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Copyright for Musicians with Special Consideration for Entrepreneurs

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Issues in copyright law for entrepreneurial-minded musicians.

Issues in copyright law for entrepreneurial-minded musicians.

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  • -ELC
  • -disclaimer: we can’t give legal advice
  • -ask who’s set list this is
    -3 main points
  • 4 bodies of IP law, copyright as part of a strategy
  • 1) encouraging creativity by giving exclusive property rights in creations and 2) fostering a competitive marketplace by giving the freest possible public access to works of authorship and the ideas they encompass. 
  • -Copyrights are rights in the expression of ideas, not the ideas themselves. 
    -Ownership of a copyright (or any of the exclusive rights under copyright) is distinct from ownership of the material object in which the work is embodied. (ex.  Textbook – I own the object but the copyright belongs to Random House, Inc.) 
  • Bundle of Sticks:  The owner of copyright in a work has the exclusive right to do or authorize the following: 1. Reproduce the copyrighted work; 2. Prepare derivate works based upon the copyrighted work; 3.  Distribute copies or phonorecords of the copyrighted work to the public; 4.  Publicly perform the work; 5. Publicly display the work; and 6. In the case of sound recordings, to perform the copyrighted work publicly by means of digital audio transmission.
  • The Copyright Act §102 says protection is afforded to literary works (which also includes computer programs), musical works (including any accompanying words), dramatic works (including any accompanying music), pictorial works (which includes things like paintings, photographs and sculptures), motion pictures, sound recordings, and architectural works.  This list is not meant to be exclusive. [sheet music, recordings, album covers, concert posters, album inserts, music videos]

  • For sole authors: Life + 70 years
    For joint authors: Life of the last of the joint authors to die plus 70 years RIGHTS FOR JOINT AUTHORS
    For works made for hire, the shorter of 95 years following first publication or 120
  • works made for hire
  • -Copyrights come into being automatically as soon as the author fixes in any tangible medium of expression an original work of authorship.  It’s a low hurdle. 
    -No registration is required to obtain the copyright (although registration confers other valuable benefits). 

  • -walking through registering a copyright
    No copyright notice (©) is required to maintain copyright (although notice confers other valuable benefits) BUT, to register a copyright, the author has to file a form
    with the copyright office.  [http://www.copyright.gov/forms/formco2d.pdf] 
  • Back to the Bundle of Sticks
    Licensing - A license creates an “exception” to infringement.  Activities outside of the license grant are in breach of the license agreement.  They are also an infringement of the owner’s applicable IP rights.  Clearly define what rights are being conveyed (regardless of whether you are granting or receiving rights)  
    Ownership - You can assign your rights to others.  Author is the person who creates the work but big exception is work for hire doctrine.  Work for hire 1) work prepared by an employee within the scope of employment or 2) a) specially commissioned b)work falling within 1 of 9 categories (ex.  as a contribution to a collective work, as a translation, etc.)and c) written contract.  Works for the US government are not copyrightable.  Exception to work for hire doctrine is universities cannot claim the work that its professors do even though they are employees. 
  • With a Creative Commons license, you keep your copyright but allow people to copy and distribute your work provided they give you credit - and only on the conditions you specify. 
  • Fair Use Exceptions:  Copyright Act §107 includes uses for purposes such as criticism, comment, news reporting, teaching, scholarship or research.  Four factors courts consider in determining whether a defendant’s use was fair are 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.  The 4th factor is the most important. 
  • -when to get an attorney
    -copyright is actually really complicated

  • Transcript

    • 1. A Warning We Can’t Provide Legal Advice
    • 2. Set List Why Copyright? What is Copyright? Creating Copyright Registration Enforcement Licensing Q&A
    • 3. Copyright Trademark Patent Trade Secret
    • 4. Why Copyright?
    • 5. IDEA vs. EXPRESSION
    • 6. Rights Make Copies Create Derivative Works Distribute Copies Publicly Perform* Publicly Display
    • 7. Authorship
    • 8. Works Made for Hire
    • 9. Copyleft http:// creativecommons.org/ choose/
    • 10. Final Note Copyright Law is Complex If you have questions, you probably need a lawyer
    • 11. Q&A