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This article is from
Get It In Writing:
The Musician's
Guide to the
Music Business
by Brian McPherson
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Confused by today's music business? Did you ever
wish that that some super-knowledgeable music attorney would sit
you down and explain the whole thing to you? Well, that's what
this book is all about. Get It in Writing is actually three
books in one:
1) An overview of the entire music business and the players involved;
2) Interviews with top industry professionals; and 3) A huge collection
of sample agreements with extensive commentary from the author.
This indispensible book covers: recording contracts, demo deals,
copyrights and trademarks, music publishing, performance rights,
motion pictures & TV, artist management, producers, band partnerships,
and plenty more.
All of this info coupled with expert insider advice makes this
book every musician's best tool for success in the music business.
Inventory #HL330239
Book $29.95 (US)
 HOW
TO ORDER
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WHAT IS COPYRIGHT?
The Copyright Act of 1976 is Federal law that came into effect on
January 1, 1978. The 1976 Act superseded the 1909 Act. The U.S. Congress
created copyright law to give "authors" a limited monopoly
in tangible "orginal works of authorship." In the context
of the music business, an "author" can mean any person or
group of persons who write a song or contribute to the creation of
a sound recording as a "work made for hire." For our purposes,
an "original work of authorship" is a song or a sound recording
fixed in a tangible medium that has not been copied from another song
or recording.
HOW TO SECURE A COPYRIGHT
In order to secure a copyright protection for your song or recording,
you simply need to create it and fix it in a tangible means of expression.
In other words, if you write down the words and music to your original
song on a piece of paper or record it on an audio or video tape,
that song is now copyrighted and you are the author (unless you
are creating the song as a work made for hire). That's it
— you need not register your song or sound recording in order for
it to be protected by copyright law. However, registration does
have its benefits.
BENEFITS OF COPYRIGHT REGISTRATION
• Registration is necessary before you can sue another party
for infringement of your work.
• Registration establishes a public record of the copyright claim.
• If registration is made within three months after publication
of the work or prior to an infringement of the work, the copyright
owner may seek statutory damages and attorney's fees in any infringement
action. Otherwise, the copyright owner is limited to an award of actual
damages and profits.
• If you register your work before or within five years of
publication, the court will view your registration as prima facie
evidence of the validity of the copyright and the facts stated in
the registration certificate. In other words, the court will assume
that you are the author of the work in question and have the right
to sue for infringement, and the burden of disproving your copyright
in and to the work in question will fall on the other party.
• Registration allows the owner of the copyright to record the
registration with the U.S. Customs service for protection against
importation of infringing copies.
WHAT ARE YOUR RIGHTS AS COPYRIGHT OWNER?
• To reproduce the copyrighted work in copies or phonorecords.
For example, no one can dub a copy of your four-track demos, put
your song or recording in a movie or make copies of your CD without
the copyright owner's consent.
• To prepare derivative works based upon the copyrighted
work. If someone wants to take one of your copyrighted songs and
make material changes in the lyrics or basic melody, thereby resulting
in an essentially different but similar song derived from your song,
he must get your consent. For example, if you take a Bob Dylan song
and change all the lyrics, you have created a derivative work. You
cannot do this without Bob's consent. When you make a new song or
recording using copyrighted "samples," you are creating
a derivative work.
• To distribute copies of phonorecords of the copyrighted
work to the public by sale or other transfer of ownership, or by
rental, lease, or lending. This is separate from the right to reproduce.
For example, assuming you give someone the right to make copies
of your demos, that person does not have the right to publically
distribute those copies to the public without your consent.
• To perform the copyrighted works publicly. No one
can play your sound recordings or perform your songs in a bar, in
a motion picture shown in a U.S. movie theater or at Dodger Stadium
(or in any other public area) without your consent. This includes
radio and TV broadcasts. There are exceptions to this general rule,
and they are as follows: First, bona fide record stores (i.e. stores
that count record sales as their primary business) may perform recordings
of songs, without permission and without payment of performance
license fees to promote records sales. Second, jukebox owners can
get compulsory jukebox performance licenses for commercially exploited
songs whether you like it or not, but they still have to pay license
fees to the performance rights organizations. Finally, a fairly
recent amendment to the Copyright Act provides that owners of "small
vending establishments" which are 2,000 square feet or less,
and "food service or drinking establishments" which are
less than 3,750 square feet can play recordings from radio, TV,
cable or satellite without acquiring performance licenses or paying
any performance license fees. Of course, it is virtually impossible
to control how and where your songs and recordings will be performed,
so songwriters join performing rights organizations like ASCAP,
SESAC and BMI to enforce their performance rights and collect their
public performance royalties.
• To display the copyrighted works publicly. This right
applies more to photographs, paintings and other visual works.
EXCEPTIONS TO THE EXCLUSIVE RIGHTS
Now that you know all about your exclusive rights, you need to know
about a few very important exceptions to some of them: the first sale
doctrine and compulsory licenses.
THE FIRST SALE DOCTRINE/RECORD RENTALS
Once a legally made copy of a work is sold or given away, the copyright
owner ceases to have any control over what happens to that copy thereafter.
Let's assume that you have purchased a CD. Now that you own it, you
can do whatever you want with it. You can sell it, destroy it, or
loan it to someone else. However, you cannot copy it or prepare a
derivative work from it.
There is an exception to this exception, and this concerns the rental
by a "commercial establishment" of records containing sound
recordings of musical works. You cannot rent records in the United
States (unless you are a non-profit library or school).
COMPULSORY MECHANICAL LICENSES
In order to reproduce a song in a record you need a mechanical license.
The mechanical license and any other kind of license pertaining to
the song is granted by the copyright owner or administrator (that
entity is called the publisher). The mechanical license specifies
the royalty to be paid for every record distributed or sold. We call
this royalty the mechanical royalty. In certain situations, the Copyright
Act compels copyright owners to issue mechanical licenses, even if
the copyright owner is adamantly against issuing such a license.
A person can obtain a compulsory mechanical license if the following
three requirements are met: First, the song must be a "non-dramatic
musical work." In other words, you cannot get a compulsory mechanical
license for an opera or music from a Broadway musical or a movie score.
Second, a recording of the song in question must have been "distributed
to the public in phonorecords." In the world of copyright law,
"phonorecord" means an audio-only mechanical playback device.
Third, your use of the song must be limited to phonorecords. If you
want to make a video or put the song in a movie, you must get permission.
Also, it is important to remember that even if you are able to get
a compulsory mechanical license, you cannot alter the basic melody,
lyrics or harmonic structure of the song. You may arrange the song
to fit your style — for instance, if you are a punk rock band,
you may speed up the song as long as you don't change the lyrics
or the basic melody and structure of the song.
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