The Music Business – Part 3Copyright Basics

Presented by: Debra J. Fickler, Esq.

Copyrights17 USC § 101 et seq.

• 1 Subject matter and Scope of Copyright

• 2 Copyright Ownership and Transfer

• 3 Duration of Copyright

• 4 Copyright Notice, Deposit and Reg.

• 5 Copyright Infringement and Remedies

Copyright Subsists in Original Works of Authorship:

• Fixed in any tangible medium of expression

• Some minimal level of creativity is required

Copyright Protects:

• Written works, music, dramatic works, pantomimes and choreographic works, pictorial, graphic and sculptural works, motion pictures and other audiovisual works, sound recordings, architectural works and computer software– Compilations– Derivative works

Copyright does NOT protect:

• Works not been fixed in tangible form of expression

• Titles, names, short phrases and slogans; familiar symbols or designs; mere variations of lettering or coloring; mere listing of ingredients or contents

• Ideas, procedures, processes

Rights of the Copyright Owner

• Right to prevent others from:– Reproducing the work, preparing

derivative works, distributing copies, performing the work publicly, displaying the work publicly, transmitting

• Certain works of visual arts also have rights of attribution and integrity

• Exception: Doctrine of Fair Use

Doctrine of Fair Use

• Permits limited use by non-owners

• Strict Limits:– Non-substantial portions– Only for purposes of criticism, comment,

news reporting, teaching, scholarship or research

– Non-commercial use

Who Owns the Copyright?

• Author = Owner

• Exception: The Doctrine of Work Made for Hire

Work Made for Hire

• Work prepared by employee within the scope of his or her employment; or

• Specially ordered or commissioned AND– For use as:

• A contribution to a collective work;• Part of a motion picture or other audiovisual work;• A translation;• A supplementary work;• A compilation;• An instructional text; AND• Only if parties expressly agree in a signed, written

agreement.

Work Made for Hire (continued)

• Why WMFH usually does not apply:– Contract employees own their own work– Work does not fall into one of enumerated

categories– No agreement or agreement not in writing– Author does not sign agreement

• Solution: Get an assignment

Duration of Copyrights

• Works created after January 1, 1978– Author’s life plus 70 years– Joint works – last surviving author’s life

plus 70 years– WMFH, anonymous and some

pseudonymous works – shorter of 95 years from publication or 120 years from creation

• Works created before January 1, 1978 – ask your copyright lawyer

How Copyrights Are Secured

• Registration: file application for registration with Library of Congress– Three month reach back from publication– Specimen(s) required– Can file at any time during life of

copyright

Avoid “Innocent Infringement”

• Copyright work should be marked with ©, “copyright” or “copr.” plus publication date and name of author or other owner

Deposit MaterialDeposit Material

Copyright Considerations

• Music• Arrangement• Lyrics• Complied Work – Album• Performance• Art Work

Licenses

• Public Performance License• Reproduction Rights

• Authorized to make copies• Mechanical License

• Licensed to reproduce and distribute• Synchronization License

• Music composition to audio-visual work

• Digital Performance Rights• Internet streaming

Industry Organizations

• ASCAP• BMI• SESAC• Specific Countries/Regions• Jukebox License Office• Music Trade Associations

Examples of Licenses

• Blanket License– ASCAP: repertory of over 8.5 million songs– Replay of music or perform– No Dramatic Performances– No Mechanical Rights

• Program License– Per Use

Licenses (cont.)

• Performance Rights– Place open to public– Performance that is transmitted by device

• Record Label

• Retransmission• Rebroadcast of concert

• Sound Recording • Typically owned by record label

• Synchronization Rights

Royalties

• ASCAP compulsory mechanical CD Rate– 9.1 cents per composition– plus1.75 cent per minute for songs over 5

minutes– No Mechanical Rights

• Royalties go to members (minus costs)

• Examples

ASCAP Exemptions

• Religious organizations• Non-profit educational uses• Institutions that sell music• Government• State fairs and agricultural events• Veterans/fraternal charitable events• Charitable performances (No fee or pay)• Movie theaters

Questions?

About the Presenter:

Debra J. Fickler is an attorney with Fickler Law Office, LLC. She has experience in several areas of intellectual property law with a focus on patent, trademark and copyright procurement and enforcement. She also has experience in patent, copyright and trade secret litigation including appeal matters. She is registered to practice before the U.S. Patent and Trademark Office.

Fickler Law Office LLC.2300 Main Street

Suite 900Kansas City, MO 64108

816 | 448-3727Fax: 816 | 326-3411

You may email Debra at dfickler@ficklerlaw.com

The Music Business – Part 3Copyright Basics