1. Music Copyright Chapter Four

2. Start Thinking . . .
A composer is commissioned to write a piece of music for a film. Who owns the copyright—the composer or the film producers?
A church choir performs a nondramatic musical work during a Sunday service. Are they infringing copyright?
A music store plays the latest album over the store’s sound system. Are they infringing copyright?
Music Business Handbook and Career Guide, 11th Ed. © 2013 Sherwood Publishing Partners

3. Chapter Goals Acquire a clear understanding of copyright terminology.
Learn which authors’ and composers’ rights are protected under the copyright statutes.
Gain an understanding of what is meant by “fair use” of copyrights.
Learn the copyrighting process and what is required in respect to copyright “formalities.”
Understand the “work made for hire” doctrine and how it works in the marketplace.
Discover how copyrights can be transferred, assigned, recaptured, and terminated.
Music Business Handbook and Career Guide, 11th Ed. © 2013 Sherwood Publishing Partners

4. Background
Copyright is a form of protection provided by the laws of the United States for intellectual property
First U.S. copyright law passed in 1790
Current copyright revision enacted in 1976
International copyright not automatic
Universal Copyright Convention 1955
Berne Convention 1989
Goal of Congress: seek balance of interests between copyright owners and users
Ultimate authority in copyright law = U.S. Constitution as interpreted by Supreme Court
Music Business Handbook and Career Guide, 11th Ed. © 2013 Sherwood Publishing Partners

5. Essential Provisions
The 1976 statute preempts nearly all other copyright laws—both statutory and common law
The duration of copyright has been lengthened over the years: generally, life of author + 70 years
Performance royalties:
Sound recordings
Digital transmission
Musical works
Public broadcasters, cable systems, jukebox operators, schools, colleges to pay for use of copyrighted music
Music Business Handbook and Career Guide, 11th Ed. © 2013 Sherwood Publishing Partners

6. Essential Provisions
Congress codified the principles as to what constitutes the “fair use defense” to otherwise infringing activity
Policies and rates of music use licenses were to be periodically reexamined
Some formal procedures, such as copyright notice and renewal, were treated more permissively, and others were eliminated
Music Business Handbook and Career Guide, 11th Ed. © 2013 Sherwood Publishing Partners

7. Key Terms audiovisual works best edition collective work compilation
copies
copyright owner (proprietor)
created
derivative work
device, machine, process
Music Business Handbook and Career Guide, 11th Ed. © 2013 Sherwood Publishing Partners

8. Key Terms digital phonorecord delivery display establishment fixed
food service or drinking establishment
perform
phonorecords
pseudonymous work
publication
Music Business Handbook and Career Guide, 11th Ed. © 2013 Sherwood Publishing Partners

9. Key Terms publically registration sound recordings
place open to the public
transmit or otherwise communicate to the public
registration
sound recordings
transfer of copyright ownership
transmission program
transmit
work made for hire
Music Business Handbook and Career Guide, 11th Ed. © 2013 Sherwood Publishing Partners

10. Coverage Key principles of copyright protection:
Does not extend to ideas
Only expression of ideas
Allows normal development of musical forms
Protection granted to original works of authorship
Protection also for lawful compilations and derivative works
but not new protection for preexisting material
No copyright on publications by the U.S. government
Music Business Handbook and Career Guide, 11th Ed. © 2013 Sherwood Publishing Partners

11. Exclusive Rights The owner’s “bundle of rights” includes these rights:
To reproduce the copyrighted work in copies or phonorecords
To prepare derivative works based on the copyrighted work
To distribute copies or phonorecords of the copyrighted work to the public
To perform the copyrighted work publicly
To display the copyrighted work publicly
To perform the copyrighted work publicly by means of a digital audio transmission
Music Business Handbook and Career Guide, 11th Ed. © 2013 Sherwood Publishing Partners

12. Fair Use of Copyrighted Material
Copyright owners versus legitimate interests of society
Since 19th century, certain uses are fair within reason:
criticism, comment, news reporting, teaching, scholarship, and research
Four criteria incorporated in new law:
The purpose or character of the use
The nature of the copyrighted work
The amount and substantiality of the portion used
The effect of the use on the potential market for or value of the copyrighted work
Music Business Handbook and Career Guide, 11th Ed. © 2013 Sherwood Publishing Partners

13. Fair Use of Copyrighted Material
First Amendment versus fair use doctrine
conflict with dissemination of information
expression of ideas allows free speech to flourish
Certain performances are not considered infringements
Music Business Handbook and Career Guide, 11th Ed. © 2013 Sherwood Publishing Partners

14. Copyright Ownership Multiple authors
Music Business Handbook and Career Guide, 11th Ed. © 2013 Sherwood Publishing Partners

15. Copyright Ownership Ownership limitation Collective works Film music
not in material object
Collective works
separate contributions versus collective work
Film music
synchronization license
blanket copyright
Music Business Handbook and Career Guide, 11th Ed. © 2013 Sherwood Publishing Partners

16. Transfer or Assignment
Any or all exclusive rights may be transferred
Recordation of transfer
written agreement filed with Copyright Office
Termination or recapture
excludes work made for hire
writers and publishers may negotiate shorter term
Music Business Handbook and Career Guide, 11th Ed. © 2013 Sherwood Publishing Partners

17. Employer = author = owner of copyright Section 101 conditions
Work Made for Hire
Employer = author = owner of copyright
Section 101 conditions
work prepared by employee
work specifically ordered or commissioned
Disputes center on language of first condition
Music Business Handbook and Career Guide, 11th Ed. © 2013 Sherwood Publishing Partners

18. Musical Arrangements Arrangements = derivative works Arranger’s rights
permission must be obtained from copyright owner
mechanical license allows minor changes
Arranger’s rights
one-time fee based on AFM scale (if union jurisdiction)
arrangers receive no rights, royalties, or income
Public Domain
arranger may receive half mechanical royalties
payment for performance and printed music sales
Music Business Handbook and Career Guide, 11th Ed. © 2013 Sherwood Publishing Partners

19. Musical work different from sound recording
Sound Recordings
Musical work different from sound recording
recording company = owner of sound recording
publishing company = owner of musical work
Owner of sound recording has exclusive rights:
To duplicate the sound recording in reproduction
To prepare derivative works
To distribute phonorecords
To perform by digital audio transmission
Music Business Handbook and Career Guide, 11th Ed. © 2013 Sherwood Publishing Partners

20. Performance rights exclusion
Sound Recordings
Performance rights exclusion
Far less broadcast performance rights income compared with many countries
The Digital Performance Right in Sound Recording Act of 1995
Imitation exclusion
Imitations that mimic original recording permitted
Can’t mislead the public
Music Business Handbook and Career Guide, 11th Ed. © 2013 Sherwood Publishing Partners

21. Compulsory Mechanical License
After first recording of nondramatic music
licensing to others compulsory
fixed statutory royalty
Special conditions:
Transcriptions excluded
Pirates and counterfeiters excluded
Only minor changes allowed
Copyright proprietor must be given notice of intent
Compulsory license often bypassed through negotiation
Music Business Handbook and Career Guide, 11th Ed. © 2013 Sherwood Publishing Partners

22. Royalty Payments (Section 115[C])
Royalty rates set by statute
Owner must be identified in Copyright Office records
Payment for phonorecords made and distributed
not liable for returns
still receive payment for giveaways
Music Business Handbook and Career Guide, 11th Ed. © 2013 Sherwood Publishing Partners

23. Duration of Copyright Before 1978: Under 1976 Copyright Act:
56 years
Under 1976 Copyright Act:
50 years after author’s death
After Sonny Bono Copyright Term Extension Act (1998):
70 years after author’s death
Music Business Handbook and Career Guide, 11th Ed. © 2013 Sherwood Publishing Partners

24. Duration of Copyright
Subsisting copyrights in their first term on January 1, 1978 (Section 304)
Renewal registration
Subsisting copyrights in their renewal term
After 75 years
After January 1, 1978
Works in the trunk (Section 303)
Music Business Handbook and Career Guide, 11th Ed. © 2013 Sherwood Publishing Partners

25. Formalities
Formalities = actions a claimant must take to validate claim to copyright
Notice on printed music
Notice on phonorecords (Section 402)
Notice errors or omissions
Deposit (Section 407)
Registration (Section 408)
Fees (Section 708)
Copyright Royalty Board
Music Business Handbook and Career Guide, 11th Ed. © 2013 Sherwood Publishing Partners

26. Infringement, Remedy Copyright infringement assessment Remedies:
Injunction
Impoundment
Destruction
Damages
If copyright not registered before infringement
no statutory damages
no attorney fees
Music Business Handbook and Career Guide, 11th Ed. © 2013 Sherwood Publishing Partners

27. Record Counterfeiting, Penalties
Piracy and Counterfeit Act of 1982
Piracy and counterfeiting a felony
Maximum penalty of a $250,000 fine and jail terms for
180-day period of reproduction or distribution,
at least 10 copies or phonorecords, or
one or more copyrighted works with a retail value of more than $2,500
Music Business Handbook and Career Guide, 11th Ed. © 2013 Sherwood Publishing Partners

28. Changing Laws Two economic coalitions: creators and users
First Sale doctrine
The Audio Home Recording Act of 1992
The Digital Performance Right in Sound Recording Act of 1995
The Digital Millennium Copyright Act of 1998
Revival from Public Domain
Music Business Handbook and Career Guide, 11th Ed. © 2013 Sherwood Publishing Partners

29. Rights in Names and Trademarks
Not covered under copyright law in United States
U.S. Patent and Trademark Office
Selection of a name
research to avoid duplication and confusion
Rights in a name
performing groups should draw up written agreement
Music Business Handbook and Career Guide, 11th Ed. © 2013 Sherwood Publishing Partners

30. For Further Thought . . .
Who is the author of a sound recording released by a major label? Why do you think so?
Discuss how copyright laws affect the following groups of people:
Authors
Publishers
Schools
Authors working under work-for-hire agreements
Lyricists
Music Business Handbook and Career Guide, 11th Ed. © 2013 Sherwood Publishing Partners