Music Copyright Law Exam 1

When is a work prepared within the scope of employment?

-1.if it is the type of work the employee is paid to perform -2.the work is performed substantially within work hours at the work place -3.the work is performed, at least in part, to benefit the employer

Two Categories of works made for hire

-1.works prepared by employees within the scope of employment -employee creates a copyrightable work as part of his/her job, the employer will own the copyright -Employer doesn't even have to tell the employee or have a written contract to that effect

The Statue of Anne

-1710 -vesting the Copies of Printed Books in the Authors or Purchasers of such Copies, during the Times therein mentioned -Granted protection for new books to their authors - SC's rights in their existing books for 21 years -Authors often sold their works to a member company of the SC (a publisher), for a lump sum payment; the company then registered the book in its own name -28 years total of copyright protection, 14 years and another 14 if the author was still alive -only applied to books

Copyright Act of 1976

-21 years of lobbying -Protection,Preemption, Subject Matter,Ownership, Duration, Termination Right, Formalities, Fair Use,Compulsory Licenses -amended over 30 times -since been increased to the life of the author plus 70 year

Community Property in Joint Ownership

-9 states have laws stating that property acquired while people are married belongs to both spouses equally -can decide who owns what copyrights via contract (prenuptial or marital settlement agreement) so that the state law does not apply

Trade Secrets

-Any business information that is kept secret and gives a business a competitive advantage. -no registration process -protection last as long as info is secret

Rights to License Joint

-Any joint owner can authorize someone else to use the entire work; even without the consent of the other authors -an HFA (Harry Fox Agency) policy - they will grant a mechanical license for any song that they administer any share for -cannot issue an exclusive license (this would limit what the other joint owners could do

Fixations

-Copies or Phonorecords -Phonorecords: -Copies:

Pantomimes and Choreographic

-Expressed by movement (dance) or physical attitudes and are usually fixed in videotape or film -actual moves aren't copyrightable -consist of recorded or notated movements of a dancer.

Duty to account to co-owners

-Goes hand-in-hand with being able to license the work without the permission of the other joint owners -To account to the other joint owners for their share of the profits that you receive

Expression

-Ideas cannot be protected by copyright -If an author expresses an idea in an original manner, and fixes that in a tangible form, the particular expression will be protected

Authors Right Philosophy

-Natural Right -morally entitled to control and exploit the products of the author's intellect -the right to be credited as the author and to prevent the work from being changed substantially -many Europeans countries use this

Patents

-Protects certain inventions, discoveries, and product designs -expensive and bus more difficult to obtain than copyright -may or may not be granted protection after an exemption by the PTO -invention must be novel and non-obvious (copyright only have to be original and fixed in a tangible form -strongest type of protection, but only lasts 20 years

Dramatic Works

-Tells a story through action, dialog and narration; may include music -E.g. West Side Story

Which Philosophy is US copyright Law based on

-User's Right Philosophy -1909 Copyright Act -economic rights, or trade-based philosophy - US largest producer of intellectual property

Joint Authorship Problems

-Usually happens when the contributors do not discuss how to split the ownership -Common when songs are composed in the recording studio -must be agreed and put in writing -can undo it with a split sheet, have it undone in writing by both parties

Motion Picture and Audiovisual

-a musical composition contained in an audiovisual work is considered part of the audiovisual work -due to the limited rights afforded to sound recordings, a recording that is part of a motion picture soundtrack will have greater rights than a sound recording

Works of the US Government

-cannot be copyrighted

Rights and Duties of Joint Ownership

-copyright law provides some default rules; joint owners can agree their own different rules - in writing -Joint owners are equal - each co-author owns an equal share of the work -joint owner owns an equal, undivided interest

How Monopoly is limited

-length of time -only apply to original works of authorship -only applies to expression rather than ideas -certain uses are permitted without the owners consent

Compilations

-may be literary, musical, dramatic or other types of work -A work formed by the collection and assembling of preexisting materials or of data that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship. -are copyrightable

Names, Titles, Slogans, Short Phrases:

-not protected by copyright but can trademark it

Musical Works

-protected -contain domination of melody, harmony and rhythm -covers songs that are instrumental only, as well as those with lyrics -owned by publishing company -Can be fixed in a phonorecord or a copy

Trademarks

-word, name, symbol, or device or any combination used to identify products or services and to distinguish them from those manufactured or sold by others -protect names, designs, logos, slogans, symbols, colors, packaging, containers -to obtain protection need to use mark in commerce -can las indefinitely as it stays in ruse -benefit owners protect public form confusion -can be registered with federal and state government, but not necessary for protection, 10 years of protection

Literary Works

-works, other than audiovisual works, expressed in words, numbers, or other verbal or numerical symbols or indicia, regardless of the nature of the material objects, such as books, periodicals, manuscripts...in which they are embodied -words or ideas not copyrightable -based upon the arrangement of words that an author uses to express idea

Requirements for Joint Ownership

1. Two or more authors must contribute to the creation of the work. 2.They must all intend to combine their contributions into one single work

How Works for Hire are treated by Copyright Law

1. initial ownership belongs to the employer / commissioning party (not the author) 2. copyright term (i.e. protection) lasts 95 years from publication or 120 years from creation, whichever expires first (not tied to the authors life) 3. There is no termination right

Rules about Compilations

1.only extends to the material contributed by the author of the compilation - not to the pre-existing materials. (the pre-existing materials remain unaffected) 2.Does not extend to any part of the work that uses pre-existing materials unlawfully

Licensing Act

1534 and 1557 revision -passed requiring all books to be registered with the Stationers' Company (SC) which would record and own the "copy right" (the right to print copies) -1694 expired and monopoly broken -The precursor to copyright was a means of censorship rather than a means of protection for authors

Victoria Statutes

1842 -copyright-ability of music in England

fair use

Allows people to use copyrighted works without permission and without paying for their use in certain circumstances, thereby preventing copyright from acting as a deter- rent to free speech.

Transfer of Copyright

An assignment, mortgage, exclusive license, or any other conveyance, alienation, or hypothecation of a copyright or of any of the exclusive rights comprised in a copyright, whether or not it is limited in time or place of effect, but not including a nonexclusive license. -must be made in writing -Non-exclusive licenses do not have to be in writing - but it is a good idea -two common types: assignment and exclusive license

Phonorecords

Any type of recording; cassette tapes, compact discs, digital audio tapes, MP3 files

Not protected by copyright

Facts, Unifixed works, names, titles,

Copies

Material objects other than phonorecords --E.g. lead sheet, written lyric, musical score, books, periodicals, microfilm, etc.

Intent of Joint Ownership

Only have to intend, don't have to create at the same exact time what courts will look at: -Behavior of the authors -Quality and quantity of the contribution -If it has been registered -May not actually contribute anything and yet still be one of several owners -transfer of copyright via contract -contributions to not have to be equal in a joint ownership

Initial ownership

Ownership begins upon creation of the work -do not have to register -not dependent on registration -author of the work is the initial owner -may Authorize others to exercise any of the rights -Transfer ownership to others

License

Permission to use intellectual property is granted by this -state how the work can be used and what compensation the Copy.. owner will be paid for allowing use -compensation usually in the form of royalties -most are non-exclusive

Exclusive Rights

Reproduce Distribute Adapt Publicly Perform Publicly Display

What kind of writing is required for Transfers

Very broad (e.g. an endorsed check, simple letter or memo) Must be signed by the rights holder Must specify what rights are being transferred Must specify who is acquiring the rights Must specify the duration of the transfer Must state whether it is exclusive or non-exclusive

Assignment (Transfer of Copyright)

When a copyright owner transfers its entire ownership interest in a copyrighted work (like a sale)

Exclusive License (Transfer of Copyright)

When a copyright owner transfers one or more of its exclusive rights but retains one or more rights as well.

Copyright

a form of property ownership for certain types of artistic and creative works -the law gives creators and owners of creative works the right to control and profit from the use of their creations -get certain exclusive rights over the use of their works -protects songs, sound recordings, movies, television shows, plays, dance routines, books, poems, photographs, paintings, sculpture, computer programs, and websites. -original works of authorship fixed in any tangible medium of expression, nor or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device

Royalties

a percentage of the price paid for the use

derivative work

a work based upon one or more pre-existing works

Joint Ownership

a work prepare by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole -are co-owners of the copyright in the work

Sound Recordings

are separate and distinct from the underlying musical, literary, or dramatic works whose performance may be contained on the recording. -also called master recording E.g. A recording of a song = musical work + sound recording -E.g. Audiobook = literary work + sound recording -must get permission from the owner of the copyright in the underlying work -all sorts of sounds, -does not protect against imitation of the recorded sounds -owned by the record company -must obtain a license from the copyright owner of the song to reproduce the song in phonorecords -all such recordings will be protected for at least 95 years

Consideration of privacy

author may not want their work made available to the public

Personal Property

basically protects everything that can be owned other than real property -Ex: Car

Copyright Act of 1909

copyright protection to 56 years -protected only published works, leaving unpublished works protected by common-law copyright -important development for music composition - created a mechanical license -Provided for a $.02 royalty to be paid to the copyright owner of a song for each record distributed containing the song; so long as the copyright owner had previously authorized the first recording and distribution of the song and then in 1972 added sound recordings

Public Domain

creative works not protected by copyright -not owned by anyone -you can use them without permission -usually works become it because the copyright expired

Johannes Gutenberg

invented the printing press -1436

Economic interest for Copyright

investors/owners ($500k per album, $50m per film) should be able to get a return on their investment

myth of the six bar rule

is that any melody less than six bars long is not copyrightable -courts have held that as little as two or four bars of music may be protected by copyright -95% of songs are all melodies -Harmonies are not copyrightable and rhythm not copyrightable

Originality

means it has been independently created by its author rather than copied from another work -have some minimal degree of creativity -challenging for works like telephone directories and accounting forms -In other words, if two songwriters each compose identical songs without copying from each other, each would own a copyright in the song because they were independently created -little creative work is totally original because virtually all creativity draws on already existing elements

fiduciary obligation

moral obligation to do something

Melody

most recognizable element of song, -rhythmically organized sequence of single tones so related to one another as to make up a particular phrase or idea -are no strict rules to determine how long a creative melody has to be in order to be copyrightable; some short musical phrases may be considered ideas rather than expressions and therefore not copyrightable themselves.

Record Company

owns the master

Publisher

owns the song

Intellectual property

protects certain products of the mind and affords ownership rights to things that have no physical existence -it can be easily infringed upon - Ex: copyrights, patents, and trademarks.

Real Property

protects land or things that are built on land, such as houses and buildings

Copyright ability

rights to reproduce, distribute, adapt (or creative derivative works), publicly perform, and publicly display a copyrighted work.

What does a court look at when the consider an employee work for hire?

salary, benefits and taxes

Two specific categories for Works for Hire

specially ordered or commissioned works Do not need an employer / employee relationship Need the work to be in one of the following categories AND need to agree it to be a "work made for hire" in writing A contribution to a collective work (e.g. magazine article) A part of a motion picture or other AV work (e.g. screenplay) A translation A supplementary work (a work prepared for publication as a secondary part of a work by another author such as a forward, appendix, etc.) A compilation An instructional text (e.g. a manual for stereo equipment) A test (e.g. SAT, LSAT) Answer material for a test An atlas

If work for hire does not exist

the party commissioning the work can have the creator assign the copyright to the commissioning party via contract -the creator will have a right to terminate the assignment

User's (Public's) right Utilitarian Philosophy

to encourage the widest possible production and dissemination of artistic works -assumes authors will only invest sufficient resources in creating and publishing new works if they have ownership rights that will enable them to profit from their works' distribution to the public -must allow subsequent creators to draw on copyrighted works for their inspiration and education -Result= a limited monopoly -the US uses this

Primary Purpose of Copyright in US

to promote the creation and dissemination of creative works to the public

("compulsory") mechanical license

to reproduce and distribute sound recordings of musical compositions

Secondary Purpose of Copyright in the US

to reward authors for their creations

Precursor to copyright

was a means of censorship rather than a means of protection for authors

Works made for hire

when a person who treats a work is not considered to be the author and therefore not the initial owner of the copyright -person or party on whose behalf the work was created is considered to be the author and initial owner of the copyright -corp. or business entity can qualify as an author in this situation; the actual greater has no rights

Lyrics

words are written to be combined with music, the words will be part of a musical work -Cannot get protection for short and simple phrases - must be an original expression