection, without you having

to register the copyright there.

Many people are mystified by the P symbol on records. The P symbol stands for

"Phonograph" and comes from the Rome Convention (yet another treaty!) when

sound recordings were first given copyright recognition in an international treaty.

Again, all published copies have to have a P symbol, the year of first publication and

the owner or the person who published the record itself (not always the same

person). The degree of protection given to sound recordings varies from country to

country. As mentioned earlier, the USA does not recognise public performance or

broadcast copyrights in records, so we do not recognise those rights in records made

in the USA or owned by USA nationals/companies.

If you are worried that someone is going to steal your song (which, lets face it, is

statistically unlikely) the best idea is to keep a regular diary of your work, showing

when you worked on a particular song, what it was called, when it was finished, to

whom you played it and when.

Copyright is automatic and free. All the diary provides is some proof as to what

you wrote and when you wrote it. Its just evidence that what you allege is true.

REPRODUCTION?

"Reproduction" may take many forms. Although it is most usually used as a

synonym for "copy" it really has a wider meaning in copyright law for the copy does

not have to be exact.

It need not be a copy of the whole work, merely a "substantial portion" of it. (For

example, using four notes from a piece of music would not usually be thought of as

a "substantial portion", but in the case of, say, the opening four notes of Beethoven's

Fifth, the answer may be different).

It need not be in the same form. (For example, the song of a book: for example,

Paul Kelly's "Everything’s Turning To White" on the "So Much Water..." album is

based on a Carver short story. A licence had to be negotiated with the Carver

estate. The lyrics are clearly not copied from the story but they do re-tell the story).

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PUBLICATION?

"Publication" is given a special meaning by the Copyright Act. It is defined as

meaning, the supply to the public (whether by sale or otherwise) of reproductions of

the work. For a musical composition this may be by means of sheet music or

records.

WHO OWNS THE COPYRIGHT ?

1. Musical works

In the case of records, it is important to distinguish between the musical work

reproduced on a record, and the recording itself. Remember, there is only

one owner of the song “Blue Suede Shoes” but probably hundreds of

recorded versions - each owned by a different person.

The general rule is that the "author" of the song is the owner of copyright.

The author of the music is of course the composer. The author of the lyrics is

the librettist. When looking at the musical work care be careful to

distinguishing between the author of the music and the author of the lyrics in

the song. The lyrics are protected as a literary work and the music as a

musical work. If their authors are different people, then separate permissions

will have to be obtained from each one if you want to reproduce the song.

Even if a composer is commissioned to write the music, he or she still retains

the copyright. However where composers are actually employed to write

songs (such as in the "Tin Pan Alley" composers) the employer owns the

copyright. Avoid contracts which use words deeming the composer to be “a

servant for hire”. Some publishers still use contracts that use this phrase in

their contracts. This must always be struck out. If they refuse, demand

superannuation and holiday pay!

2. Recordings

The maker of a sound recording is usually the owner of the copyright in it.

Note that the focus must be on who made the original master sound

recording, rather than on the record that reproduces that master. After all,

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the record is just a copy of the master. The maker is usually the person who

made the arrangements and paid for the master recording to be completed.

So, if you went to, say, EMI or Disctronics to manufacture records for you,

you would still own the copyright in the sound recording. You would be

commissioning them. They would not be acting as the record company in the

real sense of that term. They would be merely the commissioned

manufacturers.

As the maker of the sound recording is almost always a record company, it is

usually reasonably simple to track the owner(s) down. On the other hand, as

many small record companies go broke every year, it can become

extraordinarily difficult to get clearances from some. Sometimes the label

copy will give you some clues. If not, ask who paid for the making of the

recording? That will be the person or company from whom any permissions

will have to be sought. Recordings made by one record company for another

(for example, by an independent which is fully funded by a major) are a bit

more complex, as copyright ownership will be determined by the terms of

the contract between the label and the major which is funding it.

Most recording contracts specify that the record company will own all the

copyright in the recordings they make, even though all the costs of producing

and manufacturing the record are recoupable from the artist's royalties. This

is achieved in the recording contract. It is understandable that the company

should own the copyright until the costs are recouped but once that is

achieved, there is a good argument that copyright should be transferred to

the artists. After all, it is their performance and their money that, at the end

of the day, has paid for it. These copyrights can be seen as the artist’s

superannuation.

On the other hand, artists can disappear after a few years, and most have no

arrangements authorising some readily available person or company to grant

licences in their stead. If there is no-one from whom record companies can

get permission to re-release records, the master will probably not get used,

even if there is demand for the recording. It happens quite often with old

recordings (ie. recordings by groups which split up more than a few years

ago, or artists who have gone 'bush" - or somewhere more permanent).

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Arguably it is better for the recording to be administered by someone (even a

record company!), rather than not to be exploited at all.

3. Published editions

The copyright in a published edition of a musical work (the sheet music), is

the publisher of the edition. This does not affect the author’s copyright in the

music itself.

Music publishing is a huge and lucrative industry. This is principally because

these companies promote the composers who are signed to them, promote

their work and retain between 10% and 50% of the income the works

generate. Every time that a piece is played on the radio in a film, or on a

television program, the publisher gets a cut. There are thousands and

thousands of composers but comparatively few publishers.

Composers usually sign agreements with a publisher by which the copyright

in all of their works written during the term of the contract will automatically

become the publisher’s property for a specified period of time. In return, the

publisher commercially exploits the works, protects them if the copyrights are

infringed by unauthorised users, keeps a percentage for its services and gives

the composer the balance of the income from those works.

Publishers used to make the bulk of their income from the sale of sheet music,

but this is no longer the case. As you will see, mechanical copyright royalties

(ie. from use of works in records) is by far the greatest single source of

income, followed by pubic performance fees.

Indeed, publishers no longer make their money by direct exploitation of the

compositions of their composers. Rather, nowadays, they make most of their

money by convincing others to exploit their composers' talents: by

persuading advertising agencies to use their works for a commercial, getting

a film producer to commission their composer to write the film's sound-track;

to convince a well known recording artist to record their composers' songs....

All of these are exploitations of copyright and all of them earn money for

both the composer and the publisher.

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HOW LONG DOES COPYRIGHT LAST?

1. Musical works

The general rule is that the copyright in musical compositions lasts for fifty

years from the end of the year in which the composer died.

However, if the work was not "published" (say as sheet music, publicly

performed, broadcast, or sold in the form of records, during the composer's

lifetime) the copyright period does not start running until the end of the

calendar year in which the first of those events occurs (if ever!).

2. Sound Recordings made prior to 1 May 1969

If recorded after 1 May 1969, copyright in these last for fifty years from the

end of the year in which the recording was made.

3. Recordings made after 1 May 1969

In this instance the copyright period of fifty years starts to run from the end

of the year in which the recording is first published. Basically this means the

year of its release to the public, so if a master recording is made but, for

whatever reason, a decision is made not to release the record, copyright will

remain indefinitely, because the fifty year period will never start to run.

The difference between the dates was caused by the introduction of the new

Copyright Act 1968, which came into effect on the 1 May 1969.

4. Published editions

There was no copyright in published editions before 1 May 1969. Editions

published after that date enjoy copyright protection for 25 years from that

date of their first publication.

5. Anonymous or pseudonymous works

The copyright in these subsists for fifty years after the end of the calendar

year in which the work was first published. However, if the composer's

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identity is generally known, or could be ascertained by reasonable inquiry,

the general rule applies.

6. Works of joint authorship

Again, whether or not the work has been published is significant. Where it

has been, the 50 year period runs from the end of the calendar year in which

the last remaining author dies. However, where the work is posthumously

published, the period runs for fifty years from the end of the calendar year in

which the work was first published.

Where one or some (but not all) of the joint authors uses a pseudonym, the fifty

year period runs from the end of the year in which the last author, whose

identity has been revealed, dies.

Similarly, where all of them use pseudonyms, if at any time within fifty years

of publication the identity of one of the authors is or could be ascertained, the

period runs from the end of the year in which the author, whose identity has

been revealed, dies.

Who said copyright was simple?

DEALING WITH COPYRIGHT

The statutory provisions as to the ownership of copyright are all subject to variation

by contract. Most commonly, this is done by:

1. The assignment of copyright.

Assignment is essentially a transfer of rights. It is just like a sale of the rights.

Thus, one should always beware of assigning one's rights as it means

ownership of them (and usually control as well).

It used to be common for record and publishers dealing with copyright to

adopt a rather heavy hand in this regard. They used their considerable

power not only to acquire assignments of copyright but also to get a free

hand in the way in which they exploited those copyrights. Fortunately, the

general approach has improved greatly. Most reputable companies now will

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negotiate their deals so that the composer/artist retains at least a degree of

control over how the works may be exploited.

2. Licensing the rights

When a copyright owner grants a licence, he or she permits another to use

the right but retains ownership and thus a certain control over that right.

Licences allow the usage to be limited to the real needs of the licensee. It also

means that you don't lose total control of your rights. Where possible,

copyright owners should license, not assign!

3. Basic terms

A copyright is a very flexible piece a property. Licences and assignments all

deal with the following basic matters:

(i) Territory:

You can license someone to use your copyright in a particular territory

but retain the rights to certain other territories.

(ii) Term:

You can assign or license copyright for a set number of years. Many of

the old deals were for "life of copyright'. This is simply not the market

any more. After a certain period all rights should revert. Three to ten

years is the current range.

(iii) Use:

What uses are you going to permit? You may be happy for Brian Ferry

to do a cover of your song but you may not want it used in a Sanilav

commercial.

(iv) Creative Control:

What changes to your work are you going to permit? What degree of

control are you going to retain? Will these affect your royalties?

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(v) Fee:

Whether you negotiate an outright fee, a royalty, or a combination of

fee and royalty, depends on what sort of deal in involved, who you are

and who you are dealing with.

(vi) Enforcement:

Who will protect the copyrights from against infringements? Who will

pay?

WHAT ARE MECHANICAL ROYALTIES?

This is the royalty paid to the owner of the copyright in a work in return for the

licence to include that work on a record.

It is called a mechanical royalty because in the days before records the main method

of reproducing songs was music boxes and later, player pianos, using piano-rolls. In

the early Copyright Acts these were referred to as "mechanical devices". A royalty

was paid to the composer for the right to put his or her music on a player piano roll.

Thus the term "mechanical royalty" was introduced and stuck.

Notice that mechanical royalties may be either "statutory" or "negotiated",

depending upon the use and the country in which the reproduction takes place

(more on this in Chapter z “Controlled Composition Clauses”.

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WHAT DOES “PUBLISHING INCOME” MEAN?

When we talk of "publishing income" in the music industry we are referring to

income flowing from mechanical royalties; sale of sheet music; commissions for new

works; licensing works for subsidiary uses such as film, television and

advertisements; licence fees for the playing and broadcasting of works in public;

miscellaneous income sources such as the new levy on blank tapes.

IS ALL USE OF COPYRIGHT MATERIAL FORBIDDEN UNLESS YOU HAVE A

LICENCE?

The Copyright Act provides for a number of situations in which reproducing a work

will not amount to an infringement of copyright.

1. Fair Dealing

This specifically covers the use of artistic, literary and musical works (not

recordings or films), for the purposes of:

(i) research or study;

(ii) criticism or review (although sufficient acknowledgment must be

made); and

(iii) reporting news in a newspaper, magazine, film or television broadcast

(although in the case of the print media, sufficient acknowledgment

must be made).

To determine whether or not a dealing is "fair", regard is given to several

factors:

(i) the purpose and the character of the dealing;

(ii) the nature of the work;

(iii) the possibility of obtaining the work within a reasonable time at an

ordinary price;

(iv) the effect of the dealing on the value of or market for the work; and

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(v) where only a part of the work is copied, the amount and substantiality

of the portion copied, taken in relation to the whole.

2. Use of an insubstantial portion

To be an infringement, the use must be a reproduction of a “substantial”

portion of the work. Of course what is substantial is a question of fact and

degree in every case.

There are no simple rules of thumb you can use, although you may hear glib

and reassuring little phrases such as " You can use up to 14 bars of music", or

"Its OK if you change a note here or there". None of these are true. It will

vary in each case. George Harrison of "The Beatles" had to pay millions to the

composer of "He's So Fine" because a court found that he had (unconsciously)

used that melody in writing his big hit, "My Sweet Lord".

Anyone who suggests that there is some magic rule which lets you use grabs

of copyright material for free, is ignorant and no friend of yours. This is

particularly relevant now that "sampling" is so prevalent. If there is any rule

here, it is “If someone can recognise your work as being even remotely

similar to someone else’s copyright work, you probably have a problem,

(unless your work can be shown to not be in any way derived from the

other)”. Good luck.

3. Home taping

Virtually all Australian households contain privately made reproductions of

musical recordings and radio broadcasts. How many times have you gone

into a restaurant and seen a pile of home made tapes being played as

background music? Over the years, making such cassettes has become one of

the most publicly recognised examples of community sanctioned unlawful

behaviour. It seems virtually everybody does it, and no one (except copyright

lawyers!) feels particularly guilty about it, and nobody can do anything about

it, short of sending the Thought Police into every home.

Any law is only as powerful as the preparedness of its community to adhere

to it. (The reluctance of the courts to enforce contracts for personal services is

but one example of this). In the case of home taping, the intrusion of a court

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official into the lounge room of every home in Australia would have been

practically, politically, financially, commercially and morally unthinkable, even

though home taping is illegal and cheats writers, performers and the industry

generally.

After discussion (for nearly a decade) about reform, the legislature decided to

make home audio taping legal, in return for a copyright royalty on blank

tapes.

The cynical might say that it has eased our consciences and introduced

another tax. To some extent that is true, but it was intended to do much

more: it was intended to introduce a mechanism by which the copyright

owners (who are presently being cheated of their rightful income) could

receive some, if not their due, compensation. Several European countries

have enacted similar legislation.

The legislation was passed, but was challenged by the blank tape

manufacturers, who fear that the imposition of a levy will affect sales. The

High Court ruled that the legislation was invalid.

PROTECTION OF PERFORMERS AND THEIR PERFORMANCE

Also in the Copyright Amendment Act introduced in November 1988 was perhaps

the most important reform to the law of copyright (at least as far as the arts and

entertainment industries are concerned) for eighty years.

Throughout the history of copyright in Australia, the performance itself - that

primary focus of the music, theatre, dance and film industries - has had little or no

protection, save for that provided by the law of contract and (occasionally)

defamation and passing off. The problem has been the Copyright Act’s fixation with

“fixation” (to turn a phrase). It is well known that copyright provides no protection

for ideas. It protects the material form in which those ideas are expressed. This

simple proposition has been an enormous stumbling block to the introduction of

performers' protection for the performance is, by definition, live, temporary and

ephemeral. In order to fix it in a material form one must destroy those inherent

features which make it a performance.

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Copyright has been largely based upon traditional notions of property and property

ownership. It has always been an unpleasant irony that the maker of a bootleg

recording of a performance enjoys copyright ownership of (and protection for) that

sound recording, yet the poor performer has no right to determine whether or not

the performance is to be recorded at all, what will be recorded, how, when and by

whom the recording will be made; let alone receive remuneration from sales of the

recording.

The new legislation does not create a new kind of copyright. The performer does

not have “own” the performance. Rather, an Australian performer now has a right

to take action (including getting injunctions) against any "unauthorised use" of their

performance. In effect, the new law creates a 'neighbouring right'. That is: One that

is derived from, or is dependent upon, the copyright in the work that is performed,

recorded or broadcast.

No one may now make an “unauthorised” use of a performance, during the twenty

year protection period without the permission of the performer. An unauthorised

use is exhaustively defined.

The remedies supplied by legislation are comprehensive. As well as creating

offences the Act provides for injunction and damages. Also, the court may award

"additional damages" if these are appropriate having regard to matters such as the

flagrancy of the use and the benefit which has accrued to the defendant. This will be

a strong deterrent to commercial bootleggers.

SAMPLING

One of the most contentious and yet widespread practices that technology has

endowed upon the music industry is "sampling". It is now common in rock, jazz,

and apparently de rigeur in "rap", "dance", “house” and "hiphop" music.

Unfortunately, the term is inconsistently used. Sometimes people use it to mean

creation of a sound envelope for emulation in some form of synthesiser. That is the

meaning which we will use here. Sometimes, people misleadingly use the expression

“sampling” when referring to the copying of whole phrases from other recordings.

This particular activity undoubtedly amounts to "substantial reproduction" - a

phrase well known to copyright lawyers!

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The usual case of sampling is when a musician or the producer merely takes a sound

or series of sounds from its original context and make a new use of it. For example,

the producer of a dance record may take a riff from a B B King guitar solo recorded

in the sixties and the drum track from a Ginger Baker album recorded in the early

seventies and use computer technology to combine these with the performance of

the present day recording artist. To date, it has been rare for the "sampled" artists to

be approached for their consent, acknowledged as the performer or rewarded for

the reuse of their performance.

The re-use of pre-existing material in an entirely new social, political, social and

intellectual context is a feature of many forms of modern (or so-called "post-

modern") arts practice. In artistic terms this is described as "deconstruction" and "re-

contextualisation". In the visual arts, it is euphemistically described as "appropriation"

(what a quaint term!). In the music business it is called "sampling". A copyright

lawyer however, will most likely describe the same conduct as any or all of the

following:

(i) a breach of copyright in the sound recording from which the sound

bite is taken;

(ii) a breach of the copyright of the underlying musical work; or

(iii) an unauthorised use of the artist's performance.

Bringing a legal action on the basis of breach of copyright in the sound recording

used to be difficult because it was not always easy to identify the sampled

performance and prove that it is indeed a reproduction of the earlier recorded

performance rather than a "sound-alike performance" (in which a later artist is

imitating the original). Nowadays there is no such problem. A simple electronic

matching process allows the easy identification of sampled material.

The real reason that few owners have been prepared to undertake the expense of

copyright litigation against unlawful sampling and re-use of an earlier recording, is

simply that it is rarely cost effective. However, try sampling The Beatles or Michael

Jackson and see how fast the record company moves! The weight of the artist will be

sufficient to force the company into action merely to keep the artist happy.

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As to the breach of the copyright in the musical work, there must be a very real

doubt as to whether sampling is covered by the statutory mechanical licence or

indeed any formal industry agreement. So long as the sample is of a "substantial"

portion of the work, there is a breach of copyright. As "substantial portion" is really

just another way of saying the "essence", it is clear that many samples do fit within

this description. After all, capturing the essence of the earlier work and re-

contextualising it is part of the very purpose of sampling. Again, however, the

expense is great and the return quite small. Most publishers would agree to grant a

licence for a sample, particularly if they are asked during production of the sample,

rather than after release of the record! Usually they charge a modest one-time flat

fee rather than a percentage of mechanicals, but this depends upon the song in

question. Some composers are very much against the practice and will force their

publishers to refuse to license the use of their songs in others' works.

In most cases, it is the artists who are most angered by the re-use of their talents

without permission or reward and it is they who will press the recording or

publishing companies to bring proceedings. Since the introduction of the Copyright

Amendment Act 1989 and, in particular, s.248 G, artists have been given the ability to

bring their own proceedings against samplers. Now, if the plaintiff artist can prove

that the defendant has made an unauthorised use of his or her performance, the

artist will be able to seek an injunction and damages (s. 248 J).

In the USA, the process of sampling has become so commonplace that record

companies are now no longer discussing the legality or otherwise of the process but

rather, discussing:

(i) how much should be paid by way of a licence fee;

(ii) to whom should the fee be paid; and

(iii) whether that fee should be recoupable from the earnings of the artist

or be met by the record company.

In the USA, the fee to the record company is usually calculated in cents rather than

percentages of the selling price. The latter generates such complicated royalty

accounting statements that most sampled artists prefer to use the simpler, set-fee

method. Small bites may be licensed for $40 to $2,500 per bite or 1c-2c per record

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sold. The actual figure depends on the fame of the sampled performer; whether or

not the original recording was a hit; how long ago it was released; and all the other

commercial factors that usually determine the value of a licence.

The fee to the publisher is generally calculated either as a percentage of the standard

mechanical royalty payable under the statutory licence scheme or as a flat fee.

Common figures seem to be in the region of 25%-50% of the mechanical royalty,

again depending on the commercial realities of the licence.

It is all well and good to merrily talk of paying cents here and percentages there, but

who is actually paying this money?

The record companies argue that these payments are in the nature of recording costs

and therefore (assuming that the recording costs are recoupable under the recording

contract) should be recouped from the artist's share of income.

The artists argue that this allows companies faced with the bother of clearing

sampled performances to take the risk of not obtaining clearances and merely

relying on the artist's warranty (and indemnity) in the recording contract that he or

she has the necessary rights. Then, in the event that a claim is made, the company

simply settles the matter using the artist's royalties as and when they accrue.

Musicians and record producers who use sampling techniques should ensure that,

prior to commencement of recording, they determine who will be responsible for

the clearance costs and provide the record company with a memorandum of all

samples to be used, detailing where they have been taken from and the use to be

made of each sample (both as to nature and length of use).

One other aspect of the sampling controversy highlights the industrial nature of the

problems underlying the reuse and re-contextualisation of performances. A very

successful Australian rock band recently incurred the wrath of the Musicians' Union

by lifting from its own record, the performance of the backing vocalists who had

been hired to perform of the record. Now, whenever that band plays live they can

achieve the sound of the backing vocalists with the flick of a computer switch.

Backing vocalists argue that such bands appropriate their voices and reuse them at

will and without further payment.

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Perhaps the most appropriate way of dealing with this problem will be by way of

amendment to the Musician's Award so that some form of residuals will be paid

each time the session musician's performance is re-used. The difficulty facing the

Union is a political one: those doing the sampling and those being sampled, are both

members of the same Union.

CONCLUSION

The rights of copyright are very valuable. They are what feed, house and clothe

both composers and recording musicians and they provide the profit incentive for

record and publishing companies to promote those musicians and their work. The

rights are valuable and they are complex.

SIX MOST BASIC TERMS TO BE DETERMINED WHEN

NEGOTIATING DEALS INVOLVING COPYRIGHT

1. TERM?

2. TERRITORY?

3. COMMITMENT?

Recording deals:

to record agreed number of records

to provide minimum recording budgets

to release records

to provide publicity budgets

Publishing deals:

to provide money for demos

to assist in obtaining the record deal

to provide publicity,

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to provide tour support

to obtain commissions for new work

4. COPYRIGHT?

who owns?

term of licence or assignment

length of control period after expiration of term

reversion triggers: if exploited? If not exploited?

5. REWARDS?

what percentages for which uses?

what royalty base is used for calculating royalties?

advances? How much? What triggers each advance?

accounting procedures

6. CREATIVE CONTROLS?

selection of material

selection of producers

right of approval of sub-licensing or assignments

music copyright - simpsons solicitors

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