From: daver@felix.UUCP (Dave Richards) Subject: US Copyright (was Re: Dealing with ASCAP Date: 23 Apr 91 00:39:33 GMT
THE COPYRIGHT LAW AND THE MUSICIAN David Richards A Guide to the 1976 Copyright Law, Revised 6/90 updated to include the 1988 "Berne Act" 4/22/91 posting
INTRODUCTION
This article describes the United States Copyright Law insofar as it relates to musicians (including singers) and members of organizations which utilize music, such as schools, churches, amateur and professional musical groups or clubs, etc. Information on the various licenses required to perform or record musical works is included, however this is not a step-by-step guide. More complete information is available from the sources listed at the end of the article. For legal advice consult a copyright attorney.
From time to time a case will come before the Court which will result in a ruling on "fair use", which means a use of copyrighted material for which per- mission is not required. One example of this is the decision allowing the tap- ing of radio and television broadcasts in the home. These decisions are not incorporated into the law, but must be considered along with it. Some of these rulings are included below, where appropriate.
SECTION I: What is Protected by Copyright
The idea behind the law is that the product of a person's mind (in this case a musical composition) is just as much his or her property as the product of a person's hands. Nobody works for nothing, and authors and composers have to pay for rent and food just like everyone else. If they could not earn en- ough from creative work such as writing songs which the public likes, they would be forced to work at something else. The result would be much less mu- sic for everyone to enjoy. The copyright law exists to ensure that songwriters (and other writers) can make a living at it, and to protect their creations from misuse.
The first U.S. copyright law was enacted in 1909, and took effect in 1910. Any musical work published prior to 1910 is in the public domain (it has no copyright protection). A work published between 1910 and Dec 31, 1977 may be protected under the 1909 law, but there are several ways that protection could have been lost. The protection for a work published under the 1909 law lasted for 28 years at which time it could be renewed for another 47 years. To retain copyright protection, the copyright holder MUST actively prosecute all known infringers. If infringement is allowed or ignored by the copyright holder, the work will be considered to be in the public domain. As a result, many infringements are prosecuted that woule otherwise be considered minor, and not worthy of the effort.
Also, under the 1909 law a copyright notice must appear on all printed copies of the work. If that wasn't done, or if the copyright hasn't been renewed, or actively exercised by the owner, or if the total 75-year period has expired, the work is in the public domain. However, a new arrangement of a public do- main piece would be subject to copyright protection.
The copyright law was essentially rewritten in 1976, and the new law took ef- fect January 1, 1978. The 1976 law was not retroactive, in other words it did not restore copyright protection to any work that had fallen into the public domain. Once copyright protection is lost, it can never be regained. For com- positions (or arrangements) published after January 1, 1978, the copyright is effective until 50 years after the death of the author(s). If the author re- mains anonymous or the work was created for hire, the copyright is effective for 75 years from the date of first publication.
As if those weren't enough laws to keep track of, the United States has recent- ly entered into an international treaty, the Berne Convention for the Protec- tion of Literary and Artistic Works. This caused some changes to the existing law and took effect on March 1, 1989. One of the revisions to the law made as a result of the Berne Act was the elimination of the requirement to put a copy- right notice on all copies of a published work. For works published for the first time after March 1, 1989 the inclusion of the C inside a circle (or P inside a circle for a recording label) is purely voluntary. Its omission won't cause a loss of copyright protection. However, publishers are encouraged to continue including it. One reason is to make it easier to prove "wilfull infringement" in a suit for damages, resulting in a higher award amount by the court. For works first published prior to March 1, 1989 the notice must still be included in order to preserve protection, even in future printings.
At present, a copyright exists from the moment the work is first written down, whether a copyright notice is included or not. However, the work must be reg- istered with the U.S. Copyright office before an infringement case can be init- iated.
The copyright holder might be the original writer of a piece, or someone who has been assigned ownership through contractural agreements (such as a publish- er). The copyright holder has the following EXCLUSIVE rights as defined in Section 106 of the 1976 law:
1. To reproduce the copyrighted work in copies or recordings.
2. To prepare derivative works based upon the copyrighted work.
(A musical arrangement is a derivative work.)
3. To distribute copies.
4. To perform the work publicly.
5. To display the work publicly.
An infringement occurs when someone other than the copyright holder assumes one of these rights without permission. As musicians we are mainly concerned with items 1 through 4. These items are addressed in more detail below. They are divided into sections on copying, arranging, recording, and performing.
It is often asked how much a person may use of a copyrighted work without it being considered an infringement. Everyone seems to have their own rule, but this is not called out in the law. It is open to the interpretation of the court. So ANY recognizable passage is risky (samplers take note). The single exception is for a teaching situation as described below.
SECTION II: ON PAPER – Copies and Arranging
A. Copies
For the purposes of this section, "copying" could mean photocopying, photo- graphing, writing music out by hand, or any method of duplication that results in a visually-perceptible copy. It is considered visually-perceptible even if a machine is required to read it, such as a computer or microfilm reader.
The law not only prohibits anyone other than the copyright holder from making copies (#1 above), but also prohibits distribution of copies (#3). In other words, one could be prosecuted for both as separate offenses. Or, if illegal distribution was taking place on a large scale, the printer could be prosecuted under section 106(1), and the distributor under section 106(3).
B. Arranging
You may not create an arrangement of a copyrighted work without written per- mission from the copyright holder (usually the music publisher in this case). This permission must be obtained before starting work. If permission is granted to do an arrangement, it will allow the arrangement and a limited number of copies to be made in exchange for a fee. It is important to remember that even if permission is granted, YOU DO NOT OWN YOUR ARRANGEMENT. It re- mains the property of the copyright holder. If a greater number of copies were made of the arrangement than permission was given for, they would be regarded the same as any other illegal copies.
You may secure permission to do an arrangement from the copyright holder dir- ectly, but you may find it easier to do this through a representative. The National Music Publishers Association created the Harry Fox Agency specifically to act as an intermediary between publishers and the music user. (see the ap- pendix for address.)
Summary of things you may not do with copyrighted material on paper:
You may not copy printed music that you have purchased, except as
noted below under "Fair Uses".
You may not copy someone else's illegal copy.
You may not write down the words or music from a recording.
(transcribing)
Fair uses, or things you may do with a copyrighted work on paper without permission:
For educational purposes, the instructor may make one copy per student of up to 10% of a composition for class study, as long as that 10% does not constitute a performable unit.
You may edit or simplify a piece of printed music that you have pur- chased, provided that you do not alter or distort the fundamental character of the work, and your changes are marked directly on the original.
You may write parody lyrics to a song, as long as you use very little or none of the original author's lyrics and you do not write down the music with your lyrics.
SECTION III: Recording
Note: Throughout the following section the term "recording" or "record" means any type of recording medium such as phonograph records, audio and video tapes, etc.
You may not duplicate a recording of a copyrighted work.
You must have permission to record a performance of any copyrighted piece of music. However, you may make one and ONLY one recording of a performance for study, critique, or archival, etc. (Section 107)
Producing an album for sale:
You must have permission to produce a record of a copyrighted work. The copy- right holder may refuse to allow a work to be recorded, however once permission has been granted to someone, it cannot be withheld from anyone else. So if the arrangements you wish to record have ever been recorded before (in any style), you will automatically get permission. Permission is given in the form of a "mechanical license". This license is obtained by paying a fee to the copy- right holder. Once again you can avoid having to deal with each artist or music publisher individually by using the Harry Fox Agency.
The information required for the issuance of a mechanical license is:
1. The name of the person to whom the license is to be issued. 2. The title and writers of the composition (and publishers if known). 3. The performing artist(s). 4. The playing time of the composition(s) in minutes and seconds. 5. The release date of the recording. 6. The number of copies you plan to make.
You will get a response from the agency in the form of a contract granting you the license to record at the going rate, which is currently $.057 per compo- sition or $.011 per minute of playing time, whichever is greater, per record, tape, or CD made (as of November 1, 1989).
The Harry Fox Agency does not represent every publisher, and they cannot grant a license for publishers that they do not represent. So the contract they send you may not include all your selections. For any material that doesn't appear on your contract you must negotiate with the copyright holder directly. Every item on your recording MUST be licensed to avoid serious legal trouble.
Rearranging a piece for a recording:
Section 115(a)(2) of the law says: "A mechanical license includes the privilege of making a musical arrangement of a work to the extent necessary to conform it to the style or manner of interpretation of the performance involved … but the arrangement shall not be subject to protection as a derivative work except with the express consent of the copyright owner."
That sentence is open to interpretation, but seems to say that if you have per- mission for a recording via a mechanical license, you may create an arrangement of the work for that recording. But you may not perform that arrangement any other time or place, or claim copyright protection for it unless you have ex- plicitly been granted ownership of it by the copyright holder.
Summary of things you may not do with recordings without permission:
Duplicate them.
Transcribe from them (write down the music or lyrics, see above).
Play them over a PA system to a large group of people (see performing).
Make a recording of a performance for sale.
Things you may do with recordings of copyrighted works:
You may make one recording of your performance for review or archival.
You may purchase a recording and play it for your own entertainment.
You may loan, give or sell a legal recording to someone else, just like any other property. (you own the physical recording, but not the sounds that it contains.)
SECTION IV: Performing
This section is included for the benefit of individuals or groups that put on public concerts or shows.
According to the law almost every public performance of a copyrighted work re- quires a license for that purpose. The exceptions are clear:
1. Performances in the course of religious services at a place of worship.
2. Face-to-face teaching activities at a non-profit educational institution.
The law defines a "public" performance as one "at a place open to the public or at any place where a substantial number of persons outside the normal circle of a family and its social acquaintances is gathered." The court has found that even a performance at a private club is a "public" performance. The law requires a license not only for a performance by live musicians, but also for performances by means of a record or tape player, or radio-over-loud- speaker system.
If a performance takes place without a license, it is the owner of the estab- lishment that is liable for copyright infringement, not the musician. However, if an organization has rented a hall or auditorium for a performance by paying a fixed price, the court has found that the renting person(s) is liable for the infringement, since the establishment owner had no share of the profits (and presumably no control over what material was performed).
Organizations exist for the purpose of issuing licenses to perform. The main ones are ASCAP and BMI. They take care of distributing the show royalties to their publisher members, which immensely simplifies the work of the person organizing the performance.
Some music publishers are represented by ASCAP, some are represented by BMI, and some are represented by both. ASCAP is the older organization, and rep- resents some 40,000 authors, composers and publishers. BMI is newer, but larger, having over 80,000 members. To determine if your material is ASCAP or BMI, you may contact the indexing department of the ASCAP and BMI offices closest to you. There are offices for both organizations located around the country. To find them, contact the head office listed below, or consult the telephone directory if you live near a major city.
ASCAP and BMI do not issue licenses for dramatic musical purposes, such as opera, ballet, musicals, or any performance that includes a story or plot, dialog, dance, pantomime, etc. Permission for these types of performances is still required, but must be obtained from the copyright holder directly. However, a concert including excerpted musical works from a dramatic show (or shows) would be covered by an ASCAP or BMI license.
Most auditoriums, clubs, lounges, etc, already have blanket licenses from both ASCAP and BMI. As a musician, the only time you should be concerned about this is if you rent a hall or auditorium for a public performance, or if you give a public performance on your own property.
C. Music in Motion Pictures and Television
Although this probably applies to very few people reading this, it is included for completeness. The recorded use of music in combination with visual images ("synchronization") doesn't fall within the scope of the compulsory license provisions of the Copyright act. This means that each of these uses must be negotiated individually with the copyright holder. This may also be done using the Harry Fox Agency synchronization department as an intermediary.
Summary on performing:
You may not perform any copyrighted work in public without permission, given in the form of a license.
Performing you may do without a license:
You may perform for family or friends a legal arrangement that you have purchased, or one that you learn by listening to a performance or a recording (but remember not to write down the music or lyrics).
SECTION V: Penalties for Infringement
The minimum fine for "innocent" infringement is $200 per infringement. With the passage of the Berne act, the maximum fine has been raised to $20,000. For "wilfull" infringement the maximum fine is now $100,000. Each unauthorized performance, recording, or paper copy of a work is a separate offense. For example, if you made ten copies of something, or performed it ten times, you could face a fine of one million dollars. This is the statutory rate. It is the choice of the copyright holder whether to accept the statutory amount or to request the actual damages including court costs and attorney's fees.
If it is a corporation that infringes, not only is the corporation liable, but the officer of the corporation that is responsible for the infringment is also PERSONALLY liable. He/she cannot hide behind the corporate status. You should also be aware that according to federal law a fine for "wilfull injury" cannot be discharged by bankruptcy. So there is no escaping a fine of this type.
APPENDIX: CONTACTS
For a license for musical concerts and other non-dramatic performances contact:
American Society of Composers, Authors and Publishers:
ASCAP (212) 595-3050 One Lincoln Plaza New York, NY 10023
- and/or -
Broadcast Music, Inc.:
BMI (212) 586-2000 320 W. 57th Street (800) USA-BMI1 New York, NY 10019
For permission to do an arrangement, a license to record, or a license to produce a dramatic show incorporating music, contact the particular music publisher(s), or:
The Harry Fox Agency, Inc. (212) 370-5330 205 East 42nd Street New York, NY 10017
If you would like your own copy of the copyright law, or for information about the copyright status of a particular work, or if you would like an application form to register your own composition, recording, or your arrangement of a public domain work:
The Copyright Office (202) 479-0700 public information Library of Congress (202) 707-9100 forms ordering (leave msg.) Washington, DC 20559.
The complete text of the law is included in circular #92, but there are other circulars and information packets available containing excerpts of the law that pertain to a particular activity. So be specific when you inquire.