MUSIC COPYRIGHT · 2006. 4. 27. · From the outset, the goal of Congress was to seek a balance of interests between copyright owners and users.1 This search for balance and fairness

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MUSIC COPYRIGHT

Music is spiritual. The music business is not.

—Van Morrison

Every serious student of copyright should acquire a complete copy of theCopyright Act, together with other special publications and bulletins relatingto copyright. In addition to the act (Circular 92), Circular R1 (Copyright Basics),and Circular R50 (Copyright Registration for Musical Compositions) are espe-cially useful. These documents are available, without charge, from the Registerof Copyrights, Copyright Office, Library of Congress, Washington, D.C. 20559,or by calling the Forms Hotline (24 hours a day) at (202) 707–9100. They arealso available on the Copyright Office Web site at www.copyright.gov. TheCopyright Office Public Information Office number is (202) 707–3000. If legaladvice or other expert assistance is required, the services of a competentprofessional should be sought.

BACKGROUND j

Congress enacted the first U.S. copyright law in 1790, under the authority ofArticle I, Section 8 of the Constitution, which states, “The Congress shall havepower . . . to promote the Progress of Science and useful Arts, by securing forLimited Times to Authors and Inventors the Exclusive Right to their respectiveWritings and Discoveries.” Comprehensive revisions were enacted in 1831, 1870,and 1909. The current copyright act was enacted by Congress in 1976 (U.S. Code,Title 17, Copyrights) and became generally effective on January 1, 1978.

The United States became a party to the Universal Copyright Conventionin 1955, and in 1989 it became a party to the Berne Convention. Accession to thesetreaties helped the United States to enhance the protection of its copyrightsinternationally as well (in Part VIII, see “International Copyright”).

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From the outset, the goal of Congress was to seek a balance of interests betweencopyright owners and users.1 This search for balance and fairness took place underthe watchful eye and with the vigorous participation of a number of specialinterest groups representing the motion picture, music, radio, and TV industries aswell as educators, librarians, the cable industry, and other public interest groups.And when ultimately enacting the 1976 Copyright Act, Congress stated its intentthat the implementation of the law “would minimize any disruptive impact on thestructure of the industries involved and on generally prevailing industry practices.”2

The 1976 act has been interpreted in widely varying ways by the differentcourts, and it is useful to remember that copyright law involves not only examin-ing the “letter of the law” but developing persuasive interpretations of the statute.In addition, copyright law can develop through new laws written by Congress andthrough interpretations by the courts in current cases and based on legal precedent(the decisions in previous court cases). The ultimate authority for the law is, how-ever, the U.S. Constitution.

Before viewing the entire landscape of copyright law, it is necessary to becomefamiliar with the law’s basic terms and provisions.

j ESSENTIAL PROVISIONS

Following are seven essential provisions of the 1976 act and subsequent amendments:

1. The statute preempts nearly all other copyright laws—both statutory andcommon law. Therefore, only the federal Copyright Act can provide pro-tection for most types of works. One notable exception is pre-1972 soundrecordings, which are still protected under state law.

2. Duration of copyright was lengthened and now conforms more closely topractices prevailing throughout most of the rest of the world: life of theauthor plus 70 years.

3. Performance royalties are not paid to copyright owners of sound record-ings except for certain performances by digital transmission over theInternet. Musical works (the underlying song and lyrics) earn performanceroyalties for broadcasts and live performances, however, in addition to dig-ital transmissions.

4. Public broadcasters, cable systems, and jukebox operators were compelledto start paying for the use of copyrighted music, as were schools and col-leges. A by-product of accession to the Berne Convention in 1989 wasamendment of the copyright act to provide for negotiated licenses betweenjukebox operators and music copyright owners (through performing rightsorganizations) rather than the statutorily mandated compulsory licenses.

84 PART II j SONGWRITING, PUBLISHING, COPYRIGHT


5. Congress codified the principles previously enunciated in case law as towhat constitutes the “fair use defense” to otherwise infringing activity. Fourdiscrete factors are to be considered by the courts in determining theapplicability of the fair use defense, and courts may also look to otherfactors as appropriate to a particular case.

6. Policies and rates of music use licenses were to be periodically reexamined.

7. Some formal procedures, such as copyright notice and renewal, weretreated more permissively, and others were eliminated entirely.

KEY TERMS j

An understanding of copyright depends on awareness of how the current lawdefines its terms. Most of the definitions that follow are quoted directly fromSection 101 of the Copyright Act. (Language not relating to music has beendeleted.)

“Audiovisual works” are works that consist of a series of related images which areintrinsically intended to be shown by the use of machines or devices such as pro-jectors, viewers, or electronic equipment, together with accompanying sounds, ifany, regardless of the nature of the material objects, such as films or tapes, in whichthe works are embodied.

The “best edition” of a work is the edition, published in the United States at anytime before the date of deposit, that the Library of Congress determines to be themost suitable for its purposes.

A “collective work” is a work, such as a periodical issue, anthology, or encyclope-dia, in which a number of contributions, constituting separate and independentworks in themselves, are assembled into a collective whole.

A “compilation” is a work formed by the collection and assembling of preexistingmaterials or of data that are selected, coordinated, or arranged in such a way thatthe resulting work as a whole constitutes an original work of authorship. The termcompilation includes collective works.

“Copies” are material objects, other than phonorecords, in which a work is fixedby any method now known or later developed, and from which the work can beperceived, reproduced, or otherwise communicated, either directly or with the aidof a machine or device. The term copies includes the material object, other than aphonorecord, in which the work is first fixed.

Chapter 5 j Music Copyright 85


“Copyright owner [proprietor],” with respect to any one of the exclusive rightscomprised in a copyright, refers to the owner of that particular right.

A work is “created” when it is fixed in a copy or phonorecord for the first time;where a work is prepared over a period of time, the portion that has been fixed atany particular time constitutes the work as of that time, and where the work hasbeen prepared in different versions, each version constitutes a separate work.

A “derivative work” is a work based on one or more preexisting works, such as atranslation, musical arrangement, dramatization, fictionalization, motion pictureversion, sound recording, art reproduction, abridgment, condensation, or anyother form in which a work may be recast, transformed, or adapted. A work con-sisting of editorial revisions, annotations, elaborations, or other modificationsthat, as a whole, represent an original work of authorship is a derivative work.

A “device,” “machine,” or “process” is one now known or later developed.

A “digital phonorecord delivery”3 is each individual delivery of [the sound embod-ied in] a phonorecord by digital transmission of a sound recording which resultsin a specifically identifiable reproduction by or for any transmission recipient of aphonorecord of that sound recording, regardless of whether the digital transmis-sion is also a public performance of the sound recording or any nondramatic musi-cal work embodied therein. A digital phonorecord delivery does not result froma real-time, nonintegrated subscription transmission of a sound recording whereno reproduction of the sound recording or the musical work embodied therein ismade from the inception of the transmission through to its receipt by the trans-mission recipient in order to make the sound recording audible.

To display a work means to show a copy of it, either directly or by means of a film,slide, television image, or any other device or process or, in the case of a motionpicture or other audiovisual work, to show individual images nonsequentially.

An “establishment” is a store, shop, or any similar place of business open to thegeneral public for the primary purpose of selling goods or services in which themajority of the gross square feet of space that is nonresidential is used for thatpurpose, and in which nondramatic musical works are performed publicly.

A work is “fixed” in a tangible medium of expression when its embodiment in acopy or phonorecord, by or under the authority of the author, is sufficiently per-manent or stable to permit it to be perceived, reproduced, or otherwise communi-cated for a period of more than transitory duration. A work consisting of sounds,images, or both that are being transmitted is “fixed” for purposes of this title if afixation of the work is being made simultaneously with its transmission.



A “food service or drinking establishment” is a restaurant, inn, bar, tavern, or anyother similar place of business in which the public or patrons assemble for theprimary purpose of being served food or drink in which the majority of the grosssquare feet of space that is nonresidential is used for that purpose and in whichnondramatic musical works are performed publicly.

To “perform” a work means to recite, render, play, dance, or act it, either directlyor by means of any device or process, or in the case of a motion picture or otheraudiovisual work, to show its images in any sequence or to make the soundsaccompanying it audible.

“Phonorecords” are material objects in which sounds, other than those accompany-ing a motion picture or other audiovisual work, are fixed by any method now knownor later developed, and from which the sounds can be perceived, reproduced, or oth-erwise communicated, either directly or with the aid of a machine or device. Theterm phonorecord includes the material object in which the sounds are first fixed.

A “pseudonymous work” is a work on the copies or phonorecords of which theauthor is identified under a fictitious name.

“Publication” is the distribution of copies or phonorecords of a work to the publicby sale or other transfer of ownership, or by rental, lease, or lending. The offeringto distribute copies or phonorecords to a group of persons for purposes of furtherdistribution, public performance, or public display constitutes publication. Apublic performance or display of a work does not of itself constitute publication.

To perform or display a work “publicly” means

1. To perform or display it at a place open to the public or at any place wherea substantial number of persons outside of a normal circle of a family andits social acquaintances are gathered; or

2. To transmit or otherwise communicate a performance or display of thework to a place specified by clause (1) or to the public, by means of anydevice or process, whether the members of the public capable of receivingthe performance or display receive it in the same place or in separate placesand at the same time or at different times.

“Registration” means a registration of a claim in the original or the renewed andextended term of copyright.

“Sound recordings” are works that result from the fixation of a series of musical,spoken, or other sounds, but not including the sounds accompanying a motionpicture or other audiovisual work, regardless of the nature of the material objects,such as discs, tapes, or other phonorecords, in which they are embodied.



A “transfer of copyright ownership” is an assignment, mortgage, exclusive license,or any other conveyance, alienation, or hypothecation of a copyright or of any ofthe exclusive rights comprised in a copyright, whether or not it is limited in timeor place of effect, but not including a nonexclusive license.

A “transmission program” is a body of material that, as an aggregate, has been pro-duced for the sole purpose of transmission to the public in sequence and as a unit.

To “transmit” a performance or display is to communicate it by any device or processwhereby images or sounds are received beyond the place from which they are sent.

A “work made for hire” is (a) a work prepared by an employee within the scope ofhis or her employment; or (b) a work specially ordered or commissioned for useas a contribution to a collective work, as a part of a motion picture or other audio-visual work, as a translation, as a supplementary work, as a compilation, as aninstructional text, as a test, as answer material for a test, or as an atlas, if the par-ties expressly agree in a written instrument signed by them that the work shall beconsidered a work made for hire. For the purpose of the foregoing sentence, a“supplementary work” is a work prepared for publication as a secondary adjunctto a work by another author for the purpose of introducing, concluding, illustrat-ing, explaining, revising, commenting upon, or assisting in the use of the otherwork, such as a musical arrangement.

j COVERAGE

Copyright protection does not extend to ideas themselves, but only to the expres-sion of those ideas. This important distinction prevents someone from legallyprotecting the idea of “reggae music,” for example. A particular expression (e.g., areggae song by Ziggy Marley) may be protected, but the idea itself (the beat, thegeneral concepts defining the genre, etc.) cannot. This allows the normal develop-ment of musical forms, which typically involves heavy borrowing from othersources, but prohibits exploitation of a particular artist’s expression of an idea.

Copyright protection is granted to original works of authorship. Such worksmust be “fixed in any tangible medium of expression, from which they can be per-ceived, reproduced, or otherwise communicated, either directly or with the aid ofa machine or device. Works of authorship include the following categories:4

• Literary works• Musical works, including any accompanying words• Dramatic works, including any accompanying music• Pantomimes and choreographic works• Pictorial, graphic, and sculptural works• Motion pictures and other audiovisual works



• Sound recordings• Architectural works

The works listed above are subject to protection under the law even if unpub-lished, without regard to the nationality or domicile of the author.

Copyright protection can cover compilations and derivative works as well. Butthis protection does not extend to any part of a compilation or derivative work inwhich such material has been used unlawfully. Also, copyright in compilations andderivative works extends only to the material contributed by the author of suchwork (as distinguished from the preexisting material employed in the work) anddoes not imply any exclusive right in the preexisting material. The copyright incompilations and derivative works is independent of and does not affect or enlargethe scope, duration, ownership, or subsistence of any copyright protection in thepreexisting material.

Copyright does not extend to publications of the U.S. government. An indi-vidual may reproduce or quote from such publications without concern for copy-right infringement.

EXCLUSIVE RIGHTS j

Section 106 of the Copyright Act specifies six distinct exclusive rights vested inthe author of a protected work. Subject to certain limitations,5 the act states thatthe owner of copyright has the exclusive right to do and to authorize any of thefollowing:

(1) to reproduce the copyrighted work in copies or phonorecords;

(2) to prepare derivative works based upon the copyrighted work;

(3) to distribute copies or phonorecords of the copyrighted work to the publicby sale or other transfer of ownership, or by rental, lease, or lending;

(4) in the case of literary, musical, dramatic, and choreographic works,pantomimes, and motion pictures and other audiovisual works, to per-form the copyrighted work publicly;

(5) in the case of literary, musical, dramatic, and choreographic works, pan-tomimes, and pictorial, graphic, or sculptural works, including the indi-vidual images of a motion picture or other audiovisual work, to display thecopyrighted work publicly; and

(6) in the case of sound recordings, to perform the copyrighted work publiclyby means of a digital audio transmission.

These are often referred to as the bundle of rights.



j FAIR USE OF COPYRIGHTED MATERIAL

In passing the current legislation, Congress attempted to reconcile the rightfulinterests of the copyright owners with the legitimate, nonprofit interests of indi-viduals, schools, libraries, religious houses of worship, and noncommercial broad-casters in using copyrighted material. Much of the act, particularly Sections 107through 112, concerns the limitations of these rights.

Since the 19th century, the courts have held that certain kinds of uses ofcopyrighted material are “fair,” within reason, and not an infringement or mate-rially damaging to a copyright owner. This tradition was validated and codified,to a large extent, in the 1976 law. This law offers examples of what constitutesfair use.6

The fair use of a copyrighted work, including such use by reproduction incopies or phonorecords, or by any other means specified by Section 106 of thelaw, for purposes such as criticism, comment, news reporting, teaching (includingmultiple copies for classroom use), scholarship, or research, “is not an infringe-ment of copyright.” In determining whether the use made of a work in any partic-ular case is a fair use, four criteria have been established by prior court actions andare incorporated in the new law:

1. The purpose or character of the use, including whether such use is of acommercial nature or is for nonprofit educational purposes

2. The nature of the copyrighted work

3. The amount and substantiality of the portion used in relation to the copy-righted work as a whole

4. The effect of the use on the potential market for or value of the copyrightedwork

The fair use doctrine, a legal defense to a copyright infringement claim, essen-tially allows minimal takings of copyrighted material for the furtherance of pur-poses such as scholarship, research, and news reporting. Even within these favoredareas, however, any substantial taking is likely to be looked upon by the court as aninfringement.

Some analysts point out a potential conflict between broad First Amendmentfree speech rights and the more limited fair use doctrine of copyright law.Although copyright law provides an incentive for authorship, some critics say itgives creators monopoly rights that may conflict with public interest in the dis-semination of information. A counterargument runs that copyright protectionextending only to the expression of ideas (as opposed to the ideas themselves)allows free speech to flourish. In addition to fair use, which requires a case-by-case



analysis, the law also identifies certain kinds of performances that are alwaysconsidered to be exceptions to the copyright owner’s exclusive rights; theseperformances are not infringements:7

1. The performance or display of a work by instructors or pupils in the courseof face-to-face teaching activities of a nonprofit educational institution

2. Performance of a nondramatic literary or musical work, display of a work,by or in the course of a transmission, ifa. the performance or display is a regular part of the systematic instruc-

tional activities of a governmental body or a nonprofit educationalinstitution

b. the performance or display is directly related and of material assistanceto the teaching content of the transmission

c. the transmission is made primarily for reception in classrooms orsimilar places devoted to instruction

3. Performance of a nondramatic literary or musical work or of a dramatico-musical work of a religious nature in the course of religious services

4. Performance of a nondramatic literary or musical work (otherwise thanin a transmission to the public) without any direct or indirect purpose ofcommercial advantage and without payment of any fee or other compen-sation for the performance to any of its performers, promoters, or orga-nizers, ifa. there is no direct or indirect admission charge; orb. the proceeds, after deducting reasonable costs of production, are used

exclusively for educational, religious, or charitable purposes and not forprivate financial gain

5. Communication by an establishment of a transmission or retransmissionembodying a performance or display of a nondramatic musical workintended to be received by the general public, originated by a radio ortelevision broadcast station, or, if an audiovisual transmission, by a cablesystem or satellite carrier, if that establishment contains less than 3,750gross square feet, or, for those establishments containing more than 3,750gross square feet, if (1) their audio use is via 6 or fewer speakers with notmore than 4 in any one room, or (2) their audio/visual use is via notmore than 4 TVs, of which no more than 1 TV is in any room unless adirect charge is made to see or hear the transmission, or the transmissionthus received is further transmitted to the public. Those non-food serviceand beverage establishments that contain more than 2,000 gross squarefeet must meet the requirements of (1) and (2) above in order to beexempt.



6. Performance of a nondramatic musical work by a vending establishmentwhere the sole purpose of the performance is to promote the retail sale ofcopies or phonorecords of the work or of the devices used in performingthe work

j COPYRIGHT OWNERSHIP

Copyright ownership vests initially and exclusively in the author of the work.8 Thisownership includes the six exclusive rights under copyright (the bundle of rights).

Where there are multiple authors, these authors share ownership of the copy-right. In the popular song field, it is customary for the composer(s) of the musicto share ownership equally with the lyricist(s). Multiple authors may, however, setup, through a written agreement, disproportionate shares of ownership in a workin which they collaborated. Examples:

Composers’ Share (50%) Lyricists’ Share (50%)

Ex. 1 One composer: owns 50% One lyricist: owns 50%Ex. 2 First composer: owns 25% First lyricist: owns 25%

Second composer: owns 25% Second lyricist: owns 15%Third lyricist: owns 10%

Ownership Limitation

Ownership of copyright, or any of the exclusive rights under a copyright, isdistinct from ownership of any material object in which the work may be embod-ied, such as sheet music, discs, or tapes. Transfer of ownership of any such mater-ial objects in which the work is first fixed does not of itself convey any rights in thecopyrighted work embodied in these objects. Thus, the ownership of the physicalmaster tapes on which a song is recorded does not carry with it any ownership ofcopyright in the underlying song (see First Sale Doctrine below).

Collective Works

Copyright in each separate contribution to a collective work (such as an albumof songs) is distinct from copyright in the collective work as a whole and vests ini-tially in the author of the contribution. In the absence of an express transfer of thecopyright, the owner of the copyright in the collective work is presumed to haveacquired only the privilege of reproducing and distributing the contribution aspart of that particular collective work, any revision of that collective work, and anylater collective work in the same series.



Film Music

Copyright in music, and accompanying words, written for theatrical filmsand TV movies is often covered by the overriding copyright in the movie itselfas an audiovisual work; however, additional copyrights may preexist for music afilm producer licenses for inclusion in this production. In this kind of situation,the two copyrights coexist. The film producer would be required to obtain asynchronization license for use of the preexisting copyrighted music. But evenin this situation, the complete audiovisual work—the movie itself—could stillbe protected by a blanket copyright covering its particular combination ofcomponent parts.

TRANSFER OR ASSIGNMENT j

Although all six exclusive rights of authorship vest initially in the author(s) of awork, the law states that any or all of these rights may be transferred or assignedto other persons. As a matter of fact, most original copyright owners find it neces-sary to transfer or assign some or all of their rights to generate income from theirproperties. Some writers own their own publishing companies and recordinglabels, but the great majority assign publishing and recording rights to others, usu-ally through the granting of exclusive licenses (see Chapter 6). Transfers must bein writing to be effective, but nonexclusive licenses may be oral, or even impliedfrom conduct.

The law even permits subdivisions of individual rights. As explained elsewhere,this often occurs with publishing rights, where authors “split the publishing.”

Recordation of Transfer

As just noted, when copyright owners assign or grant an exclusive license forany of their copyrights, the action does not become valid until the parties (or theiragents) execute a written agreement confirming the transfer. This written instru-ment may then be filed with the Copyright Office in accordance with proceduresset by that office, although such filing is not necessary for the transfer to be effec-tive. Filers must also pay the specified fee. Following these actions, the CopyrightOffice issues a Certificate of Recordation.

This recordation serves to provide all persons with what lawyers call “con-structive notice” of the facts stated in the Certificate of Recordation.

Occasionally, a situation arises where two transfers are in conflict. In suchinstances, the first transfer to be properly executed prevails (see Title 17, Section205 for instructions for proper recordation).



Termination or Recapture

In the case of any work other than a work made for hire, the exclusive ornonexclusive “grant of a transfer” or license of copyright or any right under acopyright, executed by the author on or after January 1, 1978, is subject to termi-nation under conditions cited in section 203. The essential conditions cited thereare the following:

1. Termination of the grant may be effected at any time during a period of5 years beginning at the end of 35 years from the date of execution of thegrant; or

2. If the grant covers the right of publication of the work, the period beginsat the end of 35 years from the date of publication of the work under thegrant or at the end of 40 years from the date of execution of the grant,whichever term ends earlier.

3. Advance notice of intent to terminate must be in writing, signed by thenumber and proportion of owners of termination interests required underSection 203, or by their duly authorized agents, served upon the grantee orthe grantee’s successor in title. The notice shall state the effective date of thetermination, which shall fall within the 5-year period specified in Section203, and the notice shall be served not less than 2 or more than 10 yearsbefore that date. To be in effect, this notice must be recorded in theCopyright Office before the effective date of termination. An individualintending to file a notice of termination must comply with the form, con-tent, and manner of service prescribed by the Register of Copyrights.

4. Termination of a grant may be effected notwithstanding any agreement to thecontrary, including an agreement to make a will or to make any further grant.

5. Upon the effective date of termination, all rights under this title that werecovered by the terminated grant revert to the author(s).

6. Unless and until termination is effected under Section 203, the grant, if itdoes not provide otherwise, continues in effect for the term of copyrightprovided by law.

Section 203 thus establishes the outer limits of copyright assignability by pro-viding statutory termination guidelines. In practice, however, writers and publish-ers may negotiate a shorter term (typically, 1 to 5 years) to balance the writer’sinterest in recapturing copyrights that have not been effectively “worked” by thepublisher against the publisher’s interest in controlling the property long enoughto promote it.



In the case of any copyright subsisting in either its first or renewal term onJanuary 1, 1978, other than a copyright in a work made for hire, the exclusive ornonexclusive grant of a transfer or license of the renewal copyright or any rightunder it, executed before January 1, 1978, by an author or any statutory successors,is also subject to termination.

The termination of the grant may be effected at any time during a period of5 years beginning at the end of 75 years from the date copyright was originallysecured. Termination of the grant may be effected notwithstanding any agreementto the contrary, including an agreement to make a will or to make any future grant.

WORK MADE FOR HIRE j

The term work made for hir 9 has special meaning under copyright law and is ofoverriding significance to composers, publishers, and movie producers. Whenevera composer is engaged on a work-made-for-hire basis, the employer is consideredunder the law as the author of any resulting creative work. And the “author,” undercopyright law, is thus the owner of the works.

In music, this arrangement was first fully developed in the 1920s and 1930s inthe Tin Pan Alley days, when large publishing companies employed salaried song-writers to work in-house on a full-time basis. Songwriters today typically operateas independent contractors with much less supervision.

Occasionally, however, a music publisher will attempt to claim authorshiprights in a work produced by a writer who is effectively working as an independentcontractor. If asked to sign a work-made-for-hire agreement, check with an attor-ney before signing.

Section 101 describes (but does not clearly define) conditions in which certain“creations” are to be considered works made for hire:

1. Work prepared by an employee within the scope of employment; or

2. Work specifically ordered or commissioned for use in one of several cate-gories, the most relevant for composers being “as part of a motion picture orother audiovisual work.” Even if the work falls into one of the defined cate-gories, the parties must sign an agreement saying the work is made for hire.

Some disputes center on the language of the first condition. To resolve these dis-putes, bills are periodically introduced in Congress that attempt to clarify the mean-ing of “employee” by, for example, attaching social security benefits and withholdingof taxes to the definition, as the courts have often required. The Supreme Courtspoke to the question of when a creative artist may be considered an employee, list-ing no less than 13 factors to be considered.10 The case dealt with whether ownership



of a sculpture rested with the sculptor or the group that commissioned its creation.Although the original court decision found for the organization, that decision wasreversed on appeal and the U.S. Supreme Court affirmed the reversal finding thesculptor to be the owner of copyright in the commissioned work.

j MUSICAL ARRANGEMENTS

Copyright law provides that the original holder of the copyright has the exclusiveright “to prepare derivative works based upon the copyrighted work.” Becausemusical arrangements are usually considered derivative (or supplementary) works,it is clear that arrangers must first obtain permission of the copyright owner beforescoring their own version of the material. In actual practice, this permission issought and granted only under particular circumstances, especially when the pro-posed arrangement might substantially alter or distort the original. In the record-ing industry, publishers are usually delighted that anyone is interested in recordingthe song in the first place and welcome the potential exposure and income thatresult from a cover record. Most publishers issue a negotiated mechanical license(see Chapter 6) to record one of their properties. Implicit in this license is theunderstanding that the record producer may create a new arrangement consistingof small changes that will suit the style of the recording artist. Copyright law pro-vides that when a compulsory (mechanical) license is issued, that license “includesthe privilege of making a musical arrangement of the work to the extent necessaryto conform it to the style or manner of interpretation of the performanceinvolved” for the recording. This industry practice is not so much a specific per-mission to create such an arrangement as it is a tacit agreement by the publishernot to raise any objection to it.

With respect to arrangements made primarily for educational use, many pub-lishers give their approval by accepting the standard form, Request for Permissionto Arrange. The fine print on this form states that the publisher owns the arrange-ment made and limits its use.

Arrangers’ Rights

Most people in the music business understand that the role of the musicarranger is often at least as creative as that of the original composer of the song.Arrangers usually create work for hire—receiving a flat, one-time fee based on theAmerican Federation of Musicians (AFM) scale for “orchestration,” or whateverthe traffic will bear. Except for work on music in the public domain, arrangers whowork under such agreements generally enjoy no rights of copyright ownership andreceive no royalties from record sales, nor do they share in income generated forcomposers and publishers from licensing of performances of their arrangements.



Public Domain

A different condition prevails when an arranger creates an original chart of awork in the public domain. The arranger’s publisher of such material may demandand receive mechanical royalties from producers of recordings, then usually splitsone half of such receipts with the arranger. In respect to performance income,ASCAP, BMI, and SESAC are accustomed to paying (often reduced) royalties toauthors and publishers of arrangements based on works in the public domain.Arrangers of works in the public domain may also receive royalties from theirpublisher’s sale of printed editions.

Arrangers are accorded more privileges in certain European countries. There,arrangers are not always required to secure publishers’ approval to render newarrangements of copyrighted material. Furthermore, arrangers in some Europeancountries are often accorded parallel rights, which provide a share of royaltiesderived from mechanical licensing and performances of their charts.

SOUND RECORDINGS j

One potentially confusing aspect of the 1976 Copyright Act and subsequentamendments is that a musical work (the underlying song with lyrics) is categori-cally differentiated from a sound recording (see definitions at the beginning ofthis chapter). The recording company typically holds the copyright in the soundrecording, while the publisher holds the copyright in the musical work. These twoentities may be divisions of the same company.

Section 114 states that the copyright owner of a sound recording has theseexclusive rights:

1. To reproduce the copyrighted work to duplicate the sound recording in theform of phonorecords (or copies of motion pictures and other audiovisualworks). Note that this right is limited to duplicating the actual sounds fixedin the recording.

2. To prepare derivative works based on the copyrighted material—to makeand distribute phonorecords that are new arrangements or versions of thecopyrighted work (sound recording).

3. To distribute phonorecords to the public by sale or other transfer of own-ership, or by rental, lease, or lending, or by digital phonorecord delivery(downloading).

4. To perform by digital audio transmission.



Performance Right Exclusion

The 1976 law and subsequent amendments specifically excluded performancerights in sound recordings, and generally speaking, sound recordings still do notenjoy a full performance right. Thus, except for the performance right relative todigital transmission of sound recordings discussed below, owners of sound record-ings do not receive performance royalties when music from sound recordings isbroadcast or otherwise performed. This exclusion is one of the most significantand controversial sections of the law. The United States is out of step with othercountries in this respect: More than 50 Western countries have laws providing forcollection of such royalties, or the broadcasters voluntarily pay them.

Congress debated the issue at length, but the strong lobby representing broad-casters persuaded Congress to exclude payment of performing fees for soundrecordings.

Hopeful of eventual victory, performing artists and recording companiescontinued their lobbying efforts until they finally succeeded in passing a limitedperformance right for sound recordings in 1995. This right requires certain digitalmusic transmission services, or Webcasters, to pay royalties when they transmitsound recordings over the Internet.

Imitation Exclusion

The exclusive rights of the owner of copyright in a sound recording withrespect to the preparation and reproduction of derivative works do not extend tothe making or duplicating of another sound recording that consists entirely of anindependent fixation of other sounds, even though such sounds imitate or simu-late those in the copyrighted sound recording. In other words, imitations thatmimic the original recording are legally permissible, but the imitative recordingcannot simply be a recorded copy of the original. Furthermore, it is not legal tomarket the mimicked recordings as if they feature the original artists or in any waythat might confuse the public.

j COMPULSORY MECHANICAL LICENSE

One of the most important copyright provisions concerns the conditions underwhich a person is permitted to produce and distribute phonorecords of nondra-matic musical works. The law provides that copyright owners of nondramaticmusic have complete control over recording rights of their properties until theylicense the material for the first recording. But after this first recording is distrib-uted to the public, they are compelled by law to license any other person to produceand distribute recordings of the copyrighted music in exchange for a fixed statutoryroyalty, which is adjusted periodically. This provision stems in part from an impor-tant goal in copyright law: the increased dissemination of works to the public.



According to Section 115, copyrighted songs become “subject to compulsorylicensing” after they have been released on record for the first time. This kind oflicensing requires special conditions, the most important of which are

1. “A person may obtain a compulsory license only if the primary purposein making phonorecords is to distribute them to the public for private use,including by means of a digital phonorecord delivery.” This sentence is verysignificant and clearly excludes from compulsory licensing all recordingsthat are generally classified under the term transcriptions. In the music field,that term is not applied to phonorecords intended for purchase and use bythe public but to discs or tapes leased or sold for special uses, such as thememusic for broadcast programs or wired music services such as Muzak.

2. “A person may not obtain a compulsory license for use of the work in themaking of phonorecords duplicating a sound recording fixed by another,unless (i) such sound recording was fixed lawfully; and (ii) the making ofthe phonorecords was authorized by the owner of copyright in the soundrecording or, if the sound recording was fixed before February 15, 1972[the date when sound recordings first became subjects of statutory copy-right protection in this country], by any person who fixed the soundrecording pursuant to an express license . . . for use of such work in asound recording.” [The purpose of this provision was to prevent piratesand counterfeiters from availing themselves of the compulsory license.]

3. “A compulsory license includes the privilege of making a musical arrange-ment of the work to the extent necessary to conform it to the style or man-ner of interpretation of the performance involved.” But the law also statesthat the arranger shall not change the basic melody or fundamental char-acter of the work. Furthermore, the new arrangement shall not be subjectto protection as a derivative work, except with the express consent of thecopyright owner.

4. The person planning to obtain a compulsory license must notify the copy-right proprietor of this intention before or within 30 days after making,and before distributing, any phonorecords of the work. If the person can-not locate the owner of the work, “it shall be sufficient to file notice ofintention in the Copyright Office.” Failure to serve or file notice foreclosesthe possibility of a compulsory license and, in the absence of a negotiatedlicense, renders the making and distribution of phonorecords actionable asacts of infringement.

Compulsory License Bypass

Compulsory mechanical license provisions in the copyright statute are sostringent, particularly in respect to notice and accounting requirements, that the



industry typically uses an alternative, the negotiated mechanical license. Thisalternative kind of license is permitted by law and is explained in Chapter 6.

j ROYALTY PAYMENTS (SECTION 115[C])

After permitting the initial recording of a song, publishers are limited as a practi-cal matter by the statute as to what royalty rate they may charge record makers.The statutory rate provided in the 1976 act was “2.75 cents, or one-half of one centper minute of playing time or fraction thereof, whichever amount is larger” foreach work embodied in a phonorecord. By 2004, this “statutory rate” increasedto 8.5 cents or 1.65 cents per minute, whichever amount is larger, and continuesto rise periodically. The rates for 2006, for example, rose to 9.1 cents or 1.75 centsper minute.

To be entitled to receive royalty payments under a compulsory license, thecopyright owner must be identified in the registration or other public records ofthe Copyright Office. The owner is entitled to royalties for phonorecords madeand distributed after being so identified but is not entitled to recover for anyphonorecords previously made and distributed.

Except as provided above, the royalty under a compulsory license shall bepayable for every phonorecord made and distributed in accordance with thelicense. “For this purpose, . . . a phonorecord is considered ‘distributed’ if the per-son exercising the compulsory license has voluntarily and permanently partedwith its possession.” This language helps reduce the ambiguity prevalent until 1978relative to liability for royalty payments. It appears that the manufacturer is notliable for royalty payments on records returned to it that have not been sold, forsuch records did not leave the manufacturer’s possession permanently, as the lawprovides. “Giveaways” such as free goods and promotional copies do, however,trigger royalty payments, as the definition doesn’t require a sale.

j DURATION OF COPYRIGHT

Copyright protection obtained prior to enactment of the 1976 act could last nomore than a total of 56 years: a 28-year initial term, followed by an optional 28-year renewal term. Under section 302 of the Copyright Act, copyright in a workcreated on or after January 1, 1978, lasts for 70 years from the author’s death.

In 1998, the Sonny Bono Copyright Term Extension Act (named after singer-turned congressman Sonny Bono) added 20 years to the term of protection ofworks protected by copyright. A song that had previously been protected for thelife of the author plus 50 years was protected after 1998 for the life of the authorplus 70 years (see Table 5.1).




Subsisting Copyrights in TheirFirst Term on January 1, 1978 (Section 304)

Copyrights still in their first terms continue, under the 1976 law, for their orig-inal 28 years. At the expiration of the original term of copyright, the copyright shallendure for a renewed and extended further term of 67 years, which

1. if the application to register a claim to such further term has been made tothe Copyright Office within 1 year before the expiration of the original termof copyright, and the claim is registered, shall vest in the proprietor of thecopyright who is entitled to claim the renewal of copyright at the time theapplication is made; or

TABLE 5.1. Duration of Copyright Term After Sonny Bono Act

Date of Work When Protection Attaches Term of Protection

Created in 1978 or later Upon fixation Unitary term of life + 70 (or if anonymousor pseudonymous or work for hire, 9 yearsfrom publication or 120 years fromcreation, whichever is shorter)

Publisheda or Upon registration or 95 years (28 + automatic 67-year renewal)registered 1964–1978 publication with notice

Published or registered Upon registration or 28 years + 67 years renewal term, if 1923–63 publication with notice renewal was made before end of first term

Published or registered Upon registration or Work is now in the public domain;before 1923 publication with notice although term of protection is now 95 years

for works covered in the 1909 Act, worksmade from 1922 and earlier were alreadypublic domain in 1998 when Sonny BonoAct was passed, and the act does not revivethem. Thus, status cannot be determinedsimply by counting back 95 years frompresent date.

Created but never Upon creation Unitary term of at least life + 70; earliestpublished before 1978 possible expiration is 12/31/2002, if work

remains unpublished. If work is publishedprior to 12/31/2002, earliest possibleexpiration is 12/31/2047.

Source: Adapted by Robert Clarida, Partner, Cowan, Liebowitz & Latman, from chart on p. 275 of Latman, A., Gorman,R. & Ginsburg, J. (1989). Copyright for the Nineties. Charlottesville, VA: Michie.

a. To start the term running, the publication must be authorized by the copyright owner. An unauthorized publication,even with notice, has no legal effect.


2. if no such application is made or the claim is not registered, shall vest, uponthe beginning of such further term, in the person or entity that was the pro-prietor of the copyright as of the last day of the original term of copyright.

Renewal Registration

As the result of a 1992 renewal amendment to the Copyright Act, there is nolonger a requirement to register a renewal of a pre-1978 copyright during the 28thyear to keep the work from falling into the public domain. It is, however, advisableto make such renewal registration to enhance the enforceability of the copyrightduring its renewed and extended term. Renewal registration will also determinewho has the right to use derivative works prepared under a grant of a transfer orlicense made before the expiration of the original term.

Subsisting Copyrights in Their Renewal Term

As Congress stated, the 1976 law creates an entirely new property right in therenewal term. The 1909 law provided a maximum of only 56 years of protectionfor pre-1978 works, which was later extended to 75 years by the original 1976 act.The current law provides, for these works, a total of 95 years of protection. Themonetary value of many old, standard popular songs is high and, for this reason,authors and publishers have an interest in establishing claims on the additional20 years of protection that Congress has granted for these works.

After 75 Years

Properties whose 75-year protection would otherwise expire under the original1976 act are, under the new amendments, automatically granted copyright protec-tion for a total of 95 years. If a writer wants to recapture a composition from a pub-lisher to whom the renewal term has been assigned, the writer may, within a 5-yearperiod following the original 75-year protection, terminate the grant of renewalterm to the publisher by serving a notice of termination. This notice of terminationmust be given to the publisher not less than 2 years or more than 10 years ahead ofthe termination date decided on by the author. Once an author has thus reclaimedthe publisher-owned renewal copyright, ownership by the author is free and clear.Failure to exercise the option to terminate within the 5-year period will permit acopyright to remain with the publisher to the end of the renewal period.

After January 1, 1978

Copyright protection in works created on or after January 1, 1978, extends toa work from its creation and, except as provided under certain conditions, enduresfor a term consisting of the life of the author and 70 years after the author’s death.



Joint Works. Where two or more authors prepared a joint work (and did not dothe work for hire), they enjoy copyright for a term consisting of the life of the lastsurviving author and 70 years after such surviving author’s death.

Work Made for Hire. In a work made for hire, copyright exists for 95 years fromthe date of its first publication, or a term of 120 years from the year of its creation,whichever expires first. Works made for hire are not included in the provisionsconcerning termination of grants for the 20-year extension period.

Works in the Trunk (Section 303)

Copyright in a work created before January 1, 1978, but not theretofore in thepublic domain or copyrighted, subsists from January 1, 1978, and endures for thelife of the author and 70 years after the author’s (or coauthor’s) death. “In no case,however, shall the term of copyright in such a work expire before December, 2002;and, if the work is published on or before December 31, 2002, the term of copy-right shall not expire before December 31, 2047.”11

FORMALITIES j

The term formalities is used around the world in reference to the specific actionsa claimant must take to validate claim to copyright.12 These formalities includenotice of copyright, deposit of copies, and registration of claim to copyright. The1976 law is permissive in respect to some kinds of mistakes in following throughon formalities. After March 1, 1989 (the effective date the United States joinedthe Berne Convention), these formalities for U.S. works became almost entirelyoptional. But to be on the safe side, claimants should put a proper notice on copy-righted material (see below).

Notice on Printed Music

The term notice of copyright refers to the public display of information con-cerning the date the work was published and who registered the claim. On printededitions, the law stipulates

1. Notice may be placed on all publicly distributed copies. The noticeimprinted should be the symbol © or the word Copyright or the abbrevia-tion Copr. and the year of first publication of the work. The type of noticemost often seen is this:

© 2005 John Doe



Although not required by the Copyright Act, the language “All RightsReserved” should also accompany the statutory notice to provide addi-tional protection in some foreign countries under the Pan-AmericanConvention.

2. In the case of compilations or derivative works incorporating previouslypublished material, the year of the first publication of the compilation orderivative work is sufficient.

3. The notice must also include the name of the copyright owner. A recogniz-able abbreviation of the owner’s name may be used.

4. The position of the notice shall be affixed to the copies so as to give rea-sonable notice of the claim to copyright.

Notice on Phonorecords (Section 402)

Whenever a sound recording protected under the 1976 law is published in theUnited States or elsewhere by authority of the copyright owner, a notice may beplaced on all publicly distributed phonorecords of the sound recording. It is stillprudent to do this. The form of the notice consists of three elements:

1. The symbol

2. The year of the first publication of the sound recording, and

3. The name of the owner of the copyright in the sound recording. A recog-nizable abbreviation may be used. If the producer of the sound recordingis named on the phonorecord labels or containers, and if no other nameappears in conjunction with the notice, the producer’s name shall be con-sidered a part of the notice.

Position of Notice. The notice shall be placed on the surface of the phonorecord,or on the phonorecord label or container, in such a manner and location as to givereasonable notice of the claim to copyright. A typical notice for a phonorecord is

2005 Smith Records

Audiovisual works do not require the symbol P but rather the symbol ©,because they are not phonorecords.

Notice Errors or Omissions

For works first published between January 1, 1978, and March 1, 1989, asdetailed in Sections 401, 402, and 403, omission of notice from copies or

P

P



phonorecords does not invalidate the copyright in a work (Section 405) under anyof the following conditions:

1. The notice has been omitted from no more than a relatively small numberof copies or phonorecords distributed to the public.

2. Registration for the work has been made before or is made within 5 yearsafter the publication without notice, and a reasonable effort is made to addnotice to all copies or phonorecords that are distributed to the public in theUnited States after omission has been discovered.

3. The notice has been omitted in violation of an express requirement inwriting that, as a condition of the copyright owner’s authorization of thepublic distribution of copies or phonorecords, they bear the prescribednotice.

Also for pre-Berne Convention works (prior to March 1, 1989), an error in thedate appearing in the copyright notice does not invalidate the copyright, for example,

1. When the year in the notice is earlier than the year in which the publica-tion first occurred, any period computed from the year of first publicationunder Section 302 is to be computed from the year of the notice.

2. When the year is more than 1 year later than the year in which the publi-cation first occurred, the work is considered to have been published with-out any notice and is governed by the provisions of Section 405.

Deposit (Section 407)

Deposit of works in the Library of Congress and registration of works areseparate formalities. The performance of neither action is a condition of copy-right, yet both are important. With respect to published copies, Section 407 statesthat the copyright owner (or the publisher) must deposit, within 3 months afterthe date of publication, two complete copies of “the best edition” of the work. Thedeposit for sound recordings shall include two complete phonorecords of the bestedition, together with any printed material or other visually perceptible materialpublished with such phonorecords. Under the Berne Convention, notice of copy-right is no longer required in deposit copies.

Under certain conditions, deposits made prior to any attempt to register thework may be used to satisfy the deposit requirements called for when the author(or the publisher) undertakes to register the work. If the author desires to havethe initial deposit satisfy the deposit requirements specified on the registrationforms, a letter must be enclosed with the initial deposit specifically directing theLibrary of Congress to hold those deposits for later connection with the author’s



registration application. If such a letter is not enclosed, the Copyright Office willrequire separate, additional deposits of a work, as specified on the registration form.

Congress has authorized modifications of deposit requirements from time totime, at the discretion of the Copyright Office. Although failure to deposit copiesor phonorecords according to current regulations does not actually endanger thecopyright, the Register of Copyrights does have the authority to demand copiesand fine the laggard up to $250 per work and levy additional fines up to $2,500 forwillful and repeated refusal to comply.

Registration (Section 408)

The law states that deposits and registration are “separate formalities,” but thislanguage can be confusing. The fact is that deposit can be made independentof registration, but registration of a claim to copyright must be accompanied bythe deposit specified on the application form. Also, the law states that registration“is not a condition of copyright.” But that language, too, can be misleading.Registration is strongly advised because, under certain conditions, an author’swork left unregistered lacks certain advantages the work would otherwise enjoy.Most important, a work must be registered before the copyright owner can sueanyone for infringement.

A work may be registered at any time during the term of the copyright,whether it is published or unpublished. The registration may generally be madeby the author as copyright owner or the publisher, as exclusive licensee.

The acceptance of sound recordings, not just sheet music, in claims to copy-right the underlying music was a significant advance over the 1909 law. Inthe popular music field, thousands of songwriters lack the ability to rendertheir material in music notation. Now all they have to do is make a simple taperecording and submit it in lieu of sheet music. The acceptance of sound record-ings also provides important advantages to persons desiring to copyright jazzimprovisations, many of which are not easily transcribed into conventionalmusic notation.

If the Register of Copyrights determines that all legal and formal require-ments have been met, the Register will send the applicant a certificate of regis-tration. If the claim is found invalid, the Register will refuse registration andnotify the applicant in writing of the reasons for such refusal. (The CopyrightOffice has formulated an appeal procedure for applicants whose claims havebeen found invalid.) The effective date of copyright registration is the day onwhich an application, deposit, and fee have all been received in the CopyrightOffice.

If the author or the author’s publisher made a mistake in an original registra-tion of claim, or if either party wants to modify it, the Register of Copyright hasestablished procedures and set fees to accommodate these matters.



Fees (Section 708)

The Copyright Office charges fees for certain services, such as registrationof claims and recordation of transfers. For current rates, contact the CopyrightOffice, Library of Congress, Washington, D.C. 20559, or consult the CopyrightOffice Web site.

Copyright Royalty Tribunal andCopyright Arbitration Royalty Panel

The 1976 Copyright Act provided for the establishment of an instrumentalityof the Congress to serve that legislative body in matters concerning copyright.That instrumentality was the Copyright Royalty Tribunal (CRT). The CRT set andperiodically adjusted royalty rates and held hearings to determine whether ratesand royalty distribution were fair and equitable.

The CRT was abolished in 1993 and replaced with ad hoc CopyrightArbitration Royalty Panels (CARPs) administered by the Librarian of Congressand the Copyright Office. If parties cannot come to agreement, a CARP may beimpaneled to make determinations concerning the adjustment of royalty ratesand/or the distribution of royalties, including the following:

• Cable and satellite royalties• Ephemeral sound recording rates• Digital performance and phonorecord delivery royalties• Mechanical royalties• Jukebox royalties• Educational broadcasting royalties

INFRINGEMENT, REMEDY j

Copyright infringement is widespread, most of it going unnoticed and unpun-ished. Where infringement is “innocent” and of little or no financial consequence,courts may limit assessment of statutory damages (see below) to as little as $200.Where a library or school is involved with an infringement arising out of a lack offull understanding of the law, sometimes no damages at all are awarded.

Remedies. When infringements are not innocent offenses, the following remediesare available following a successful court action:

1. Injunction: A temporary or final injunction can be sought from any courthaving jurisdiction to prevent or restrain infringement of copyright.

2. Impoundment: The court may order impoundment of articles alleged tobe involved with infringement. The impoundment can hold pending court



determination of the merits of the claim of infringement. Impoundmentcould include printed copies, phonorecords, masters, even duplicating,manufacturing, and packaging equipment.

3. Destruction: The court could order, as part of a final judgment, destructionof inventories, such as printed copies and phonorecords.

4. Damages:a. The infringer is liable, except as the law otherwise provides, for (1)

actual damages suffered by the copyright owner as a result of theinfringement; and (2) any additional profits gained by the infringer as aresult of acts of infringement.

b. The copyright owner may elect, before final judgment is rendered, toseek statutory damages instead of actual damages and profits for allinfringements in a sum not less than $750 or more than $30,000, “as thecourt considers just.”

c. In a case where the copyright owner sustains the burden of proving, andthe court finds “that infringement was committed willfully, the court atits discretion may increase the award of statutory damages to a sum ofnot more than $150,000.” Lesser awards are made where the court findsthe infringer was not aware and had no reason to believe the actionsconstituted infringement, and even in cases of willful infringement, astatutory damage award is not supposed to provide a windfall for thecopyright owner.

d. Costs and attorneys’ fees may be recovered by the prevailing party, atthe court’s discretion. At today’s legal rates, this amount is usuallysubstantial.

e. Copyright owners may choose to sue for actual damages or statutorydamages and may change to the latter course at any time before finaljudgment of the court. In the dynamic music market, successfulartists with significant stakes at risk will often seek actual damages.Multimillion-dollar cases are not uncommon.

Neither statutory damages nor attorneys’ fees can be awarded, however, ifthe copyright was not registered before the infringement began. This is the mostimportant reason to register copyright in a work before making it available topotential infringers, whether within the music industry or the public at large.

j RECORD COUNTERFEITING, PENALTIES

The 1976 law imposed strong penalties for counterfeit use of the copyrightsymbol on phonorecords. Owners of copyrights in sound recordings complainedP



that the threat of fines and imprisonment were not adequate deterrents. The crim-inals appeared to view threatened sanctions simply as “the cost of doing business.”Subsequently, Congress strengthened the penalties by passing the Piracy andCounterfeit Act of 1982. This law made both piracy and counterfeiting a felony.Among its other provisions, the 1982 law provided a maximum penalty of a$250,000 fine and jail terms. A person would receive this maximum penalty iffound guilty of illegally manufacturing or distributing within a 180-day period atleast 10 copies or phonorecords or one or more copyrighted works with a retailvalue of more than $2,500.

The trend in the United States and abroad is toward increasing penalties forcopyright infringers.

CHANGING LAWS j

Laws governing copyright have never been able to keep abreast of changes in theway music is produced, communicated, bought, and sold. This time lag is mosthurtful to copyright owners in the matters of counterfeiting, home taping, tele-communications, direct satellite transmissions, or other alternative distributionvia the Internet, cable, or cellular technology. Michael Greene, president/CEO ofthe National Academy of Recording Arts & Sciences, addressed the problems ofinformation transfer by saying, “The rights of the creators must be protected from‘i-way’ robbers.”

As technological change thrusts new issues into the spotlight, two economiccoalitions traditionally line up against each other, trying to persuade Congress andthe courts to rule in their favor. On one side is the creative community: authors,composers, filmmakers, and those who hold copyrights on their creations—pub-lishers, recording companies, movie producers, and so on. Lined up against thecreative community are the users of copyrighted properties: broadcasters, hard-ware manufacturers, software merchants, and the consumer, who is understand-ably reluctant to pay for music uses and the royalties that may be demanded.

First Sale Doctrine

The principle of “first sale” was carried over from the 1909 statute to the 1976copyright law (Section 109[a]). Simply stated, the first sale principle provides thatthe copyright owner is entitled to compensation for the first sale of the copy orphonorecord embodying the copyrighted work. Thereafter, the owner of the phys-ical copy may dispose of it or transfer it as the owner sees fit, with only a few excep-tions. This provision, developed to facilitate dissemination of creative works,prevents copyright holders from exercising control (other than control over dupli-cating) over the product once it has left the distributors. This doctrine became thelegal basis for the video software rental business.



The Audio Home Recording Act of 1992

In 1992, Congress enacted the Audio Home Recording Act, which amended the1976 Copyright Act by allowing home audio taping and by implementing a royaltypayment system and a serial copy management system for digital audio recordings.As a direct result of the passage of this act, home taping is no longer an infringementof copyright, and certain additional copyright infringement actions were prohibited.

DEFINITIONS

1. A “digital audio copied recording” is a reproduction in a digital recording for-mat of a digital musical recording, whether that reproduction is made directlyfrom another digital musical recording or indirectly from a transmission.

2. A “digital audio interface device” is any machine or device designed specif-ically to communicate digital audio information and related interface datato a digital audio recording device through a nonprofessional interface.

3. “Serial copying” means the duplication in a digital format of a copyrightedmusical work or sound recording from a digital reproduction of a digitalmusical recording.

To prevent unauthorized digital copying, all digital audio recording devicesor interface devices must conform to the serial copy management system or otherapproved system that prohibits unauthorized serial copying. It is illegal to circum-vent such devices.

The importation, manufacture, and distribution of digital audio recordingdevices or interfaces that do not have a serial copy management system are pro-hibited. Persons who import, manufacture, and distribute such devices must payspecified royalties and must file statements with the Register of Copyrights.

Royalty Payments. Royalty payments made under this provision shall be distrib-uted to any interested copyright party whose musical work or sound recording hasbeen embodied in a digital or analog musical recording and distributed in theform of digital or analog recordings during the appropriate period and who hasfiled a claim for such payments.

Royalty payments shall be divided into two funds and paid to interested par-ties whose works have been embodied and distributed in digital or analog formatduring the appropriate period:

1. The Sound Recording Fund: 66.67% of royalties collected will be placed inthis fund and will be divided as follows:

2.625% for nonfeatured musicians on the recording

1.375% for nonfeatured vocalists on the recording



40% of the remaining royalty to featured recording artists

60% of the remaining royalty to owners of sound recordings

2. The Musical Works Fund: 33.33% of royalties collected will be placed inthis fund and will be divided as follows:

50% to publishers

50% to writers

RIGHTS IN NAMES AND TRADEMARKS j

Rights in trade names and trademarks are not covered under copyright law in thiscountry, but such rights are related. Company names and professional names ofperformers cannot be protected under copyright law but are covered under abroader branch of law concerning unfair competition. In some states, it is a crim-inal offense to infringe on someone else’s name or mark. (For more information,see the Federal Lanham Act, U.S. Code, Title 15.)

Individuals seeking federal registration of a name or mark must apply to theU.S. Patent and Trademark Office. Before proceeding, write to the GovernmentPrinting Office, Washington, D.C. 20402 (www.gpo.gov) for the pamphlet GeneralInformation Concerning Trademarks, and consult the Trademark Office Web siteat www.uspto.gov. Table 5.2 provides a summary of information regarding trade-marks, copyrights, and patents.

Selection of a Name

A new performing group should select its professional name with care to avoidduplication and possible confusion with another group using the same, or similar,name. Because most performing groups will have to register their professionalnames as “fictitious,” they may discover at their own county and state governmentlevels if any other group of performers in that geographic area has already regis-tered the same name or a similar one (for details, see Chapter 26, “Starting YourOwn Business”). To confirm the uniqueness of the group’s name on a nationallevel, the group should inquire of organizations such as artists’ unions, ASCAP,BMI, and SESAC. Libraries often have publications such as Index to the TrademarkRegister that can be consulted, as can the USPTO.gov Web site. In addition, thegroup’s attorney can provide the names of firms specializing in searches of thiskind and can offer guidance on time restrictions for any filing that might berequired under the Trademark Act.




Patents

New and usefulinventions andconfigurations of usefularticles.

Excludes others frommaking, using, offeringfor sale or selling theinvention in the U.S.or by importation intothe U.S.

Encourages and rewardsinnovation.

Apply for federal grant.

Protection for non-secretinventions.

Novelty, unobviousness,utility.

Optional. “Patent appliedfor” or “Pat. Pending”after application; “Patent”or “Pat.” plus registrationnumber after grant.

20 years from filing date(or sometimes 17 yearsfrom grant) for utility orplant patents, subject toperiodic maintenancefees; 14 years fromregistration for designpatents.

Trademarks

Commercial identifications ofsource such as words, designs,slogans, symbols, trade dress.

Protects against creating alikelihood of confusion ordiluting a famous mark.

Protects owners and publicfrom unfair competition.

Use mark in commerce orapply for federal registration.

Nationwide priority rights;possibly conclusive evidenceof validity and ownership; U.S.Customs recordation; increasedanticounterfeiting remedies.

(1) Bona fide intention to usein commerce followed byactual use; (2) non-U.S.owner’s country of originregistration or application filedwithin 6 months prior to U.S.application, or extension toU.S. of internationalregistration, plus bona fideintention to use in commerce;or (3) actual use in commerce.

Optional. “TM” or “SM” ifunregistered; “®” or “Reg. U.S.Pat. & Tm. Off.” if registered.

As long as used; registrationsmust be maintained by filinguse declaration beforeeach 6th and 10th anniversary;renewal required every10 years.

Nature

Scope

Purpose

How toobtain rights

Principaladvantages ofregistration

Basis forregistration

Noticerequirements

Term of rights

TABLE 5.2. Summary Table Comparing Trademarks, Copyrights, and Patents

Copyrights

Original literary andartistic expressions suchas books, paintings,music, records, plays,movies, software.

Protects againstunauthorized use orcopying.

Encourages and rewardscreative expression.

Create work and fixit in tangible form.Registration confirmsrights.

Statutory damages andattorney’s fees; primafacie evidence ofvalidity; U.S. Customsrecordation.

Originality

Optional after March 1,1989. © or “Copyright”with year of first publi-cation and name ofowner.

Creations afterJanuary 1, 1978:author’s lifetime plus 70years, or if anonymousor work made for hire,earlier of 95 years frompublication or 120 yearsfrom creation.


Rights in a Name

Performing groups should, at the very outset, draw up a written agreementthat explicitly states who owns the professional name, how the ownership isshared, and under what circumstances shares of ownership end or are modifiedwhen individual performers join or leave the group. Signing a basic agreement ofthis kind should help the artists avoid the kinds of costly lawsuits that have hurtless organized performing groups.

A FINAL NOTE ON LAW j

Just as knowing how the law protects you is vital to success in the music busi-ness, so is an understanding of when the law will not protect you. Copyright pro-tection extends to “expressions” but not “ideas.” Anyone who is consideringentering the recording and publishing part of the music and entertainmentindustry should be familiar with the Copyright Act, the Lanham Act, and issuesof unfair competition, rights of privacy, and First Amendment issues relatingto free speech. Contract law provides for additional remedies in manycircumstances. No matter how well you may understand the law, however, courtdelays and attorneys’ fees may effectively prevent access to a judicial decision onyour issue.


Patents

Issued patent required.

Unauthorizedmanufacture, use, sale,or offer for sale ofdevices or processesembodying the invention.

Usually granted on acountry-by-country basiswith centralized filingavailable under thePatent Cooperation Treatyor European PatentConvention.

Trademarks

Registration optional.

Likelihood of confusion,mistake or deception as tosource or sponsorship; ordilution by blurring ortarnishment.

1) Individual countries;(2) Community Trade Markregistration; or (3) MadridProtocol centralized filing.

Infringementprerequisites

Infringementstandard

Internationalprotection

Copyrights

Registration required forU.S. nationals; optionalfor foreign nationals.

Unauthorized use orcopying (access plussubstantial similarity).

Usually protectedwithout registrationthrough internationaltreaties.

Note: This summary is highly simplified and should be used only for a general comparison. A printed brochure includ-ing visual samples is available by snail mail. Please call (212) 790-9290 or e-mail [email protected] ©2003 Cowan,Liebowitz & Latman, P.C.


j NOTES

1. 1976 Copyright Act, Chapter 8. Section references throughout this chapter arefrom the 1976 act, unless otherwise noted.

2. 1976 Copyright Act, Chapter 8.3. This definition from Section 115(d).4. Section 102.5. As laid out in sections 107 through 122.6. Section 107.7. Section 110.8. Section 201.9. Section 201(b).

10. Community for Creative Non-violence v. Reid, 490 U.S. 730, 109 S.Ct. 2166, 104L.Ed.2d 811 (1989).

11. Section 303(a).12. Chapter 4 of the 1976 Copyright Act.



Documents

MUSIC COPYRIGHT · 2006. 4. 27. · From the outset, the goal of Congress was to seek a balance of interests between copyright owners and users.1 This search for balance and fairness