Public Knowledge

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Copyright Tutorialfor Musicians

Funded by the New York State Music Fund

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What is a Copyright? • A form of protection the law grants to authors.

• Copyright protection extends to all forms of original works such as books, music, movies, paintings and photographs

• Gives a bundle of exclusive rights to copyright owners

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Why do we have copyrights?

U.S. Constitution, Article 1, Section 8:“The Congress shall have Power…to promote the Progress of Science and useful Arts, by securing for limited Times to

Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”

We the People• Copyrights exist to “promote progress”—to encourage

creativity.

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What Can’t be Copyrighted?

• Ideas

• Works not fixed in a tangible medium

• Works in the public domain

• Works whose copyright has expired

• Facts and government documents • Works dedicated to the public

• Anything in the public domain may be used without permission

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Two Different Kinds of Copyrights in Music

Performers’ copyrights cover fixed sound recordings: the recording contained in an LP, tape, CD, or digital file.

Composers’ copyrights cover the song as written, such as lyrics, sheet music, or tabulature.

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What does a copyright give you? A “bundle of rights,” including:

• Reproduction

• Adaptation

• Distribution

• Public Performance} “All rights reserved”

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The Bundle of Rights: Reproduction

the exclusive right to make copies of a work

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The Bundle of Rights: Distribution

the exclusive right to distribute copies of a work- includes selling, giving away, lending

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The Bundle of Rights: Adaptation

• The exclusive right to use a work or portions of it in creating a new “derivative work.”• Writing a screenplay based on a book

• Converting a play into a musical

• Sampling can be a form of adaptation• The law is unclear

• Three choice available to samplers: take a license, go underground or assert fair use or de minimis use

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The Bundle of Rights: Public Performance

• Public performance – the exclusive right to perform the work publicly.• Live performances of works• Broadcasting works over radio or TV• Streaming works over the Web

• Does not extend to private performances• Ex.: Singing “Happy Birthday” at a private party

• No general public performance right in sound recordings, but in 1995, a digital performance right was introduced

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How is the public performance right administered?

Composers and publishers pool their rights and administer rights through Performance Right Organizations (PROs)

www.ascap.com

www.bmi.com

www.sesac.com

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How do you get a copyright?

• Copyright protection is automatic, no “formalities” needed

• But formalities confer important legal benefits and let the public identify the owner

• The formalities –registration and notice• Registration with the Copyright Office

© 1978 Alice Author ℗ 2004 Bob Singer

For more information, see the copyright office website at www.copyright.gov

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How Long Does it Last?

• Copyright duration is limited to ensure that existing works can be used in creating new works

• Duration for works created after 1978• Works by individual, named authors: Life of the author

plus 70 years• Works created by corporate, anonymous and

pseudonymous authors: 120 years from creation or 95 years from publication

• Different rules apply to works created before 1978

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Who owns the copyright?

• The author is the initial owner

• Ownership can be transferred• Transfer of exclusive rights • Licenses • Compulsory licenses

• If two people created music jointly both can be owners

• If a work is created by an employee on the job, copyright belongs to the employer

• Copyright in sound recordings is a little more complicated…

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Ownership of Copyright in Sound Recordings

• All performers, engineers, music director, and instrumentalists involved in creation may be joint owners

• Issue of ownership is decided through contracts

• Major record labels usually ask performers to give up their ownership of copyright

• Several new distribution methods allow performers to retain their copyright

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New Distribution Methods - Online Music Sales

www.cdbaby.com

•Sells music of independent musicians•Artists make $6 to $12 per album and get paid weekly•Also distributes content to online music retailers

•Works with musicians directly, not through labels•50% of the purchase price gets paid to musicians•Makes licensing music easier

•Distributes music under creative commons licenses•Allows public to make donation to artists they like•Albums are rated based on listener reviews

www.magnatune.com

www.jamendo.com

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New Distribution Methods - Peer to Peer

• Although P2P gained notoriety as a means to share music illegally, it also provides greater access to music that may be difficult to find

• The issue - how to use this method of distribution and also get artists compensated

• Legal P2P services have emerged since the litigation against Napster and Grokster. Ex: iMesh and Peer Impact

P2P

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New Distribution Methods - Creative Commons License

• Non-exclusive licenses that allow copyright owners to retain control over their works and yet offer them under terms not traditionally possible

“Some rights reserved”www.creativecommons.org

•Types of licenses - • Attribution• Non-commercial• No derivative works• Share alike

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Limitations and Exceptions

• Rights are not absolute: limitations and exceptions create ways to use works without having to ask permission.

• Can be general or attach to specific rights

• Can freely allow a use, or create a “compulsory license” that requires user to pay a set amount

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Examples of Specific Exemptions

• User does not have to get copyright owner’s permission for certain performances

• Some exempt performances• Performance in course of teaching in classroom• Instructional broadcasts• Non-profit performances• Background music in restaurants, offices and malls that satisfy

certain conditions

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Limitations and Exceptions: First Sale

• A broad limitation on the distribution right

• Purchaser of a copy of a copyrighted work can sell, lease or lend it without permission

• BUT: Sound recordings cannot be rented or leased even if purchased except for non-profit purposes by a non-profit library or educational institution

© ©

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Limitations and Exceptions: the Mechanical License

• A limitation on the reproduction and distribution rights of composers

• Once a composer records and distributes his composition in the US, performers are free to cover his composition and distribute it for personal use if they give the composer notice and pay a set license fee.• 9.1 cents per use, for up to 5 minutes of music• 1.75 cents for each minute over 5

• The Harry Fox Agency (www.harryfox.com) manages licenses for many composers

• Alternative to the compulsory license – negotiating directly with the copyright owner for a lower rate

photo courtesy of flickr.com user drobm found at: http://www.flickr.com/photos/drobm/529403888/ under cc license: attribution|noncommercial|no derivative works: http://creativecommons.org/licenses/by-nc-nd/2.0/

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Limitations and Exceptions: Digital Performance Licenses

• A limitation on digital performance right of sound recordings

• 3 tier system• Over-the-air radio and television exempted• Non-interactive services like satellite radio and Internet radio

can transmit music if they pay a license fee to record label and performing artists

• Compulsory license not available to on-demand download services and limited downloads

• Royalties are administered by SoundExchange (www.soundexchange.com) and Royalty Logic (www.royaltylogic.com)

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Limitations and Exceptions: Fair Use

• Permits use of copyrighted works when such use is in the interest of progress of culture

• Not as well defined as other limitations, decided on a case by case basis

• Courts analyze four factors to determine if a use was fair• The purpose of the use• The nature of the copyrighted work• The amount of the work used• The effect of the use on the potential market for the

copyrighted work

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Limitations and Exceptions: Fair Use- contd.

• Examples of fair uses– use in the course of teaching, research, news reporting, criticism or parody

• Supreme Court cases invoking fair use:• 2 Live Crew’s parody of “Oh Pretty Woman”• Sony Betamax case—allowing home recording

• Other fair use issues:• Mashups (Grey Album, Q-Unit)• Buffer copies

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Infringement

• Unauthorized use that is not covered by any limitation or exception and is not fair use

• Damages • $750 to $30,000 • Up to $150,000 for willful infringement

• Can be reduced to $200 for innocent infringement

• Secondary liability: those who encourage or benefit from infringement can be held liable• Sony Corp. of America v. Universal City Studios (1984)• MGM v. Grokster (2005)

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Music and Copyright Policy

• The Digital Millennium Copyright Act (DMCA)

• Threats to Home Recording

• Performance Rights for Recording Artists

• Orphan Works

• Net Neutrality

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Digital Millennium Copyright Act (DMCA)

• Enacted in 1998• Two major parts:

• Anti-circumvention Provisions: prevent individuals from breaking software locks that control uses of copyrighted works

• Safe Harbor Provisions: limit liability of online service providers that meet certain conditions

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Digital Millennium Copyright Act (DMCA) - the anti-circumvention

provisions

• Law prohibits circumventing DRM: software locks that control uses of copyrighted works

• Also prohibits manufacturing, selling or distributing tools that allow circumvention

• No exceptions for lawful uses

• In music industry use of DRM seems to be restricted to online music sales

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The DMCA - Safe Harbor Provisions

• Limits online service provider (OSP) liability for customer infringement if the OSP removes infringing material

• OSP has to restore material if accused infringer claims that his material does not infringe

• Pressure on OSPs to provide protections beyond the DMCA - filtering user generated content

• The danger: filters can’t discriminate between infringement and lawful use

photo courtesy of flickr.com uploaded by Qthrul found at: http://flickr.com/photos/jcuthrell/107077201/under cc license: attribution|share-alike: http://creativecommons.org/licenses/by-sa/2.0/deed.en

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Threats to Home Recording• Traditionally, easy to tell which rights affected:

• Distribution = selling a record; • Performance = playing on the radio

• New technologies can blur that distinction: • Taping a song off the radio-distribution?

• Supreme Court held home taping allowed in Sony decision

• Audio Home Recording Act allows home recording and requires royalties to be paid on digital recording devices and media

• But copyright owners argue that digital is different:• Lawsuit against XM for the Inno device

12:00

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Performance Rights for Recording Artists

• Copyright law originally didn’t account for sound recordings—so performance rights were held only by songwriters.

• Law amended in 1995 to grant performance rights in digital performances.

• Free, over-the-air transmissions are still exempt.• Now, debate is about free, over-the-air radio and

performance rights.

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Orphan works• Works for which the copyright owner cannot be found

• Work is still under copyright so others cannot use it

• Leads to a lot of works becoming obscure without anybody being able to enjoy them• A Library of Congress commission found that over 70% of

music recorded before 1965 is not legally available because they are out of print and the copyright owners cannot be found

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Net Neutrality• Broadband network operators are under no legal

obligation to keep their networks open to all content, services and equipment

• The Danger: Broadband service providers will be able to discriminate against content and block it or relegate it to slower lanes.

• Users should be able to access any content and run any applications on the Internet without interference from service providers

internet

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creative commons license:Attribution-NonCommercial-ShareAlike 2.5

BY: $

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