Publishing - Ch 3, 4, 5

first sale doctrine

- copyright owner entitled to compensation for first sale of copy of phonorecord embodying copyrighted work - owner may dispose of it/ transfer it with exceptions of prohibitions & duplication - transferring phonorecord through rental is generally not permitted - prevents copyright holders from exercising unreasonable control over physical product once it has left distributors (basis for video rental)

termination or recapture

- copyright transfer/ licenses granted after Jan 1 1978 may be rescinded by grantor after 35 years - in practice writers and publishers may negotiate shorter term to balance writer's interest in recapturing copyrights

subsisting copyrights in their renewal term

- current law provides for pre-1978 works, a total of 95 years of protection - significant monetary value of popular songs known as "standards" (strong incentive for authors & publishers strong incentive to establish claims on additional 20 years)

When work is made for hire, who is the owner of the copyright?

- employer is considered the author & owner of work under copyright law - arrangement developed in Tin Pan Alley day - publishing companies employed salaried songwriters to work in-house full time - today typically work as independent contractors - can protect against this by looking at contract w attorney

the Brill Building

- epicenter of 1950 songwriter scene - Goffin & King - also saw people writing their own material at this time (CAROLE KING!!!!!!)

the music modernization act

- establish Mechanical Licensing Collective to grant compulsory blanket mechanical licenses to digital interactive services, smoothed ability for streamers to access rights to desired titles from songwriters & publishers, consider "free market" principles in compulsory rates to increase income over itme - create royalty struct to compensate pre 1972 master owner, historically been unable to collect - statutory right for key participants in recordings to receive small portion of royalties

Why is songwriting so important to the music industry?

- everything begins with songwriter - no songwriters, no music industry - fuel that powers global music business machine - new forms of media expanded audience for music (but payoff for songwriters uneven)

How is the craft of songwriting learned?

- formal study or private instruction - college - composition, ear traingn - books for songwriters - select 100 of leading standards & study them phrase by phrase, line by line, chord by chord - talk to songwriters, read interviews, open to all advice & feedback

the digital performance right in sound recording act of 1995 (DRPA)

- gave record companies & owners of sound recordings to perform copyrighted work publicly by means of digital audio transmission - now collect audio only digital performance royalties from digital cable and sattelite TV, internet, and satellite radio providers

rights in a name

- groups should draw up written agreement that explicitly states who owns professional name - how ownership is shared - under what circumstances shares of ownership end or are modified when individual performers join/ leave the groups - avoid lawsuits later on

copyright protection after january 1, 1978

- in works created on or after Jan 1, 1978 extends to work from its creation & endure for term consisting of life of author + 70 years - joint works - enjoy copyright until last survivor + 70 years - work made for hire - exists for 95 years from date of publication or 120 years from year of creation (whichever expires first) - made for hire not included in provisions concerning termination of grants for 20 year extension period

copyright royalty board

- legislative body in matter concerning copyright - copyright royalty tribunal - used to adjust compulsory royalty rates & held hearings to determine whether rates & distribution are fair - CRB in 2004 --> 3 copyright royalty judges who determine rates & terms for statutory licenses - make decisions on distribution - royalties within jurisdiction include cable & satellite retransmission, digital performance/ phonorecord delivery, mechanicals, & educational broadcasting

Staff writers

- less and less common - most receive weekly salary - treated as advance on future earnings - recoupable - on salary are people who are made for hire (songs are property of employer & writer can't claim copyright) - song doctor - rearrange& fix songs to make it more palatable

Performer's dual role

- many writers begin as performers - rock performers usually also write for act - some see performing as showcase for songs & revenue source - some see performers first and write only for deals - others move seamlessly

What kind of license publishers negotiate to record their properties?

- mechanical license - implicit understanding that producer may create new arrangements w minor changes

Income from recordings

- mechanical royalties - distribution of recorded music - writer gets 50% (writers share) and publisher gets 50 (publisher's share) - eg. 500,000 copies sold of 2 songs on album, each under 5 min in length (statutory rate 9.10) - 500,000 x 9.10 x 2 = 91,000/2 = 45,500 each - writers & singer songwriters routinely negotiate rate lower than statutory figure, which cap total mechanicals that will be paid on any one album

renewal registration

- no longer requirement to register renewal of pre1978 copyright during 28th year to keep from falling into public domain - advisable to enhance enforceability of copyright - determine who has right to use derivative works (transfer/ license) made before expiration of original term

What is the difference between a good song and a hit song?

- not all hits are good songs and not all good songs are hits - hit song gets significant radio airplay, streaming, and downloads - metrics are quantifiable - good song is not quantifiable and harder to define

copyright covership

- not to ideas themselves, to expression of ideas - bc no one can copyright idea (genre, beat) development of musical forms, w elements borrowed from other sources - unauthorized exploitation of work is prohibited - protection granted to original works of authorship (had to be fixed in tangible medium, where they can be perceived/ reproduced/ communicated) - subject to protection even if unpublished

Home studio

- now highly flexible songwriter - now matters on personal preference - many prefer home studio - most successful songwriters write all the time, work out a schedule - others are more productive working in spurts - home studios allow for inspiration and immediate recording

deposit

- owner/ publisher must depost, within 3 months p date of publication, 2 complete copies of best edition of work - sound recordings - 2 complete phonorecords, any printed/ visual material published w phonorecords - no longer required - certain conditions deposits made prior to any attempt to register may be used to satisfy deposit requirements for when author registers

royalty under compulsory license

- payable for every phonorecord made & distributed in accordance with license - manufacturer not liable for royalty payments on records returned that haven't been sold - giveaways trigger royalty payments

sound recording performance right exclusion

- performance rights - record companies are however allowed to collect a royalty on digital performances of sound recording on digital cable/ satellite TV, internet, radio - for many years didn't receive performance royalties for radio/ TV

Performance Royalties & New Revenue from Streaming

- performance royalties - generated by performance of writers works, live or through recordings - collected by PRO, issues blanket licenses to broadcasters for performance - remits money to writer based on their use - big money from Spotify - may collect money from many other options - sheet music, folio sales, ringtones

record counterfeiting penalties

- piracy & counterfeiting is a felony - maximum penalty of $250,000 + jail terms - maximum penalty if found illegally manufacturing/ dist within 190 day period at least 10 copies/ phonorecords or copyrighted works with value of more than $2500 - trending towards increasing penalties

statutory rate

- publishers limited by statute as to what royalty rate they may charge record makers - 9.1 cents per song for songs up to 5 min

criteria for fair use

- purpose/ character of use - nature of copyrighted work - amount/ substantiality of portion used - effect of use on potential market

controlled composition clause

- recording company will pay only percentage (75%) of current mechanical royalty rate to composer & publisher for any song written/ coautjhored by that artist/ composer - contractual cap on total mechanicals may further lower his or her rate

registration

- registration of claim in original or renewed & extended period of copyright - must be accoompanied by deposit - unregistered work lacks certain advantages - can't sue for copyright infringement - may be registered @ time of copyright, even if unpublished - may be made by author as owner or publisher as exclusive licensee - sound recording is acceptable, not just sheet music (advantages for people who improvise) - certificate of registration sent to applicant if all requirements met - effective date is when application, deposit, and fee all received

the digital millennium copyright act of 1998 (DMCA)

- requires webcasters pay licensing fees to record companies - criminalizes production & dissemination of tech, devices, or services intended to circumvent measures that control access to copyright works DRM = digital rights management - limits Internet service providers from copyright infringement liability for simply trnasmitting info over internet (but expected to remove material that appears to be)

rights in names & trademarks

- rights in trade names & trademarks not covered under copyright law - company names & performer names can't be protected under copyright law - covered under broader branch of law concerning unfair competition (Lanham act) - federal registration of name or mark must apply to US patent & Trademark Office

transfer or assignment

- rights may be transferred/ assigned to any other persons - most writers need to transfer/ assign some rights to receive income - assign publishing & recording rights to others, usually through granting of exclusive licenses - must be in writing to be effective - can even subdivide individual rights (eg. split the publishing)

selection of a name

- select name with care to avoid duplication/ confusion with similar name - inquire of organizations ASCAP BMI SESAC to make sure - group's attorney can help

Label-affiliated deals

- singer-songwriters can earn artists & writer's royalties - may be more attractive to publishers - don't have to persuade anyone - potential for big earnings - will pressure to put rights in label's publishing arm - controlled composition agreements

determining infringement

- sometimes difficult to determine (by fact aka jury) - eg. Robin Thickes "Blurred Lines" on Marvin Gaye's "gotta give it up" - similar vibe but dissimilar music & lyrivs - imitating sounds is not basis for infringement

What are the typical characteristics of a hit song?

- song gets appealing initial performance (by well known performer) - record company gets behind it & promotes strong airplay - song & recording suit taste of current market - record distributed effectively

What are the typical characteristics of a good song?

- song is memorable- often accomplished by use of hook - song has immediate appeal - lyrics contain overall theme & use vivid phrases/ imagery - song well crafted & exhibits arc - discernible beginning, middle, & end

days of Tin Pan Alley

- songwriters were hired to create popular songs for sale as sheet music - evenutally put focus on writing hit songs to feed artist, but stayed as songwriters wrote & artists performed

formalities

- specific actions claimant must take to validate claim to copyright - notice of copyright - deposit of copies - registration of claim to copyright - formalities for US works became optional after 1989 but should be done to be safe

subsisting copyrights in their first term

- still in first term continue for original 28 years, then endure for renewed & extended further term of 67 years - can apply to renew within 1 year before expiration of original term

compulsory license bypass

- stringent provisions in respect to notice & accounting requirements - industry evolved to prefer negotiated mechanical licensing - new procedures for licensing streaming & downloads

notice of copyright on printed music

- symbol C ,year of first publication & All rights reserved - compilations/ derivative - year of first publication - name of copyright owner/ abbreviation after year - position affixed to copy so to give reasonable notice

notice of copyright on phonorecords

- symbol P, year of first publication, & name of owner of copyright - placed on surface of phonorecord/ label or container - audiovisual works require C

What licenses are required to use music in a film?

- synchronization license for use of preexisting copyrighted composition - master use license for recording

copyright protection after 75 years

- those who would expire are automatically granted copyright for 95 years - if writer wants to recapture composition from publisher, within 5 year (of original term) terminate grant of renewal term (notice of termination - must be given to publisher not less than 2 years or more than 10 years ahead of termination date) - ownership by author afterwords is free and clear

arrangement of public domain compositions

- underlying work not owned/ controlled by anyone - arranger's publisher may demand mechanical royalties from label and usually splits w arranger 1/2 - ASCAP, BMI, SESAC pay usually reduced royalties to authors/ publishers - may receive from sale of printed editions of arrangement - more privileges in European countries (not required to secure publishers approval & accorded parallel rights)

What economic coalitions line up against each other as technological change comes onto the platform to persuade the courts / congress to rule in their favor for copyright?

- users - reluctant to pay - creatives - want to make money and have rights for their recordings

Arranger's rights

- usually create work for hire, receive flat one-time fee based on AFM scale - generally have no rights of copyright ownership, receive no royalties from record sales, nor share in income from composers/ publishers from licensing/ performances of their arrangement

copyright ownership

- vests in author of work, includes bundle of rights - multiple authors - ownership shared; composer's share 50%, lyricist's share 50% - sometimes gets more complicated if more people

questions to judge prospective publishers

- what is publishers reputation? is information objective and current? - what does publisher commit to do to promote music? - what is the firm's long term track record? recent success? - is company making money? enough working capital to carry over lean periods? - who in the company cares about you and your material? - what are the firms resources? - if your songs hit, does company know how to set up licensing arrangements abroad to maximize foreign income?

What are some effects of collaboration in songwriting?

- when approaching publishers should have details figured out - how income distrupted, etc. - special working relationship between composer who doesn't read/ write music & arranger

notice errors or omissions

- works between 1978-1989 omission of notice from copies doesn't invalidate copyright under conditions - relatively small number has omissions - registration made before/ within 5 years without notice; reasonable effort made to add notice - notice omitted in violation of express requirement in writing that, as condition of copyright owner's authorization, they bear prescribed notice

What condition for work for hire do most disputes center around?

- works made for higher are prepared by employee within scope of employment or specifically ordered/ commissioned fo ruse in one of several categories - dispute along language of first condition - employee? what exactly does that mean - law doesn't precisely define who the owner is

recordation of transfer

- written agreement may be filled with Copyright Office, although not necessary for transfer to be effective - filers must pay specified fee - Copyright office receives Certificate of Recordation - constructive notice of facts stated in Certificate of Recordation - if transfers are in conflict, first transfer to be properly executed prevails

Exclusive rights of owners of a sound recording

1. to reproduce copyrighted work to duplicate sound record (limited to sounds fixed in recording) 2. prepare derivative works based on sound recording 3. distribute phonorecords to public by sale/ other transfer of ownership 4. perform by digital audio transmission

copyright

form of protection provided by laws of US for IP body of exclusive rights granted by law to authors for protection of their work

created

when a work is fixed in a copy/ phonorecord for the first time, portion that has been fixed at any time constitutes the work as of that time & each version is a separate work

audiovisual works

works that consist of a series of related images intended to be shown via projectors, viewers, or electronic equipment, together with accompanying sounds, if any

device, machine, or process

one now known or later developed

publication

- The distribution of copies of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. - also the offering to distribute to a group of persons for further distribution, performance, or display

works in the trunk

- copyright in work created before Jan 1, 1978 subsits from that time, endures in life of author and 70 years after death - songwriters usually leave taking care of renewals to publishers, attorneys, and adminstrators

What are cases in which copyright infringement goes unnoticed?

- a lot of it goes unnoticed - without major financial consequence, limit to nominal amount - library/ school out of lack of understanding of law, no damages awarded - if copyright was not registered before infringement began

Why do so few songwriters find commercial acceptance for their material?

- ability & desire - unwillingness to work at songwriting as serious business enterprise - publishers inundated with submissions - networking angle & difficulty getting heard increases

What are the overarching details of the business of writing?

- ability to write good songs is only part of it - vary depending on type of writer & type of publishing arrangement (staff writer vs single song contractor vs publishing company owner) - one constant - writer can expect to spend as much time on promotion as creation - successful only if those songs they create are exploited - keeps royalty revenue floying in

the audio home recording act of 1992 (AHRA)

- allows home audiotaping - implements royalty payment system and serial copy management system for digital audio recordings - home taping no longer infringement of copyright - payment of royalties under this act usually too small to be distributed

Musical arrangements

- arrangements considered derivative work - arrangers must obtain permission of copyright owner - granted only under particular circumstances (esp if it might alter original) - sometimes welcome potential exposure & income from cover

Income sources of a songwriter

- broadcast performances (PRO) - nonbroadcast performance (PRO) - mechanical royalties for physical format (Recording company --> publisher--> 50/50 writer) - sheet music sales (pennies per song/ % of paper sale from publishing company) - synch of music (publisher shares 50% w writer) - special permission, licenses (50-50) - dramatic (or grand) rights (50-50) digital (vaires, usually PRO or publisher to writer)

How can you deal with gaps in expertise of songwriting?

- collaborate with those who are good at what you're not as god at - strong point is melody, find lyricist - find collaborator through networking - PROS, songwriting nights, social networking

compulsory license

- complete owner of recording rights until they license material for first recording - after that compelled by law to license any other person to produce/ distribute recordings of copyrighted music in exchange for fixed statutory royalty

imitation exclusion

- copyright in sound recording with respect to derivative work do not extend to making/ duplicating of another sound recording w independent fixation of sounds even if they mimic those in copyrighted sound recording - can't simply be a recorded copy of original

Publishing options

1. can search out established publisher & sign contract with firm 2. can negotiate contract w publisher in which writer gets piece of publishers share of income = copublishing/ splitting the publishing 3. writer can set up publishing company 4. personal manager can set up publishing company owned by writer and administered by manager 5. can enter into partnership/ set up corporation with others to operate a publishing company 6. might be offered staff job by publisher

fair use doctrine defenses

1. for education 2. performance if for government/ nonprofit/ education, directly related to teaching content &made for reception in classroom 3. work of a religious nature in religious settings 4. performance without commercial advantage/ payment to any people involved if no admission charge & proceeds used for charitable cause 5. small facilities playing on TV or radio 6. performance by vending establishment to promote sales

remedies for infringement

1. injunction 2. impoundment 3. destruction 4. damages (actual damages, additional profits, sometimes statutory damages 750-3000, if willful will be more, attorneys fees recovered)

conditions to obtaining compulsory license

1. only if primary purpose in making phonorecords is to distribute them to public for private use (excludes transcriptions eg. theme songs & mood music) 2. may not obtain license for work in making of phonorecords duplicating sound recording fixed by another unless it was fixed lawfully & authorized by owner (or if fixed before Feb 15 1972) 3. includes privilege of making musical arrangement provided it doesn't change basic melody/ fundamental character of work 4. must notify copyright proprietor within 30 days of making & before distributing

1976 copyright act essential provisions

1. preempts nearly all other copyright laws (statutory & common) 2. duration lengthened over the years - life of author + 70 years (on or after Jan 1, 1978) 3. amended in 90s to provide digital transmission right for sound recordings (performance royalties) 4. negotiated licenses between jukebox operators & music copyright owners (through PRO) rather than compulsory licenses 5. excused with fair use 6. policies & rates periodically reexamined 7. formal procedures (copyright notice, renewal) treated more permissible/ removed

Exclusive rights

1. to reproduce copyrighted work in copies/ phonorecords 2. to prepare derivative works 3. to distribute copies or phonorecords to public by sale/ other method 4. to perform work publicly 5. to display work publicly 6. to perform work publicly by means of digital audio tranmission

digital phonorecord delivery

A term in the copyright act for a download of a recording/ through digital transmission (now includes interactive streaming)

pseudonymous work

A work on the copies or phonorecords of which the author is identified under a fictitious name

work made for hire

A work that is (1) prepared by an employee within the scope of his work, or (2) specially ordered for use as contribution to collective work

derivative work

A work that is based on or derived from one or more existing works (and previously published).

collective work

A work, such as a periodical issue, anthology, or encyclopedia, in which a number of contributions, constituting separate and independent works in themselves, are assembled into a collective whole. - copyright in each separate contribution is distinct from copyright of collective worth - vests initially in author

1976 copyright act

Congress wanted to seek balance between copyright owners & users implemented to "minimize any disruptive impact on structure of industries involved and on generally prevailing industry practices"

copies

Material objects, other than phonorecords, in which a work is fixed and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.

sound recordings

Works that result from the fixation of a series of musical, spoken, or other sounds, but not including the sounds accompanying a motion picture or other audiovisual work, regardless of the nature of the material objects, such as disks, tapes, or other phonorecords, in which they are embodied.

transmission program

a body of material that has been produced for the sole purpose of transmission to the public in sequence and as a unit

compilation

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

best edition

an edition that the Library of Congress determines is the most suitable for its purposes

transfer of copyright ownership

any conveyance, such as an assignment or license, 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.

proprieter

copyright owner

fixed

embodiment in copy/ phono record is sufficiently permanent/ stable for it to be perceived, reproduced, or communicated

duration of copyright

life of author + 70 years ( amended in 1998 ,it was initially no more than 56 years, in 1978 changed to life + 50 years)

works of authorship categories

literary works musical works dramatic works pantomimes/ choreographic works pictorial, graphic, sculptural works motion pictures/ other audiovisual works sound recordings architectural works

phonorecords

material objects in which sounds, other than those accompanying a motion picture or other audiovisual work, are fixed by any method now known or later developed and from which the sounds can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.

Why do people in the music industry care so much about copyright?

provides structure that enables them to make money from their work enormous effect on all essential components of music business

How is musical work different from sound recording?

record company holds P copyright while publishing company holds C copyrihgt

bundle of rights

refers to the six exclusive rights mentioned in the copyright act

Copyright office fees

registration of claims, recordation of transfers

Fair use

the conditions under which you can use material that is copyrighted by someone else without paying royalties

transmit

to communicate a performance by an device/ process whereby images/ sounds are received beyond place from which they are sent

display

to show a copy of it