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Copyright
1. Music Copyright
History:
1790 Constitution Article I, Section 8
…to promote progress of science and useful
arts…limited time….exclusive rights
Major Revision 1909
Most recent 1976, became effective 1/1/1978
2. What is Copyrightable?
Original Works of Authorship
What constitutes “Original” “Authorship”
Not Ideas, but the “Fixation” of an
Expression of the Idea
3. What is Copyrightable?
Literary Works
Musical Works, including Words
Dramatic Works, including Music
Pantomimes & Choreography
Pictorial, Graphic, & Sculptural Works
Motion Pictures & Audio Visual
4. What is Copyrightable? cont.
Sound Recordings
Not under the 1909 Law, but protected by
other state statutes
Architectural Works
5. What is Copyrightable? cont.
Name of Band is Not
Band Name is a Trade Mark/Service Mark
issue
Original art of the Band Name Is
6. When is A Work Copyrighted
When it is “Fixed in any tangible medium
of expression” . . . written, recorded, etc.
Proving the date of fixation is the problem.
7. Exclusive Rights
Reproduce (Duplicate)(Mechanical Royalties)
Derivative Works
Distribute Copies
Perform Publicly (Performance Royalties)
Display Publicly
Digital Performance Transmission of Sound
Recording (Congress considering extending to
all)
8. Exclusive Rights cont.
Sound Recordings do not have right of
Performance Except Digital Transmission
What does this mean?
9. “Fair Use” (p. 93)
Certain Uses are Allowable
Used For: Criticism, Comment, News
Reporting, Teaching, Scholarship,
Research
No Strict Definitions
10. Two Musical Copyrights
Form PA (Performing Arts): the work of
art (song: music & lyrics); songwriter
owns rights
Form SR (Sound Recording): the
“fixation” of sound, not the underlying
song; performers, producer, record label
owns rights (depending on contract)
11. Fair Use
“Fair Use” is a “Legal Defense” to
Infringement
1. Purpose or Character of the use
2. Nature of the Copyrighted Work
3. Amount & Substantiality
4. Effect on the Potential Market
12. Fair Use
Non Infringing Performances
Remember these must meet the test
1. Performance or Display, Face-to-face
teaching, non-profit ed.
2. BUT, copying various chapter to make
your own textbook effects the textbook
market
13. Fair Use
Non Infringing Performances
2. Performance, display, transmission (non-
dramatic) if.
a. Regular part systematic instruction
b. Directly related to teaching content
c. Transmission reception is in classrooms
14. Fair Use
Non Infringing Performances
3. Performance (non-dramatic) religious
service.
BUT, copying songs from book effects the
print music market
15. Fair Use
Non Infringing Performances
4 Performance (non-dramatic) without
commercial advantage (payment for
performance)
a. No direct or indirect admission or
b. Proceeds (after production costs) not
used for financial gain
16. Fair Use
Non Infringing Performances
5. Performance (food/beverage musak or
TV)
a. Less than 3750 sq ft
b. If more than 3750
c. • less then 6 speakers, less than 4 per
room
d. • less than 4 TVs, 1 per room
17. Fair Use Chart For Teachers
http://www.mediafestival.org/copyrightchart.
18. FAIR USE CASE
Campbell v. Acuff-Rose Music, Inc (1994)
Pretty Woman/Oh, Pretty Woman
District Court held as Fair Use
Court of Appeals, commercial nature
disqualified it
Supreme Court: found the more
transformative the better, purpose &
character created a new work
19. Duration of Copyright (p.100)
1909 law, two 28-year terms equals 56 years
Published or registered prior to 1923 are “Public
Domain”
1976 Law, effective 1/1/1978, with the 1998
Sonny Bono Copyright Term Extension Act
Duration Currently: Life plus 70
20. Duration of Copyright cont.
“Work Made For Hire,” anon. or psuedo.
Shortest of:
95 yrs from Pub. or
120 yrs from Creation
Published between 1923-1978 overlap
the new law. Granted 95 yrs.
Copyright Chart
21. Ownership
The “Bundle of Rights” can have multiple
owners. WARNING; always have a formal
agreement.
Ownership of the copyright is DISTINCT
from ownership of a physical object
(master tape)
“First Sale Doctrine” establishes rental
industry
22. Transfer Assignment
Any of the 6 rights can be transferred or
assigned
Written agreement
File with Copyright Office
23. Termination of Transfer
Any Transfer made after 1/1/78 can be
recaptured
1. A 5-year window between end of year
35-40
2. Right of Publication: 35 yrs from pub.
OR 40 yrs from execution
24. Termination of Transfer cont.
3. File “Intent to Terminate” not less than 2
yrs before or more than 10 yrs before
4. Contract language does not effect this
5. 1923-78, 5-yr window at the end of 75
yrs
6. “Work Made for Hire” cannot be
recaptured
25. Work Made for Hire (95)
Employer is considered the author
(owner)
Criteria
1. “Work prepared by an employee within
the scope of employment”
2. Work Specifically ordered or
commissioned” AND . . . .
26. Work Made for Hire cont.
AND must sign agreement stating “Work
Made for Hire”
Employee means SS benefits and
withholding taxes
27. Arrangements
Arrangement is a “derivative work” no
ownership
“Request Permission to Arrange” form
For Recording a Mechanical License
replaces the above form
Except Public Domain, may receive
royalties
28. Sound Recording
The “Fixation” of the sounds (Form SR)is
different from the “Musical Work” (Form
PA)
Rights: Reproduce, Derivative, Distribute,
Perform by Digital Audio Transmission;
no performance rights for other
transmissions.
29. Sound Recording
The owner of the SR copyright can only
duplicate the exact fixation of sounds, not
another version.
It is Legal to make a new recording that
imitates another without violating the SR
Copyright
30. Question
What are the implications of only
Performance Rights for Digital
Transmission?
31. Quick View of Licenses
Mechanical - to duplicate
Performance - to play in public, live or
recorded
Synchronization - putting music to
pictures
Transcription - music for syndicated
programs & background music
Master Use – to license a recording (SR)
32. Compulsory/Mechanical
License
Owners have control of the first recording
After, they are “Compelled” to grant a
license for recordings (not Transcriptions)
Notify copyright holder of intent within 30
days (before or after), before distributing.
Can’t find owner, notify Copyright Office
34. Mechanical Royalties
Paid for each Phonorecord when “made
and distributed”
Distributed Means “voluntarily &
permanently parted with its possession”
Sale is not required, i.e., free goods
Returned items are not “permanently
parted”
35. Negotiated Mechanical License
Alternative is to Negotiate for lower rate
Record Labels Want to Pay Lower Rate
on “Controlled Compositions”
37. Formalities cont
“All Rights Reserved” adds protection in
foreign countries under Pan-American
Convention
38. Formalities cont.
Omission
1909-1978 invalidated copyright
1/1/78 - 3/1/89 does not invalidate IF
• missing on small number
• registration made within 5 yrs AND
reasonable effort made
• owner requested no notice in writing
39. Formalities cont.
2. Deposit of Copies
Within 3 months deposit LOC 2 copies of
“Best Edition”
1909-1977 required sheet music
1978 - a recording
42. Infringement (p.107)
Using Copyright Material Without
Permission or License
Remedies: Injunction, Impoundment,
Destruction, Damages (Actual Damage or
Statutory Damages)
Unregistered Works: No Statutory
Damages or Lawyers Fees
43. Piracy (p.108)
Manufacture and Sale of Phonorecords
without permission or License
1982 Piracy & Counterfeit Act
Max $250,000 & Jail
44. Audio Home Recording Act
1992
Allowing home duplication
Royalty payment & “Serial Copy
Management System”
Dual CD Recorders use SCMS
“Audio” or “Music” CDs include a Royalty
divided between featured and non
featured players
45. Trade Names Trademarks
Naming Band
• DBA or Fictitious Name Form
• Check with Unions, ASCAP, BMI, SESAC
• Library: Index to the Trademark Register
46. Band Names
Written Agreement:
Who Owns Name,
How is Ownership Shared,
How Does it End
What Happens when People Leave the
Group