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« Marketing OneOH!One: Break On Through To The Tangential Side | Main | Great! You've Got Their Attention - Now What? »
Tuesday
Feb212012

BACK TO BASICS: COPYRIGHT(S)

1.  Introduction.

Any artist hoping to break through in the digital age has a fundamental decision to make; embrace wholeheartedly a DIY pathos and work ethic, or throw in the towel now and reconcile oneself to hating on those whose perceived ease of success masks tireless work, focused dedication, and strategic planning—don’t think Skrillex deserves his meteoric success?  Let’s see you make a commitment to your fans to try and play 322 shows next year! (www.billboard.biz/bbbiz/industry/record-labels/skrillex-on-how-he-got-5-grammy-noms-we-1005601152.story.)  

That being said, it is perfectly understandable why today’s working full-time, studying full-time yet still starving artist can’t help but feel sudden pangs of nausea every time a self-styled “Music Industry Professional” spouts off another DIY mantra and then pitches their new ‘game changing’ app.  But despite the unease, the DIY reality remains unchanged. Today’s artist must wear multiple professional hats, including those of CEO, CFO, and general counsel.  

As CEO the DIY artist must make careful decisions concerning how and when to spend their precious time and energy.  Fame House’s Hisham Dahud (www.famehouse.net/about-2/team/) made this point nicely at the recent 29th Annual California Lawyer’s for the Arts (CLA) Music Business Conference.  Speaking on a DIY marketing panel, Hisham reminded the artists in the audience that there are “only so many hours in the day.” When deciding what social networks and media outlets to focus on the DIY artist must be mindful to work hard and smart (simply working hard won’t cut it).  

As CFO the DYI artist needs to avoid squandering limited financial resources and must always be on the lookout for opportunities to make something out of nothing.  Decisions concerning when to give music away for free, when to call on fans to participate in a Kickstarter campaign, or even when to purchase new equipment require careful and deliberate consideration.

And as general counsel every independent artist must take responsibility for reading their own contracts and doing their best to understand what they are agreeing to (i.e. what rights and interests they are giving up).  Rhapsody’s Cecily Mak articulated this point perfectly at the CLA conference when she gently reminded artists that “contracts are written in English.”  While they may be long and dense, that is no excuse to avoid sitting down and taking a long hard look at every single word, ideally before signing!

The good news is that many people are trying to help the modern day DIY artist navigate these complicated tasks.  Organizations such as California Lawyers for the Arts (www.calawyersforthearts.org/), Stanford’s Copyright and Fair use website (http://fairuse.stanford.edu/index.html), and blogs such as Nolo’s “Dear Rich” (http://dearrichblog.blogspot.com/) are underutilized resources available to cash-strapped artists.  

And in that spirit of assistance, below you can find a brief primer on copyright basics similar to the post I did on trademarks a little while back (www.hypebot.com/hypebot/2011/08/a-bands-legal-essentials-trademark-copyright-and-registration.html). You have probably come across this information somewhere before, but as a great professor of mine, Michael Ashburne, likes to point out to his students, repetition is the key to understanding.

2.  Copyright Basics in Plain English.

Under Federal law, copyright protection extends to “original works of authorship fixed in any tangible medium of expression.”  Copyright protection does not extend to mere ideas or concepts.  So what does this mean in practice?  

First: The “work” has to be original and creative.  Don’t think that you can copyright your process for making great marinara sauce.  While a process for making great marinara could under some circumstances be protected as a Trade Secret (http://dearrichblog.blogspot.com/2011/08/how-do-you-create-trade-secret.html), copyright law specifically excludes procedures, processes, systems, methods of operation, principles, or discoveries from protection.

Second: You actually have to reduce the creative work to something “tangible,” i.e. physical.  If you think up a song in your head, but don’t write it down or record even a bad take of it, the work will not be protected!  Practically this means that before you go into the studio with any session musicians to lay down a track, you better make a rudimentary physical copy of the work (an mp3 will suffice) or else run the risk of everyone in that studio session claiming a piece of ownership.

If you think up something creative and original and fix that creation in physical form, then depending on the type of work, it will be vested with a number of particular copyrights.  

Those rights may include:

One: the right to reproduce the work;

Two: the right to sell & distribute copies of the work to the public;

Three: the right to make derivative works based on that work;

Four: the right to perform the work publicly;

Five: the right to display the work publicly (think sculpture); and

Six: In the case of a soundrecording (see below for definition), the right to perform the work publicly by means of digital audio transmission.

3.  So What Is A “Song” Anyway?

Now, what most people typically call a “song” consists of two, yes two separate creative works, both of which may be vested with copyrights.

First:  The Musical Composition.  The musical composition is the song broken down into its structural/elemental form.  Think about this as the song’s DNA, which is visually represented by sheet music. 

Second: The Soundrecording.  The soundrecording comes into being when you actually record the song.  This is essentially a particular or unique recording of a musical composition (typically referred to as a master recording).  So, if you take a second to think about it, you can have a musical composition without having a soundrecording, but you can’t have a soundrecording without a musical composition.  Another way to wrap your head around this is by thinking about a cover song.  A cover is simply a new soundrecording of an old musical composition.

So, each recorded “song” consists of two separate creative works, both of which may be vested with the copyrights listed above.  That means, that with respect to a recorded song, anyone who wants to reproduce it (think make digital copies of it), make derivative works from it (think remix it), publicly perform it (think play it on juke box or use it in a T.V. commercial), or sell it (think of the record label selling your song on iTunes), must get the permission of either the owner of the musical composition, or the owner of the soundrecording, and often times permission must be given by both.  Here “permission” generally means they have to cough up some cash for a license allowing them to exploit a particular copyright.

And those are the basics of copyright.  The next four sections provide very brief discussions of a few more issues that many artists are still unclear on.

4.  Do I Really Need To Register My Copyrights?

The short answer is NO.  Technically you don’t have to register a copyright in order to avail yourself of the copyrights described above.  But, if you ever find yourself in a situation where someone is using your song (think musical composition and/or soundrecording) without your permission and you want that person to stop, you better have your copyright registered. Further, if you didn’t get around to registering your copyright within three months after first publishing it, you will not be allowed to collect as much money in an infringement lawsuit as you would have been able to had you registered on time.


5.  Why Do I Have To Become A Member Of A Performing Rights Organization (BMI / ASCAP / SESAC)?

Recall that one of your copyrights is the right to perform your work (in particular your musical composition) publicly.  Technically, every time someone plays your musical composition in public, whether on terrestrial radio, a juke box in a bar, or even through an iPod at a restaurant, you are entitled to get a little bit of cash because they are exploiting your public performance copyright.  But you alone can’t possibly monitor all public sites where music is played.  So the performing rights organizations were formed to collect money from all of these public entities and distribute those funds to the copyright owners.  If you don’t sign up, you may be leaving money on the table.


6.  What Is SoundExchange?

Recall that the sixth copyright listed above creates a special right to perform a soundrecording publicly by means of digital audio transmission.  In plain English, this means that digital radio and satellite services have to pay you for the right to play your master recording.  Actually, this is a relatively new copyright (Congress created it in 1995).  Understanding that it would be impracticable for every digital service to clear this right before playing your song, Congress created SoundExchange to collect and distribute those digital audio transmission royalties.  Like the performing rights organizations, if you don’t sign up you may be leaving money on the table!  Interestingly, no such equivalent copyright exists for the performance of a soundrecording over traditional terrestrial radio.  

7.  What Is A “Sync” License Again?

If someone wants to “synchronize” a musical composition (and sometimes the soundrecording as well) to visual images, they are required to license the right to do so from the respective owner(s) of said musical composition (and soundrecording if applicable).  The right to determine when your musical composition (and sometimes soundrecording) may be “synced” to visual images is distinct from the more fundamental right to publicly perform a work. Thus, the party who wants to synchronize a musical composition (and often the soundrecording as well) to visual images is required to purchase a license from the copyright owner(s).

8.  Conclusion.

For those who made it all the way to the end of this post, I hope it was helpful!  Answers to your questions are out there if you take the time to seek them out.  Good luck!

 

DISCLAIMER – The information presented in here is purely for educational purposes and should not be relied upon as legal advice.  Legal information is not the same as legal advice.  Legal advice involves an examination of the particular facts of your case an analysis of how the relevant law applies to those unique facts.  In no case should a general informational blog be used as a substitute for the advice of a competent attorney, licensed in your state, conducting a thorough legal analysis.


Dan Turner is a San Francisco based entertainment and business law attorney.  

Contact: dt@danielturnerlaw.com

 

Reader Comments (4)

By referring to "the right to sell & distribute", this article perpetuates a popular misconception about copyright. What the law grants is actually just the right to distribute. No one is entitled to sales and profit, no matter how valuable they feel the work is. Nor is there even a requirement that distribution, or the granting of permission to distribute, necessarily involve any kind of fees, royalties or other compensation to the copyright owner in every circumstance—owners are free to grant any license they wish, hence the popularity of software and a/v media licenses which, for example, allow free distribution and derivative uses for noncommercial purposes.

What artists should know is that what copyright law is designed to do is protect their work, ostensibly for a limited time, from other people exploiting it, so that if it's even possible to exploit it, market conditions withstanding, then the copyright owner (and whoever is under contract to them) is the only entity entitled to control and possibly benefit from it financially.

Thus, copyright can help protect the commercial interest of the copyright owner and the copyright exploitation industries, but one should not assume that copyright is some kind of insulation against commercial failure.

February 21 | Unregistered CommenterOphelia Millais

Well even it is a long article it is quite worthy to read it and a reference article.

I intentionally had to hold back from nerding out too hard in this article because it is meant to be an easily digestible reference for non-lawyers. But I am happy to do so in the comment section ☺. So, with regard to the “sale and distribution” of musical compositions and sound recordings:

17 USC § 106 of the copyright code grants the owner of a copyright a bundle of exclusive rights. In particular 17 USC §106(3) grants the owner of a copyright the exclusive right “to DISTRIBUTE copies or phonorecords of the copyrighted work to the public by SALE or other transfer of ownership, or by rental, lease, or lending.” This right applies to both musical compositions and sound recordings (See 17 USC §114 for more details on the scope of exclusive rights in sound recordings).

Now, the owner of a copyright in a musical composition or sound recording controls the exclusive right to make an initial public distribution of said work. It is of course, up to the owner to decide whether they want to distribute the work free of charge, or if they want to attempt to commercially exploit the work. With respect to the musical composition, once the owner makes an initial distribution of the work to the public, they no longer control the absolute right to distribute the work. After the musical composition has been distributed to the public, anyone can obtain (which generally means they must pay for) a mechanical license (most often facilitated by the Harry Fox Agency) allowing the licensee to produce phonorecords embodying the musical composition (or create permanent digital downloads) and to distribute such to the public (for sale or not). A compulsory license grants the licensee “the privilege of making a musical arrangement of the work to the extent necessary to conform it to the style or manner of interpretation of the performance involved, but the arrangement shall not change the basic melody or fundamental character of the work, and shall not be subject to protection as a derivative work under this title, except with the express consent of the copyright owner.” (See 17 USC §115(a)(2).) Currently the statutory rate set for mechanical licenses for physical phonorecords or permanent downloads is 9.1 cents or 1.75 cents per minute of playing time or fraction thereof, whichever is larger (See, http://www.copyright.gov/carp/m200a.html). So, for instance, if a band wants to cover a particular musical composition they are obligated to obtain (which again generally means they must purchase) a non-exclusive license in said musical composition which is most often set by the current statutory rate.

Of course it is quite obvious that the mere fact of owning an interest in a copyrighted work (be it the musical composition or the sound recording) does not ‘entitle’ one to any profit and it clearly does not ‘insulate' artists 'against failure.’ If you actually hope to make money off of your copyrighted works you have to create market demand, and even if you succeed in creating demand you still face an uphill battle in monetizing a particular copyright due to the ubiquity of pirating and the virtually de minimus revenue generated by services such as Spotify. While perfecting ones interest in a copyrightable work is not a silver bullet to the DIY artists’ financial woes, understanding the basics of copyright law as it applies to musical compositions and sound recordings does arm the artist with another arrow in their professional quiver.

February 22 | Unregistered CommenterDaniel Turner

@Daniel - I don't think we're in disagreement, really. It's just that I see copyright as just a tool in my box, something I can use in different ways depending on the situation. It's not the ideal strategy for everyone or even that it's going to remain the best for me; it's just that it's working well for me, as an artist (in photography and music) to think of copyright as something that allows me to have and to benefit sometimes unexpectedly from all kinds of licensing strategies, not just one "charge as much as you can, for as much as you can" option that everyone thinks they have to default to. That aspect of copyright law is something I would like to see more widely understood, even though I'm sure it isn't what some folks want to hear.

I've been more successful and more inspired to create since I licensed some of my work for free noncommercial distribution a little over a year ago. Since then, after years of struggle, things really started going my way. One of my photos, one I didn't expect would ever get much notice, just got selected for a prestigious exhibit in Berlin. And my music, the only physical copies of which never sold enough to earn out my advance, has gone from zero exposure to regular plays, one commercial licensing deal, and the positive feedback I've received has spurred me to create more. Am I making money? Not really, but I had nowhere to go but up anyway, and I consider myself a successful artist since my work is "out there" making a difference. I now have a small base to build on, and I also know I'll need to ramp up production and marketing and keep getting better and more creative, if profitability is my goal. So there's still some obvious business opportunity there for myself and others.

February 27 | Unregistered CommenterOphelia Millais

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