1. Part 2: Songwriting, Publishing, Copyright, and Licensing

2. Chapter 6

3. Start Thinking... 1. A composer is commissioned to write a piece of music for a film. Who owns the copyright—the composer or the film producers? 2. A church choir performs a nondramatic musical work during a Sunday service. Are they infringing copyright? 3. A CD store plays the latest album over the store’s sound system. Are they infringing copyright?

4. 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

5. Background Author of work may reap fruits for limited period 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

6. Essential Provisions 1. The 1976 statute preempts nearly all other copyright laws—both statutory and common law 2. The duration of copyright has been lengthened over the years: generally, life of author + 70 years 3. Performance royalties: radio, digital, venues 4. Public broadcasters, cable systems, jukebox operators, schools, colleges to pay for use of copyrighted music

7. Essential Provisions 5. Congress codified the principles as to what constitutes the “fair use defense” to otherwise infringing activity 6. Policies and rates of music use licenses were to be periodically reexamined

8. Key Terms audio visual works best edition collective work compilation copies copyright owner (proprietor) created derivative work

9. Key Terms digital phonorecord delivery display establishment fixed food service or drinking establishment perform phonorecords pseudonymous work publication

10. Key Terms publically 1. place open to the public 2. transmit or otherwise communicate to the public registration sound recordings transfer of copyright ownership work made for hire

11. Coverage Key principle 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 No copyright on publications by the U.S. government

12. Exclusive Rights The owner’s “bundle of rights” includes these rights: 1. to reproduce the copyrighted work in copies or phonorecords 2. to prepare derivative works based upon the copyrighted work 3. to distribute copies or phonorecords of the copyrighted work to the public 4. to perform the copyrighted work publicly 5. to display the copyrighted work publicly 6. to perform the copyrighted work publicly by means of a digital audio transmission

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

14. Copyright Ownership Composers’ Share (50%)Lyricists’ Share (50%) Example 1. One composer and one lyricist, sharing equally One composer: owns 50%One lyricist: owns 50% Example 2. Two composers splitting their share equally, three lyricists dividing their share unequally First composer: owns 25%First lyricist: owns 25% Second composer: owns 25%Second lyricist: owns 15% Third lyricist: owns 10% Multiple authors

15. Copyright Ownership Ownership limitation not in material object Collective works separate contributions versus collective work (will need copyright for both) Film music synchronization license blanket copyright

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

17. Work Made for Hire Employer = author = owner of copyright Section 101 conditions: 1. work prepared by employee 2. work specifically ordered or commissioned Disputes center on language of first condition

18. Musical Arrangements Arrangements = derivative works permission must be obtained from copyright owner mechanical license allows minor changes Arranger’s rights one-time fee based on AFM scale arrangers receive no rights, royalties or income

19. Sound Recordings Musical work different than sound recording recording company = owner of sound recording publishing company = owner of musical work Owner of sound recording has exclusive right: 1. to duplicate the sound recording in reproduction 2. to prepare derivative works 3. to distribute phonorecords 4. to perform by digital audio transmission

20. Sound Recordings Performance rights exclusion Far less performance rights income compared to many countries The Digital Performance Right In Sound Recording Act of 1995 Imitation exclusion imitations that mimic original recording permitted marketing restrictions

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

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 “distributed” ambiguity not liable for returns still receive payment for giveaways

23. Duration of Copyright Before 1978: 56 years Under Copyright Act: 50 years after author’s death After Sonny Bono Copyright Term Extension Act (1998): 70 years after author’s death

24. 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

25. Infringement, Remedy Copyright infringement assessment Remedies: 1. injunction 2. impoundment 3. destruction 4. Damages (copyright owner sues for damages) If copyright not registered before infringement: no statutory damages no attorney fees

26. Record Counterfeiting, Penalties Piracy and Counterfeit Act of 1982 piracy and counterfeiting a felony maximum penalty of a $250,000 fine and jail terms 180-day period at least 10 copies or phonorecords or one or more copyrighted works with a retail value of more than $2,500.

27. Rights in Names and Trademarks Not covered under copyright law in U.S. 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

28. 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