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Class Notes from Music Business Handbook

Class Notes from Music Business Handbook

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  • 1. Music Copyright  History:  1790 Constitution Article I, Section 8  …to promote progress of science and useful arts…limited time….exclusive rights  Major Revision 1909  Most recent 1976, became effective 1/1/1978
  • 2. What is Copyrightable?  Original Works of Authorship  What constitutes “Original” “Authorship”  Not Ideas, but the “Fixation” of an Expression of the Idea
  • 3. What is Copyrightable?  Literary Works  Musical Works, including Words  Dramatic Works, including Music  Pantomimes & Choreography  Pictorial, Graphic, & Sculptural Works  Motion Pictures & Audio Visual
  • 4. What is Copyrightable? cont.  Sound Recordings  Not under the 1909 Law, but protected by other state statutes  Architectural Works
  • 5. What is Copyrightable? cont.  Name of Band is Not  Band Name is a Trade Mark/Service Mark issue  Original art of the Band Name Is
  • 6. When is A Work Copyrighted  When it is “Fixed in any tangible medium of expression” . . . written, recorded, etc. Proving the date of fixation is the problem.
  • 7. Exclusive Rights  Reproduce (Duplicate)(Mechanical Royalties)  Derivative Works  Distribute Copies  Perform Publicly (Performance Royalties)  Display Publicly  Digital Performance Transmission of Sound Recording (Congress considering extending to all)
  • 8. Exclusive Rights cont.  Sound Recordings do not have right of Performance Except Digital Transmission  What does this mean?
  • 9. “Fair Use” (p. 93)  Certain Uses are Allowable  Used For: Criticism, Comment, News Reporting, Teaching, Scholarship, Research  No Strict Definitions
  • 10. Two Musical Copyrights  Form PA (Performing Arts): the work of art (song: music & lyrics); songwriter owns rights  Form SR (Sound Recording): the “fixation” of sound, not the underlying song; performers, producer, record label owns rights (depending on contract)
  • 11. Fair Use  “Fair Use” is a “Legal Defense” to Infringement  1. Purpose or Character of the use  2. Nature of the Copyrighted Work  3. Amount & Substantiality  4. Effect on the Potential Market
  • 12. Fair Use Non Infringing Performances  Remember these must meet the test 1. Performance or Display, Face-to-face teaching, non-profit ed. 2. BUT, copying various chapter to make your own textbook effects the textbook market
  • 13. Fair Use Non Infringing Performances 2. Performance, display, transmission (non- dramatic) if. a. Regular part systematic instruction b. Directly related to teaching content c. Transmission reception is in classrooms
  • 14. Fair Use Non Infringing Performances 3. Performance (non-dramatic) religious service. BUT, copying songs from book effects the print music market
  • 15. Fair Use Non Infringing Performances 4 Performance (non-dramatic) without commercial advantage (payment for performance) a. No direct or indirect admission or b. Proceeds (after production costs) not used for financial gain
  • 16. Fair Use Non Infringing Performances 5. Performance (food/beverage musak or TV) a. Less than 3750 sq ft b. If more than 3750 c. • less then 6 speakers, less than 4 per room d. • less than 4 TVs, 1 per room
  • 17. Fair Use Chart For Teachers  http://www.mediafestival.org/copyrightchart.
  • 18. FAIR USE CASE  Campbell v. Acuff-Rose Music, Inc (1994)  Pretty Woman/Oh, Pretty Woman  District Court held as Fair Use  Court of Appeals, commercial nature disqualified it  Supreme Court: found the more transformative the better, purpose & character created a new work
  • 19. Duration of Copyright (p.100)  1909 law, two 28-year terms equals 56 years  Published or registered prior to 1923 are “Public Domain”  1976 Law, effective 1/1/1978, with the 1998 Sonny Bono Copyright Term Extension Act Duration Currently: Life plus 70
  • 20. Duration of Copyright cont.  “Work Made For Hire,” anon. or psuedo. Shortest of: 95 yrs from Pub. or 120 yrs from Creation  Published between 1923-1978 overlap the new law. Granted 95 yrs.  Copyright Chart
  • 21. Ownership  The “Bundle of Rights” can have multiple owners. WARNING; always have a formal agreement.  Ownership of the copyright is DISTINCT from ownership of a physical object (master tape)  “First Sale Doctrine” establishes rental industry
  • 22. Transfer Assignment  Any of the 6 rights can be transferred or assigned  Written agreement  File with Copyright Office
  • 23. Termination of Transfer  Any Transfer made after 1/1/78 can be recaptured 1. A 5-year window between end of year 35-40 2. Right of Publication: 35 yrs from pub. OR 40 yrs from execution
  • 24. Termination of Transfer cont. 3. File “Intent to Terminate” not less than 2 yrs before or more than 10 yrs before 4. Contract language does not effect this 5. 1923-78, 5-yr window at the end of 75 yrs 6. “Work Made for Hire” cannot be recaptured
  • 25. Work Made for Hire (95)  Employer is considered the author (owner)  Criteria 1. “Work prepared by an employee within the scope of employment” 2. Work Specifically ordered or commissioned” AND . . . .
  • 26. Work Made for Hire cont. AND must sign agreement stating “Work Made for Hire” Employee means SS benefits and withholding taxes
  • 27. Arrangements  Arrangement is a “derivative work” no ownership  “Request Permission to Arrange” form  For Recording a Mechanical License replaces the above form  Except Public Domain, may receive royalties
  • 28. Sound Recording  The “Fixation” of the sounds (Form SR)is different from the “Musical Work” (Form PA)  Rights: Reproduce, Derivative, Distribute, Perform by Digital Audio Transmission; no performance rights for other transmissions.
  • 29. Sound Recording  The owner of the SR copyright can only duplicate the exact fixation of sounds, not another version.  It is Legal to make a new recording that imitates another without violating the SR Copyright
  • 30. Question  What are the implications of only Performance Rights for Digital Transmission?
  • 31. Quick View of Licenses  Mechanical - to duplicate  Performance - to play in public, live or recorded  Synchronization - putting music to pictures  Transcription - music for syndicated programs & background music  Master Use – to license a recording (SR)
  • 32. Compulsory/Mechanical License  Owners have control of the first recording  After, they are “Compelled” to grant a license for recordings (not Transcriptions)  Notify copyright holder of intent within 30 days (before or after), before distributing.  Can’t find owner, notify Copyright Office
  • 33. Compulsory Mechanical Rates  2006 and later: 9.1¢ per song (5 min.) or 1.75¢ per minute
  • 34. Mechanical Royalties  Paid for each Phonorecord when “made and distributed”  Distributed Means “voluntarily & permanently parted with its possession”  Sale is not required, i.e., free goods  Returned items are not “permanently parted”
  • 35. Negotiated Mechanical License  Alternative is to Negotiate for lower rate  Record Labels Want to Pay Lower Rate on “Controlled Compositions”
  • 36. Formalities (p.103) n 1. Notice of Copyright n On Printed Music n © 2005 Sandy Schaefer n On Phonorecords n circle-P 2005 Sandy Records n
  • 37. Formalities cont  “All Rights Reserved” adds protection in foreign countries under Pan-American Convention
  • 38. Formalities cont.  Omission 1909-1978 invalidated copyright 1/1/78 - 3/1/89 does not invalidate IF • missing on small number • registration made within 5 yrs AND reasonable effort made • owner requested no notice in writing
  • 39. Formalities cont. 2. Deposit of Copies Within 3 months deposit LOC 2 copies of “Best Edition” 1909-1977 required sheet music 1978 - a recording
  • 40. Formalities cont. 3. Registration “is not a condition if copyright” Works must be registered before one can sue for infringement.
  • 41. CRT, CARP, & CRB  Copyright Royalty Tribunal, 1976-93  Copyright Arbitration Royalty Panels, 1993  Copyright Royalty Board, 2004 Both helped determine rates for: 1. Cable/Satellite, 2. Ephemeral sound recordings, 3. Digital Delivery, 4. Mechanicals, 5. Jukebox, 6. Educational Broadcast
  • 42. Infringement (p.107)  Using Copyright Material Without Permission or License  Remedies: Injunction, Impoundment, Destruction, Damages (Actual Damage or Statutory Damages)  Unregistered Works: No Statutory Damages or Lawyers Fees
  • 43. Piracy (p.108)  Manufacture and Sale of Phonorecords without permission or License  1982 Piracy & Counterfeit Act  Max $250,000 & Jail
  • 44. Audio Home Recording Act 1992  Allowing home duplication  Royalty payment & “Serial Copy Management System”  Dual CD Recorders use SCMS  “Audio” or “Music” CDs include a Royalty divided between featured and non featured players
  • 45. Trade Names Trademarks  Naming Band • DBA or Fictitious Name Form • Check with Unions, ASCAP, BMI, SESAC • Library: Index to the Trademark Register
  • 46. Band Names  Written Agreement:  Who Owns Name,  How is Ownership Shared,  How Does it End  What Happens when People Leave the Group
  • 47. Copyright Forms  http://www.copyright.gov/register/  Register online $35 eCo (electronic copyright)