MBU 1110 Passman chapter 20

1. Chapter 20
Advanced Copyright Concepts

2. Copyright Ownership
• Can you own half of a horse? Same with
songs.
• You can have a half ownership share in a
whole horse, though. Same with songs.
• When two or more people write a song
together, they each own a share in the entire
song.
• A joint work is a composition created by two
or more people.

3. Joint Works
• In a joint work, either of the authors/owners can
deal non-exclusively with the entire composition.
• That means that either of the creators can issue
non-exclusive licenses to the entire song so long
as they pay the other creators/owners their share
of the monies.
• If Sam and Dave write a song together, Sam or
Dave can exploit the song as long as they pay the
other for their share.

4. What do you own?
• Even if one person writes the music and one
person writes only the lyrics, both own all of the
music and lyrics.
• What if you don’t like the lyrics and replace them with
somebody else’s?
• You now have a three-way song; the original
lyricist still owns a part of the song (33% to be
exact).
• In Nashville, the phrase “a third for a word” applies
to this exact scenario.

5. Joint Works
• Writers don’t have to sit down together, see each
other, know each other, or like each other in order
to produce a joint work.
• One can write music in L.A. and the other write
the lyrics days, weeks, months, or years later in
Nashville, for example.
• The only stipulation is the the writer intended for
lyrics to be added at some point. Or, that the
lyricist intended for the words to be wed to music
at some point.

6. Works For Hire
• Section 101 of the Copyright Act (title 17 of the
U.S. Code) defines a “work made for hire” in
two parts:
1. a work prepared by an employee within the
scope of his or her employment; OR
2. a work specially ordered or commissioned for
use
• if the parties expressly agree in a written
instrument signed by them that the work shall
be considered a work made for hire.

7. Works For Hire
• A work for hire happens when you hire someone to
create a work for you.
• In entertainment, the employer becomes the author
of the work even though the real writer is typically
given credit in the “credits” of a film, on the sheet
music, etc.
• Compensation is usually the same for a work for hire,
but many important rights to the work are not.
• Question: Why aren’t signed songwriters’ songs all
considered works for hire?

8. Works For Hire
• Why? Because songwriters don’t fit the definition of
employees.
• Employer has to be actively directing, or supervising the
creation of a work in a very specific way.
• Technically, writers aren’t paid a salary, they’re paid an
advance on royalties, so they’re not really employees.
• Exceptions are musical scores, songs written
specifically for films; works that are commissioned to
be written. Still needs to be a written agreement that
they are works for hire.
• There is no termination of rights with a work for hire.
There is no copyright coming back to the writer or their kids,
ever.

9. Duration of Copyright
• Prior to 1978, copyright lasted for 28 years
after the creation of a work, after which it
could be renewed for another 28 years if you
applied for it. If you forgot, too bad.
• Why do you think we see “It’s a Wonderful
Life” 1,000 times every Christmas?
• The owner of the copyright forgot to get it
renewed. Ted Turner secured the rights and
TBS can show it and reproduce it without
paying any royalties to the studio that
produced it.

10. Duration of Copyright
• After the 1976 Copyright Act (which took effect Jan.
1, 1978), copyright became life of the author plus
50 years. “life plus 50”
• Also extended copyright for works prior to 1978 to 75
years.
• Copyright Term Extension Act of 1998; aka ‘Sonny Bono
Act’ named for ‘Sonny and Cher’ Sonny who became a
congressman but died tragically in a skiing accident.
• Added another 20 years to pre-’78 songs; became 95
years
• Copyright for new songs became life plus 70 years

11. What about joint works?
• Copyright for joint works lasts for 70 after the
death of the last surviving author.
• Anonymous (no name) or pseudonymous (pen
name) works – copyright last for the sooner of
• 95 years from publication (distributed to public)
• 120 years from creation (fixed in tangible form)
• Works for hire: same as anonymous
• Good for all those Disney movies, hunh?

12. Right of Termination
• There are two basic statutes of the Copyright Act in which the law of termination
has been established.
• First, and the law that is more prominent at the present time, is Section 203. Also
known as the “35-year law,” it allows for the termination of BOTH grants of rights
in post-1977 sound recordings (i.e., record contracts) AND musical compositions
(publishing agreements, co-publishing agreements, administration agreements,
licenses, etc.) 35 years after publication of the work.
• Second, the older law, Section 304(c), presently ONLY covers musical
compositions (and not sound recordings) registered prior to 1978, and it
affects copyrights 57 years after the date of copyright. For instance, if you
wrote a song in 1965 (and registered for copyright on a date in 1965), 57 years
after that is 2022, so you could send a notice now, for termination in 2022. This
is the law currently being utilized by Paul McCartney to terminate Sony’s right in
50% of a whole list of Beatles songs. (The law will also cover sound recordings
registered from February 15, 1972 to December 31, 1977, but we’re just not
there yet.) In any event, this law is very important, and we are just getting started
with terminations of the great songs of the 1960s! There is still a lot of time left.

13. Right of Termination
• WHY? It is often difficult to determine the worth of
a creative work at the time of its creation. Because
the value is unknown, musicians and songwriters
will not be in the most advantageous position
when negotiating what labels and publishers will
pay for commercially exploiting their work. Thus,
Congress made a policy decision to give authors
an opportunity to regain ownership of their
copyrights and entertain new, potentially more
lucrative licenses for their work. .

14. Right of Termination
• 1976 Copyright Law gave a great provision to writers:
the Right of Termination.
• Termination provisions say that the writer gets their
copyright back 35 years after they transferred the
copyright to a publisher.
• Don’t even have to die! Big plus…
• Only applies to U.S. copyright. Stuck with “Rest of
World” deals unless that countries termination rights
laws apply.
• No right of termination for works for hire. What does
this mean for many sound recordings?

15. Digital Performance Rights
ACT 1995
• Digital Performance Act of 1995
• First time in U.S. history that artists and record companies
are paid for performance of masters.
• Extended compulsory mechanical licenses to include
downloads
• Requirements:
• Performances must be digital
• Performances must be audio-only
• Performances can’t be over the air; must be streaming over the
web, satellite radio and tv, digital cable tv, etc.
• Examples are Music Choice, Sirius XM, Muzak, mobile phone
streaming.

16. Digital Performance
Rights
The DPRA categorizes services under three tiers,
based on the service’s potential impact on record
sales.
1. First, non-subscription broadcast
transmissions exempt from requirements to pay
license fees.
2. Second, non-interactive Internet transmissions
are required to pay a statutory license
established by the Copyright Board.
3. Third, Interactive Internet transmission services
are required to negotiate a license agreement
with the copyright holder.

17. DMCA - 1998
• 1998 Digital Millennium Copyright Act (DMCA)
• Set up compulsory license for webcasting;
owner of recording must allow performance for a
set fee.
• Compulsory license fees are collected and
distributed by SoundExchange.
• If broadcast doesn’t qualify for a compulsory
license, owner of recording can charge whatever
the market will bear.

18. DMCA - 1998
• DMCA creates a safe harbor for online service providers
(OSPs, including ISPs) against copyright infringement
liability, provided they meet specific requirements.
• OSPs must adhere to and qualify for certain prescribed safe
harbor guidelines and promptly block access to alleged
infringing material (or remove such material from their
systems) when they receive notification of an infringement
claim from a copyright holder or the copyright holder's agent.
• DMCA also includes a counternotification provision that
offers OSPs a safe harbor from liability to their users when
users claim that the material in question is not, in fact,
infringing. DMCA also facilitates issuing of subpoenas
against OSPs to provide their users' identity.

19. Advanced Copyright
Issues
• Questions?