Lesson 3: Copyright Basics > Overview > Copyright Basics
- You know, I say that the copyright is the most valuable asset in the music industry.
- The history of copyright, how the Copyright Act was enacted in 1790.
- Over the course of the past 200 and more years the copyright has been amended to change the term of copyright, add certain rights and types of.
- We’re going to talk about the four primary income-generating rights in the copyright in the composition.
- We’ll discuss how to register your copyrights with the US Copyright Office.
- What happens if somebody infringes on your copyright and doesn’t get your permission before they use your copyright.
- We’ll talk about the various enforcement and the remedies that you have as a result of having a US Copyright registration.
Lesson 3: Copyright Basics > History of Copyright > History of Copyright
- So let’s talk about the history of copyright, the history of copyright in the United States.
- Over this period of time since 1790, there have been a number of amendments to the Copyright Act that affect the term of the copyright or the length of ownership of the copyright, royalty rates, types, and rights of copyrights.
- In 1790, in the original Copyright Act, the term of copyright was only 14 years.
- At the end of that 14 year period, at the end of the term of copyright, the work then falls into what is called public domain, which means anyone in the public can use that work without getting the permission of the original copyright owner or anyone else, for that matter.
- Now, over the course of this 220-plus year history of the Copyright Act, there have been a number of amendments, particularly to the term of copyright.
- Currently, the term of copyright is the life of the author plus 70 years, unless the work is a work for hire.
- Now, I mentioned that the current term of copyright, if it isn’t a work for hire, is life plus 70 years.
- So when he passes, that 70 year period will run, which means that his estate, along with Gerald’s estate, would own the copyrights in all of those songs until the year 2105.
- So you see the importance of the length of copyright, and one of the reasons why I say that the copyright is one of the most valuable assets in the music industry.
- So be sure to consider the copyright laws of your nation.
- The Copyright Act has also been amended to increase the amount of mechanical royalties paid to the owners of the copyright and the composition.
- As a result of that, the piano roll makers had to pay the owners of the copyright and the composition, the songwriters and publishers, a $0.02 royalty for each copy of the piano roll that was sold.
- Over the years, that mechanical royalty rate has increased to the current rate of $0.091 per copy for recordings less than five minutes, or $0.0175 per minute for recordings in excess of five minute.
- Books and songs were the primary form of copyrights protected by the Copyright Act, until 1972, when Congress created a new type of copyright, the sound recording, the sound recording.
- The sound recording copyright has to be differentiated from the copyright in the composition.
- So let’s call that the PA registration, the copyright and the composition.
- Well, the sound recording copyright is different than the copyright in the composition.
- The sound recording copyright protects the fixation of sounds that make up a recording of the composition.
- Congress wanted to make sure that record companies and artists were protected from other people making exact duplicates of those actual recordings.
- The record companies, of course, exploit the recordings for them.
- The sound recording copyright also allows you to protect not only the fixation of sounds on that particular recording, but it also enables you to protect any artwork that’s on the CD or album, or any liner notes, the entire package.
- Under US Copyright Law, you can protect both the composition and the sound recording by filing a sound recording copyright and indicating and checking the box that you own all of the rights in the composition that’s on the recording as well.
- In 1976, Congress amended the Copyright Act to include a brand new right that would be of benefit to songwriters and artists.
- You’ll recall earlier I mentioned how most songwriters assign their interest in copyrights to publishers.
- Well, recording artists as well transfer their copyright interests to record companies.
- As I mentioned earlier, record companies usually pay royalties of 13% to 16% for the sale of the recordings, and usually 50% for any other use of the recordings.
- As a result, now they can receive 100% of the income, instead of giving up 25% to the publisher, or 84% to 87% to the record company, or the 50% that they normally give up to record companies for other types of uses.
- Another new right was created in copyright in 1995, when the Digital Performance Right in Sound Recording Act was passed, giving the copyright owners of the sound recording, record companies, and artists payments for any digital transmission of their copyrights.
- So what does that mean? That means that the order of the sound recording, the record companies and artists, now get paid any time those recordings are played through digital types of transmissions.
- While owners in the copyrights and compositions, publishers and songwriters, get paid when their songs are performed on terrestrial radio, through performance rights organizations, the owners in the copyright in the sound recording, record companies and artists, historically have not.
- While that’s true, the Digital Performance Rights and Sound Recordings Act of 1995 did create a new revenue stream for record companies and artists to be paid.
- At least the 1995 Digital Performance Right and Sound Recording Act is giving record companies and artists the opportunity to be paid when their recordings are streamed and played through this growing digital transmission market.
Lesson 3: Copyright Basics > The Importance of Copyright > Protecting Your Original Work
- Well, I went home after that, and I put the verse to the song and finished the song.
- He simply turned on the tape recorder and started to record those songs that he heard in his mind.
- Very important, because the US Copyright Law protects original creative works of the mind, intellectual property, for limited times established by Congress, which makes intellectual property different from other types of property, like real estate that you could own forever or in perpetuity.
- Even though you could only own these creative works for a limited period of time, as a result of the ownership of these works, I say the copyright is the most valuable long term asset you can own in the music industry.
- In other words, no one else can use those works during the term of copyright without getting the author’s permission.
- The US Copyright Law has made the United States a leader in entertainment worldwide.
- The US Copyright Act was set up to encourage Americans to create works by protecting their works and allowing them to have the exclusive rights to those works for a specific period of time.
Lesson 3: Copyright Basics > The Bundle of Rights > Bundle of Rights
- As I mentioned earlier usually publishers will sign co-publishing and administration agreements with songwriters, whereby the song writers transfer a 50% interest in the copyright to the composition to the publisher in exchange for receiving roughly 75% of the income generated from the exploitation of those compositions or songs.
- The mechanical right is the right to mechanically reproduce a song.
- So how is the money made from this system? Well whoever makes that mechanical reproduction and distributes it, usually the record company, has to get the license to make the mechanical reproduction from the publisher of that particular song.
- The publishers do that by issuing licenses to the record company to be paid the mechanical royalty for the sale and distribution of the recordings of their songs.
- Suppose you wrote one song- and songs are really selling in the millions again, singles are selling in the millions.
- Let’s say you’ve written a song for a major artist, and it sells a million copies.
- Suppose you wrote a number of songs on an artist’s album, say you wrote all the songs on an artist’s album that sells a million copies.
- Now let’s talk about the second right in the bundle of rights of the copyright of a composition- the right of public performance, the right to publicly perform your song.
- No one can publicly perform your song if you’re a songwriter without getting your permission.
- Public performance is your song being played on the radio, being streamed on the internet, being played in nightclubs and arenas all across the world.
- Tell me how is a songwriter supposed to know when their song is being played on a radio station in Spokane, Washington; San Diego, California; Tupelo, Mississippi; Worcester, Massachusetts? It’s impossible.
- These three organizations control about all of the songs that you hear on the radio.
- I like to say that ASCAP and BMI control about 45% each of all of the songs that you hear on the radio today.
- As a result of them having all of the songs in the catalog, in their catalog- and by that I mean BMI, ASCAP, and SESAC each try to affiliate with as many songwriters and publishers as possible to represent their public performance rights.
- So ASCAP will go to a radio station or a conglomerate of radio stations that are owned by one company and say, we are going to give you a blanket license, or the right to play any of the songs in our catalog, for the payment of, say, 2% of your advertising revenue for the year.
- Go to nightclubs, in nightclubs you’re going to have music played over the speaker system or by bands playing songs in a particular venue.
- All three performance rights organizations will go to clubs and say, you know, I want you to pay me- say it’s a small club- $500 a year, and you can play any of the songs in our catalog.
- They’ll say to those arenas, we’ll give you a year’s license so that any of the songs in our catalog can be played in your arena without violating the performance rights of the publishers or song writers for a set amount, thousands of dollars because of the vast size of those kinds of arenas.
- Once they determine how much of the big pot of money is allocable for the public performance of a particular song, they split the amount and pay it 50% to the publisher and 50% directly to the song writers.
- The next important right in the bundle of rights of a copyright in a composition is the Synchronization right, the right to synchronize a song from one medium- usually the audio medium- to the video medium.
- Or you hear snippets of a song that might not even be the recording of the original song but certain elements of the song being used in these various new type of visual mediums.
- In order for people to synchronize the songs from one medium to one another, from the audio to the visual medium, they have to obtain the rights to do so from the owners of the copyright and the composition, the publishers.
- So let’s say a movie producer wants to use a particular song that’s very popular.
- Well the publisher because of the song’s popularity could possibly demand a high fee of say $50,000 for the use of the song in that particular movie.
- If you have a catalog of a number of songs, they can each be used in many different ways.
- The forth right in the bundle of copyright rights for the owners of the composition copyright is the Derivative right.
- Very popular song written by the group’s founder, Larry Blackmon, and Tomi Jenkins.
- Well the song was a big hit in 1988, went to top five on the charts, generated a lot of money- mechanical income.
- In the year 2000, Mariah Carey decided to make a new song that incorporated elements of “Candy.” The music track was primarily the track from “Candy.” She didn’t use the actual recording.
- She brought Cameo into the studio to make a new recording of the song just like the music sounded back in 1988.
- So you can believe that Larry and Tomi were thrilled to know that Mariah Carey, in 2000 after coming off 10 million plus selling albums, was going to use their song to create a new song.
- Well Mariah had to obtain the derivative right from Larry and Tomi and their publishing company to make this new song, which was titled, “Loverboy.” And you’ll be able to see the link on this page for “Loverboy” as well.
- You can bet that Larry and Tomi’s publisher decided that instead of just taking a one time fee, they decided to ask for rights in Mariah Carey’s new song, “Loverboy.” So when you check the credits for “Loverboy,” you’re going to find the writers of that song are Mariah Carey, Tomi Jenkins, and Larry Blackmon.
- So now Tomi and Larry not only have copyright interest in the composition “Candy,” but they also have a copyright interest in this new song, this derivative song, “Loverboy.” The mechanical right, the public performance right, the synchronization, and the derivative rights are the four primary income-generating rights for compositions for popular songwriters today.
- The Grand Right- the Grand Right is the right to take a non-dramatic song, in other words, a song that’s recorded and used on a recording that’s sold to the public and then adapting that non-dramatic version of the song into a dramatic setting, in other words, a Broadway play or other type of traveling play.
- The play, Mamma Mia, was developed and built on the songs of the great group, ABBA.
- So the song writers and publisher of the songs written by ABBA had to issue licenses to the producers of that Broadway play to give them the Grand rights to dramatically interpret those great ABBA songs.
Lesson 3: Copyright Basics > Infringement > Copyright Infringement
- What happens if someone infringes on your copyright, either in your sound recording or your composition? In other words, they use proportions of your prior copyrighted work.
- At some point, if you have a US Copyright registration, you can sue them in federal court.
- I want to let you know that suing people for copyright infringement, and proving the case, isn’t an easy thing to do.
- They’re really going to notate each song, and really compare to see how close that song comes, or that sound recording comes, to the other.
- As a matter of fact, most copyright claims are usually settled before there’s a decision in the case.
- A lot of people also ask me, well, I’ve heard about this rule that if you only use four bars of somebody else’s song or sound recording, then it’s not considered copyright infringement.
- Now, I can’t repeat those notes here because I don’t want to infringe on their copyright.
- If I did, or anybody else used those three notes, the NBC network could sue them for copyright infringement.
- If you feel that your copyrights have been infringed upon, and you have US Copyright registrations, you’re in a position to sue in the US federal court system.
- This is the reason why I say that proving copyright infringement is really no joke.
- Many times people will hear songs and they’ll say, that sounds just like this song.
- One, you have to prove that you actually have a US Copyright registration, as I mentioned earlier.
- You have to bring that copyright registration to court.
- You have to prove that the person that infringed on your work had access to your copyrighted work.
- If you went backstage with an artist, and you played them a song, and there were other people in the room who could testify that the artist heard that song on that particular date.
- Then three months later the artist comes out with a song that sounds just like your song, but they didn’t get permission from you, that’s a pretty easy case of proving access.
- You aren’t going to find the kind of situation that, just because a song you hear on the radio sounds something like your song, then there’s copyright infringement.
- As I said before, the judge in a copyright infringement case can order the losing party to pay the winning party’s attorney’s fees.
- As I indicated before, copyright infringement cases aren’t as easy to prove as a lot of people think.
- The elements to prove a copyright infringement case.
- You have to prove that your work was infringed upon, and the other person that created a work that infringed upon yours is substantially similar to your copyrighted work.
- If the two works are strikingly similar where anyone can hear that the music is really the same, then you don’t even have to prove access in order to proceed with a copyright infringement suit.
- I remember having one client’s song used- I felt a certain portion of their song used- in another popular artist’s song.
- To me, it really sounded like copyright infringement.
- Although I disagreed with the publisher, I had to go along with their decision because they are experts in that particular area of determining whether or not it’s worth going forward with a copyright infringement claim.
Lesson 3: Copyright Basics > Fair Use > Fair Use
- Copyright infringement is a very serious issue and can have very serious ramifications.
- In certain circumstances, the law allows limited uses of prior copyrighted works without getting the permission of copyright owners.
- Fair use is really a defense to a copyright infringement claim.
- That defense is usually used in circumstances surrounding news reporting agencies or when works are used in religious settings or educational settings or even when copyrighted works are made light of, and that’s called a parody.
- If during a news report on TV, you might hear snippets, small segments of a song, or even videos, copyrighted videos, that might be considered fair use.
- You may not have to get the permission of the copyright owner.
- When copyrighted works are used in an educational setting, particularly if it’s a nonprofit educational setting, or during religious services, that can be considered fair use.
- You may not have to get the permission of the copyright owners to use those works in those settings.
- To give you an example of fair use and its application in a copyright infringement case, I’m going to tell you about the test case in this area, which goes back a few decades.
- Well, what they didn’t know is that the human cannonball had copyrighted his act.
- The human cannonball filed suit against that television station and said, wait a minute, you infringed on my copyright.
- The court’s justification was, you didn’t use a small portion of this copyrighted work.
Lesson 3: Copyright Basics > Recap > Lesson 3 Recap
- As we discussed, since the original Copyright Act of 1790, there have been a number of amendments to the term, the rates, rights, and types over the years.
- We looked at the copyright in the composition protected by the Performing Arts Registration, the PA Registration that’s owned by the publishers and the song writers.
- Once again, the copyright isn’t just one right, it’s a bundle of rights.
- We examined the four Primary Income-Generating Rights of Copyright for popular songwriters.
- We discussed how to register our work with the US Copyright Office.
- We reminded you to check with the copyright office in your home country to find out the best way to protect your works.
- I shared with you the three important elements pf proving a copyright infringement case.
- Having the copyright registration, proving access, and substantial similarity- the three elements to prove a copyright infringement case.
- Finally, we discussed Fair Use, the limited taking of prior copyrighted work without getting a permission of the copyright owners.
