1. Use of Music in Media Productions
Rick Morris, J.D., LL.M.
Associate Professor
R/TV/F and Communications Studies
Northwestern University

2. Definition of Copyright
Copyright arises when a work of authorship in any tangible medium of expression is fixed in a tangible form. This can be by writing, recording, digital storage or other means. Ideas, procedures, processes, systems, methods of operations, etc. are not copyrightable. 17 U.S.C.S § 102.

3. Requirement of Fixation
In order to be copyrighted, a lecture or presentation must be fixed in a tangible form. This would usually happen via recording, preparation of lecture notes, etc.

4. Ideas are not copyrightable
Ideas are not copyrightable; however, expressions of ideas are copyrightable. For example, the idea that a medical procedure might be effective is not subject to copyright. However, the lectures, medical journal articles, and other communications explaining the procedure are copyrightable. Procedures, processes, systems, etc., to the extent that they meet the legal requirements, may be patentable.

5. The Rights of a Copyright Owner
Once something is “copyrighted,” what rights does a copyright owner have?

6. Rights in a copyrighted work §106 Exclusive Rights in Copyrighted works
Subject to sections 107 through 120, the owner of copyright under this title has the exclusive rights to do and to authorize rights to do and to authorize any of the following: (summarized)
(1) make copies of the copyrighted work
(2) to prepare derivative works based upon the copyrighted work;
(3) to distribute the copies of the copyrighted work to the public by the sale or other transfer of ownership, or by rental, etc.
(4) to perform the copyrighted work publicly;
(5) to display the copyrighted work publicly; and
(6) in the case of sound recordings, to perform the work by means of a digital audio transmission. 17U.S.C.S §106.

7. Limitations on Copyright
There are a number of limitations on copyright, including provisions for libraries, for direct classroom teaching by a nonprofit educational institution, for cable companies under limited circumstances, for ephemeral recordings, etc. An important limitation for your consideration is Section 107, Fair Use.

8. §107 Limitations on exclusive rights: Fair use
Notwithstanding the provisions of Sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered include -

9. The Four Factors of Fair Use
1) the purpose and character of the use, including whether such use is of a commercial 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 copyrighted work as a whole; and
4) the effect of the use upon the potential market for or value of the copyrighted work

10. Fair Use Applied
Some Fair Use Cases

11. Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U. S
In an opinion by Justice O'Connor, the court held as not a fair use, the excerpt of only 300 words from the autobiography of Gerald Ford The Nation magazine used part of the book, the most important part, containing Ford’s thoughts when he pardoned Nixon. The Court found that The Nation had used, for blatant commercial purposes, important original thoughts of the author, and this use had a tangible effect on the market for the original and the defendant's claim of fair use was not allowed.

12. New York Times v. Trisani, U.S. Supreme Court, June 25, 2001
Freelancers who sold material to the New York Times successfully sued to protect their copyrights against re-publication in online databases. The Court found for the authors saying that the New York Times had not obtained permission for the re-publication of the work in an online mode.

13. Music “sampling” is not Fair Use
Music sampling has been held to not be Fair Use even though the sample is a small portion of the whole work. The lead case involves rap artist Biz Markie sampling a portion of Gilbert O’Sullivan’s song Along Again, Naturally. Grand Upright Music vs. Warner Bros. 780 F. Supp. 182; 1991

14. A&M Records v. Napster, 2001 U. S. App. LEXIS 5446 (9th Cir
A&M Records v. Napster, 2001 U.S. App. LEXIS 5446 (9th Cir. Feb 12, 2001),
Copyright infringement even if you don’t actually “touch” the material: Napster provided a database and software that permitted users to exchange files by peer-to-peer networking. Although the infringing material never passed through Napster’s servers, the appeals court rejected Napster’s four arguments (including Fair Use) that they were not violating the copyright of various recording artists and their record companies.

15. Napster continued – the current situation
On remand, the lower court has tried to fashion a remedy that permits Napster to stay in business but Napster has been unable to fully comply with the court’s orders. The court has now ordered Napster shut down and announced a “Zero Tolerance Policy”
On 7/11/01 the District Court refused to permit Napster to resume file transfers even though Napster was able to demonstrate 99% reliability in blocking copyrighted music. The District Court is now requiring 100% reliable blocking.

16. Los Angeles Times v. Free Republic, CV 98-7840-MMM (Dist. L.A. 1999)
U.S. District Court held that the fair use doctrine does not protect wholesale copying of newspaper article on the Internet, even if the website in question is used for public comment on the articles.

17. Other Exemptions from Copyright
Section 110 – use for face-to-face teaching

18. Section 110 Exemptions of certain performances and displays
Notwithstanding the provisions of section 106,the following are not infringements of copyright:
(1)performance or display of a work by instructors or pupils in the course of face-to-face teaching activities of a nonprofit educational institution,in a classroom or similar place devoted to instruction,unless,in the case of a motion picture or other audiovisual work,the performance,or the display of individual images,is given by means of a copy that was not lawfully made under this title,and that the person responsible for the performance knew or had reason to believe was not lawfully made;

19. Important Doctrine for Media-makers
The “work-made-for-hire” doctrine is your friend as a media-maker. It makes copyrights on certain collaborative works easier to manage.

20. Work Made for Hire Work made for hire – Section 101
A work made by an employee within the scope of his or her employment; or
A work specially commissioned for use as a contribution to a collective work, as part of a motion picture or other audio visual work as a sound recording, etc. if the parties expressly agree in a written instrument signed by them.....”

21. Some Methods for Non-infringing Use
A person may use material
1) If they find an exception for their use in the Copyright Act (Fair Use, others).

22. Some Methods for Non-infringing Use
A person may use material
2) If it is not copyrighted (ie: has fallen into the public domain, or is a government publication),

23. Some Methods for Non-infringing Use
A person may use material
3) If they receive the consent of the copyright holder. The permission can be free of by negotiation of a fee.

24. Some Methods for Non-infringing Use
A person may use material
4) If they pay an agent of the copyright holder (performing rights societies, others).

25. Some Methods for Non-infringing Use
A person may use material
5) If they specially commission it for their multimedia work.

26. How to tell if a work is copyrighted?
Copyright search at the Library of Congress Copyright office
In-person
By web interface
By hiring the copyright office ($65/hour)
By hiring a contractor

27. How to research the copyright status of a work
By web interface – post 1978 works
By Telnet LOCIS locis.loc.gov
Circular 22 covers how to search
By manual card catalog - the card catalog covers 41 million works from 1870 to 1977
Hire a contractor, etc.

28. Public Domain Dates
Music and lyrics written by an American author and published in 1932 or earlier are in the Public Domain in the United States, unless a state law creates a separate right. If it is an unpublished work, then 1882 or later, depending on the facts.
After that, see the public domain chart – handout.

29. Problems with Copyright Searches
LOC may be running behind in entering data
Post-1978 works are protected, even if not registered
Unpublished works before 1978 are protected under common law without registration
Works published with notice prior to 1978 can be registered anytime within their initial 28 year term
Works between 1964 and 1977 have had their terms automatically extended and renewal registrations are optional
Other problems

30. Public Domain Music Public Domain Music websites www.pdinfo.com info
compositions
choral public domain music

31. Use “buyout music”
What is buyout music? Music for sale which includes the rights.
Often themed music, not popular music, not recognizable, but “in the spirit” of the concept. Much buyout music is custom composed and performed.

32. Use “buyout music” Where to get buyout music The Music Bakery
Aircraft Music
Chestnut Mills
Many, many more

33. Music Research Link
Great link for music research – New York Public Library

34. Songs – two types of Copyright
Two types of copyright in songs – the Composition
And the Performance Ⓟ

35. Songs – two types of Copyright
The two copyrights do not have to be owned by the same person or the same company.

36. Where to get permissions
Direct from the publisher (often free permissions)
Direct from the author (usually free)
Copyright Clearance Center (small fee)
CANCOPY (Canada)
ASCAP, SESAC, BMI

37. Use of the Composition Only
To use a copyrighted song, performed by your own artist, you will need rights from the composer/music publisher

38. Use of a Popular Song
To use a popular performance of a song, you will need permission form both the composer/music publisher and the holder of the performance copyright, usually the record label.

39. How to Get Permission for Use of a Popular Song
Direct negotiations – or,
The Harry Fox Agency – agency for getting licenses for popular music
Song search engine at
(demonstrate)

40. Summary – good ways to use music in media productions
1) Get permission
2) Check to see if it is in the public domain
3) Pay an agent/rights society
4) Compose your own
5) Get permission

41. Use of Music in Media Productions
Questions??
Rick Morris, J.D., LL.M.