1. Music Business Handbook and Career Guide
Part 2: Songwriting, Publishing, Copyright, and Licensing

2. Music Copyright
Chapter 6

3. 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 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 statute.
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
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

7. 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

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

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

10. 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

11. Coverage Key principle of copyright protection:
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 to preexisting material
No copyright on publications by the U.S. government

12. 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 upon 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

13. Fair Use of Copyrighted Material
Copyright owners versus legitimate nonprofit entities
Since 19th century certain uses are fair within reason:
criticism, comment, news reporting, teaching, scholarship, or 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

14. 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

15. Copyright Ownership Multiple authors 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%

16. 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

17. 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

18. 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

19. 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
arrangers receive no rights, royalties or income
Public Domain
arranger may receive half mechanical royalties
payment for performance and printed music sales

20. 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:
to duplicate the sound recording in reproduction
to prepare derivative works
to distribute phonorecords
to perform by digital audio transmission

21. Sound Recordings Performance rights exclusion Imitation 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

22. 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 bypass

23. 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 for returns
payment for giveaways

24. 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

25. 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)

26. Formalities
Formalities = actions a claimant must take to validate claim to copyright
Notice on printed music
Notice on phonorecords
Notice errors or omissions
Deposit (Section 407)
Registration (Section 408)
Fees (Section 708)
Copyright Royalty Board

27. Infringement, Remedy Copyright infringement assessment Remedies:
injunction
impoundment
destruction
damages
If copyright not registered before infringement:
no statutory damages
no attorney fees

28. 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.

29. 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

30. 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

31. For Further Thought. . .
What is the key principle of copyright protection, and how does this foster musical creativity and growth?
Discuss which sections or implications of copyright law affect the following groups of people:
authors
publishers
schools
authors working under work-for-hire agreements
lyricists