What are the two copyrights?
one for the song and one for the particular recorded performance of that song
Three C’s of Copyright
Creators, Commerce, Consumers
6 Exclusive rights of Copyright
1.To reproduce the copyrighted work in copies or phonorecords.
2. To prepare derivative works based upon the copyrighted work.
3. To distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending.
4. In the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly.
5. In the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly.
6. In the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.
What is the duration of copyright for works created on or after 1978?
The life of the author plus 50 years
What is the duration of copyright for works created before 1978?
The duration was 28 years and then for one additional “renewal” term of 28 years.
What is a Work made for hire?
In copyright law, a work made by an employee within the scope of employment, or a commissioned work of certain kinds if the parties agree in writing that the work is to be considered for hire. the employer or commissioning party owns the copyrights in works made for hire
What is the Duration of Copyrights for works for hire?
The duration for copyrights for works made for hire is stated as 95 years from the year of first publication, or 120 years from creation, whichever ends earlier
What was the impact of the Sonny Bono Copyright Term Extension Act?
It added an additional 20 years to the renewal term, making it total 67 years.
• What is a renewal term?
The second term of duration of copyright for works published prior to 1978. there was only one renewal term for pre-1978 copyrights.
• What is a Sound Recording?
A kind of copyrightable work in which sounds created by various sources are captured, or “fixed,” in some tangible medium such as tape or disc. These works are to be distinguished from the underlying works such as musical compositions or dramatic works which are recorded.8 divisions of the entertainment industry
• What is copyright notice for a song? For a recording?
For most works that notice for a song consists of (1) the symbol “c”with a circle around it, or the word “Copyright,” or the abbreviation “Copr.”; (2) the year of first publication; and (3) the name of the copyright owner. For sound recordings the notice requirement is (1) the symbol “p” with a circle around it (often referred to as the “circle P” notice); (2) the year of first publication of the sound recording (not the work recorded); and (3) the name of the sound recording copyright owner (usually a record label). The “circle P” notice is required by the Rome Convention for protection of sound recording copyrights on an international basis. One typically sees notices on albums, whatever their format, that have both the “c” and “P” notices because the labels are claiming copyright in both the recording and the supplemental artwork, liner notes, and so forth, that are part of the packaging of the recording. Notices for the songs are not usually included unless the lyrics are reproduced in a booklet or in some manner accompanying the recording.6 major motion picture studios
• What are the benefits of copyright registration?
If the work is registered within 5 years of first publication the registration is considered as prima facie evidence of the validity of the copyright and the information contained on the registration form. That means it is up to the other party to prove that the copyright was not valid or that the label, publisher, or author was not the owner of the work.
• What is Prima Facie evidence?
A legal term meaning evidence that is sufficient on its face to make a case or prove a point. A copyright registration is prima facie evidence of the validity of the copyright and other information on the registration form. It would then have to be up to the other party to prove otherwise.
• What is a collective work?
A work (in copyright) formed by the assembly of a number of separate independent works into a collective whole, such as an anthology, periodical issue, or (perhaps) a record album.
• Can you register a collective work? What’s the cost?
Yes. The single registration would protect all of the individual compositions or recordings in the collection. The typical unsigned band or songwriter could register ten songs for the price of two registrations instead of ten–$135 instead of $350
• What is a joint work?
In copyright law, a work created by two or more people with the intention that their contributions be merged into an integrated whole.
• How is ownership of a joint work divided?
One person could write the melody and another person writes the lyrics, so they each own half of the entire work instead of one owning the rights to the lyrics and the other owning rights to the melody.
• What is a commissioned work?
In copyright, a work that is created at the behest of some party other than the author, usually for pay and not as part of the author’s job.
• What are termination rights?
Statutory rights of authors (or certain of their heirs) under copyright law to end transfers of copyrights and non-exclusive licenses during a 5-year period beginning after 35 years from the date of transfer and running through the fortieth year.
• What is fair use?
A provision of the copyright law allowing some limited uses of works where the use is particularly beneficial to the public and does not do much harm to the copyright owner.
• What is common law copyright?
Originally, the right of authors to be the first to publish their works was protected by common law, and not the federal copyright statute. Since 1978, common law copyright would generally only apply to works not fixed in a tangible medium of expression
• When does copyright in a song begin?
Copyright begins from the moment the work is “fixed in a tangible medium of expression.” As soon as the song is written down, recorded, or otherwise put into some medium from which it can later be perceived or reproduced, the federal copyrights spring into existence. Only if the work is never “fixed” would it be protected under state law or common law.
• What is a mechanical right?
The “mechanical right” is the right to reproduce a musical composition “mechanically” using such things as recordings and piano rolls.
• What is a compulsory mechanical license?
A license that is granted by the copyright act to use a musical composition, sound recording, or other copyrighted work. It is “compulsory” because the copyright owner must permit the use if the user conforms to the requirements of the statute regarding payment of royalties, and so on.
• Mechanical license royalty rate – 9.1 cents or 1.75 cents per minute of playing time or fraction thereof, whichever is greater
• What is synchronization?
The right of the owner of a musical composition copyright to use the composition in time relation to visual images, such as in movies or television shows, or perhaps in multimedia.
• Identify and explain the exemptions to public performance.
Performances by instructors or pupils in the course of face-to-face teaching at non-profit educational institutions, or in distance learning courses (applies to all works)
• -Performances of non-dramatic literary or musical works in transmissions for educational broadcasting from government or non-profit educational institutions
• -Performances of non-dramatic literary or musical works in the course of religious services at a place of religious worship or assembly (also applies to dramatic musical works of religious nature)
• -Non-commercial performances other than in transmissions where there is no payment to musicians or promoters, and either no admission charge, or the proceeds are used for charitable, religious, or educational purposes
• -Public reception of transmissions on single sets of the kinds of receiving devices commonly found in the home if there is no admission charge and no further transmission
• -Performances in stores selling recordings and musical works where the purpose is to promote the sale of the recordings, or the hardware used to view or listen to the recordings, and there is no admission charge and no transmission.
• What is the Fairness in Music Licensing Act and how does it impact our treaty obligations?
The act expanded exemption for the public reception of a broadcast transmission to cover most eating and drinking establishments of fewer than 3,750 square feet and most other establishments of fewer than 2,000 square feet. It impacts our treaty obligations because the WTO said it exempted too many establishments.
• What must the plaintiff prove in an infringement action?
1. That they are the author or owner of the copyrights in the work that is claimed to be infringed. That is usually not too difficult since a copyright registration form is prima facie evidence (i.e. sufficient by itself with no other evidence being necessary) of the validity and ownership of the copyright.
2. That the other party copied their work. To show this the plaintiff must prove that the other party
(a) somehow had access to their work and
(b) that the two works are “substantially” similar. The access is fairly easy to prove if the original work enjoyed widespread public distribution or performance but can be quite difficult if the plaintiff’s work was unpublished. For writers who send out unsolicited demos, tis is often a problem because it is difficult to say that a demo actually got to the alleged infringer, or had a reasonable chance of doing so. That is one reason why artists, producers, and publishers do not like to get unsolicited demos. So, if the demo is not addressed in the right way to the right party, then it is probably going into the trash without further review.
• What is piracy?
Unauthorized duplications of sound recordings where the person or organization literally dubs a copy of the recording and sells a copy with identical sound on it. Piracy is usually distinguished from counterfeiting, although the latter is a form of piracy.
• What is the First Sale Doctrine?
The lawful owner of a copy of a work may dispose of possession of that copy in any way they wish. Copies may be re-sold, rented, leased, or given away. An exception allows the owners of copyrights in sound recordings and computer programs to prohibit rental of those works.
• What are the exclusive rights in sound recordings?
1. The right to reproduce a sound recording is limited to literally duplicating the recording in ways that actually recapture the actual sounds fixed in the original recording. Thus, one could make another recording that imitated or attempted to sound just like the original recording as long as the new one was made by hiring new musicians, singers, engineers, and so on, and making an entirely independent recording. Unless the makers of the “sound-alike” recordings failed to secure mechanical licenses to make recordings of the songs or marketed the recordings in some way that misled consumers to think that they were the original recordings by the original artists, in violation of unfair competition laws, the “sound-alike” would be perfectly legitimate.
• 2. The right to prepare a derivative work is rather limited too, to rearranging, remising, or otherwise altering the sequence or sounds of the original recording.
• 3. The right to distribute copies to the public is somewhat enhance for sound recordings, as will be discussed below under the Record Rental Amendment.
• 4. There is no right of public display for sound recordings. However, if one displayed the artwork for a recording, that would require a license. Look at the encoded side of a CD. It is not very exciting.
• 5. The right to public performance for a sound recording only covers performances by means of digital audio transmission, and there are some major exemptions to that, as will be discussed later.
• What is a sound-alike recording?
A recording made to sound as much like the one by the original artists as possible. It is a new recording, but the musicians and singers imitate the sound on the previous recording.
• What is the law of the AHRA?
• -1. Analog and digital home copying of music recordings for non-commercial purposes are exempt from liability for copyright infringement.
• 2. The manufacture and sale of analog and digital home recording devices are exempt from liability for infringement, but the manufacture and distribution of digital recording devices and blank digital recording media are subject to a compulsory license issued by the Copyright Office.
• 3. All home-type digital recorders must contain some sort of anti-copying system that prohibits the user from making more than single generation copies.
• 4. A compulsory license is used to generate royalties for the owners of the sound recording copyrights and the musical composition copyrights. The royalties are collected from the distributors or recorders and blank media, based wholesale prices and the number of units sold. For recorders the royalty is 2 percent of the wholesale price. For blank media it is 3 percent of the wholesale price. The royalties are collected by the Copyright Office quarterly and distributed according to a specific statutory scheme by the Librarian of Congress.
• 5. The “artists” share includes both featured artists and background musicians and vocalists.
• What are DART royalties?
• -Royalties due to copyright owners under the Audio Home Recording Act from the sale of stand-alone digital audio recorders such as mini-disc and the blank media used to make recordings such as “music” CD-Rs and mini-discs.
• What is the Digital Performance Right in Sound Recordings Act of 1995? What does this law apply to?
This law applies on to digital transmissions by subscription services, interactive services, and non-interactive series, including Internet simulcasts of regular broadcast transmissions.
• What is Sound Exchange?
An organization created by the RIAA to collect royalties and negotiate licenses.
• What does Pandora pay to Sound Exchange?
• -25 percent of revenues.
• Are beats copyrightable?
There has not been a case deciding whether beats are copyrightable compositions or not. Generally a rhythm would probably not be deemed copyrightable as a musical composition.
• What is sampling?
Sampling, sometimes called “digital sampling,” is the process whereby a recording artist or producer takes a small piece from a previous recording, digitizes it (the actual sampling process) so that it can be manipulated by computer sequencers and MIDI instruments, and puts it back into a new recording or song.
• What factors are used to determine the price of a sample license?
The significance of the sample taken and the extent to which it is used in the new recording. If the sample also takes any of the words or melody of the song a second sampling license must be obtained from the copyright owner (usually the music publisher) of the original song.
• Why can sampling be costly to an artist?
• -Because the artist’s label has to obtain a sampling license for every sample that an artist uses, so if the artist uses a lot of samples, they have to pay a lot of money which is usually deducted from the artist’s royalties.
• What is de minimus?
A sample so small as not to be protected by copyright.
• What is the manufacturing clause and how does it impact the industry?
A part of the copyright law that prohibits copies of recordings made outside of the US for sale outside of the US from being sold in the US unless the US copyright owner has given specific permission to import.
• What are gray market goods?
Those that have been legally manufactured outside of the US for distribution outside of the US.
• What are parallel imports?
Copies of works lawfully made outside of a country for distribution outside of that country but then imported back into the country of origin and sold along side of copies manufactured in the country of origin.
• What are the 2 tasks of publishing?
1. acquiring rights in songs
• 2. licensing the use of those rights to generate royalties for the publisher and songwriter
• Why are acquisitions prevalent in publishing? What is acquisition?
An acquisition is when a larger company takes over a smaller company. They are so prevalent in publishing because it makes it possible for smaller companies to exist and be profitable. The publisher also is no longer guessing what the artist or producer want so will not accept only “safe” songs.
• What is a safe song?
A “safe” song in the twenty-first century are songs that are written by songwriters who are also artists or producers who are already under contract or who have good possibilities of obtaining recording contracts
• Name the big 4 publishers. Who are they owned by?
The four big publishers are UMP, EMI Music Publishing, Warner/Chappell Music, and Sony/ATV Music Publishing.
• Name the 6 big players.
• Time warner, Disney, Vivendi universal, Viacom, Bertelsmann, news corps
• What is a catalog?
Generally refers to all of the songs (actually the copyrights in those songs) owned by a music publisher. May also refer to all of a label’s master recordings and to recordings that are not current hits, but which are still available from the distributor and “in print.”
• What is a cover?
Recordings or performances of a song by artists and performers other than the artists who originally recorded the song.
• What is an evergreen?
In music publishing, a song that is recorded by many artists and performed on a continuing basis for many years.
Song plugger
A person who works for a music publishing company whose job it is to get the song recorded, performed, and used in other ways.
Professional managers
the person at a music publishing company who is in charge of finding new songs and songwriters. They may also negotiate special uses of songs, such as commercials or motion pictures.
In a record company, the department in charge of finding new artists and songs to record. “A&R person” refers to persons who fulfill A&R functions by scouting new talent or listening to demos of artists and songs to decide who and what to record.
To promote a song to a music publisher or producer, or an artist to a label
An agency that issues mechanical licenses on behalf of its member publishing companies, collects licensing fees from the record companies and other users, and distributes those collections to the appropriate publishers. It was created and run by the National Music Publishers Association.
• Demo
A demonstration recording made to promote an artist, songwriter, or song to an agent, manager, music publisher, or record company.
• What are the 2 divisions of a publishing company?
Creative: in charge of signing songs and songwriters to contracts with the company, promoting the company’s catalog of songs to prospective users, and possibly developing potential songwriter/artists in a role not unlike that of A&R people at record labels.
• Administrative: It will usually include copyright administration, licensing, accounting, and perhaps business/legal affairs units.
• What tasks does the administration side perform?
It will usually include copyright administration, licensing, accounting, and perhaps business/legal affairs units.
• What is payola?
The practice of paying someone to perform a particular song or recording. Historically, music publishers paid performers to sing their songs. More recently it refers to attempts by labels to make undisclosed payments to radio stations or disc jockeys to play their recordings. The latter practice is illegal.
• What do artists give up in exchange for the benefit they receive from the publishing under the new model?
They pledge their output of songs for several years to the publisher.
• What is a development deal?
Usually a recording contract where a label gives an artists a small sum or perhaps annual amount to remain obligated to sign a full recording agreement with the label. Music publishers may also offer similar deals to songwriters.
• What is a single song contract?
• -The most basic agreement between a publisher and songwriter.
• What is the Grant of rights?
• -The songwriter assigns (transfers) all of the copyrights in the song to the publisher for the life of the copyrights, throughout the world. International rights are somewhat negotiable, especially if the publisher is not large enough to have the ability to market the song on a worldwide basis.
• Reversion? (distinguish from termination of transfers discussed in earlier chapters, reversion is contractual, termination is a right under the law)
A term usually seen in songwriter-publisher agreements referring to the writer’s right to recapture the copyrights in the songs. There is a statutory reversion right called the Termination Right in the Copyright Act. The reversion may also be strictly contractual.
• What is an exclusive songwriter?
• -A songwriter under agreement to writer song sonly for one publishing company.
• What is an advance? Advances are not debt, explain.
• -A pre-payment of royalties or other earnings. Advances are generally not returnable and not the same as a “debt” that must be repaid. It’s not because the publisher will hope to regain the money out of royalties later.
• 71. How are royalties paid for mechanicals? Performance? Print? Other?
• -Mechanicals: Usually divided 50/50 after any collection fee from the HFA or other mechanical collection organization is deducted.
• Performance: Usually split by the collecting performing rights organization and paid separately to the publisher and songwriter. Therefore, the songwriter does not usually get any percentage of what the publisher collects.
• Print: May simply be split 50/50 out of the publisher’s net receipts. More often, the publisher pays a percentage royalty based on the wholesale or retail price of the music being sold, or a “penny” rate (a flat rate of so many cents per copy sold). If a percentage of wholesale for folios (song books), 10 percent of the wholesale price for other print (not including sheet music). For sheet music (also known as piano-vocal editions) publishers often pay a penny rate of 7 to 10 cents per copy. This approach to sheet music does not come close to a 50/50 split since the publisher is paid a percentage of the retail price approximating 70 to 80 cents per copy. The per copy sheet music rate is not often negotiable. One songwriter refers to it as a “sacred cow.”
• Other: Usually split 50/50 of the publisher’s net receipts. However, there must be a clause in the contract to this effect. Otherwise the writer may not get any royalties from an unspecified use that later arises.
• What is cross-collateralization (now say it 3 times fast!)
• -The practice (common in the recording industry) of using income from one source to recover advances made for a different source between the same two parties. For example, if an artist records an album that does not sell well, the recording advances for that album may be recovered out of royalties earned by a later album that does sell well, or from earnings under other income streams if the artist and label have a “360 deal.”
• How many units must be sold for RIAA gold?
• -A recording or music video that has wholesale sales certified by the RIAA to be 500,000 units for an album or single or 50,000 for a music video.
• What does it mean to be unrecouped?
• -A term meaning that an artist, writer, or performer has not earned enough royalties to cover the amount of advance in which they have already received. The unrecouped portion of the advance is not a “debt.”
• What is catalog acquisition and how is price determined?
When one publisher buys all of the songs that another publisher owns. The amount paid for the catalog varies greatly and depends on the number and value of the songs included.
• What is co-publishing?
An arrangement where two or more music publishers own the copyrights in a given song. It is frequently seen where an artist’s publishing company shares the copyright with a “regular” music publisher, or where two or more writers on a song are affiliated with different publishing companies.
• What is copyright administration?
• -A music publishing function concerning the registration of songs for copyright, the recordation of other documents pertaining to those songs with the Copyright Office, and the licensing of those songs for various uses. A small publishing company owned by a writer, artists, or producer may outsource this function to another publisher in exchange for a percentage fee.
• Why would a writer want a co-pub deal?
• -Because his publishing company would have to split the remaining 50% with the other publisher so in the end the writer would end up with 75%.
What are small rights? Grand rights?
Small rights=non-dramatic performing rights. Grand rights=dramatic performance rights.
• What are/is:
nondramatic performance rights?
-Performance of a single song in such a way that it does not tell any particular story; usually any performance of a single song that is not part of an opera or musical is non-dramatic unless it tells a story accompanied by action or visuals.
Dramatic performance?
-A performance of a work that tells a story. Usually associated with musical heater or opera and multiple songs, but a single song may be a dramatic performance if accompanied by other actions or visuals.
Blanket License
-A term used mainly in performance rights licensing where a performing rights organization gives a licensee such as a radio station, nightclub, or web service the right to perform all of the songs or recordings in the PRO’s repertoire as many times as the licensee wants.
Per-program license?
• -Permission to use a single recording or song on a one-time basis, as compared to a blanket license.
Which PRO uses each of the following:
Mediaguide- ASCAP
Landmark Digital Services-BMI
• Which PROs are public companies? Private companies?
• -ASCAP and BMI are public companies. SESAC is a private company.
• What are the 2 basic functions of a label?
Acquire masters and market those masters.
• What are masters?
The recordings from which other recordings are later going to be made or duplicated. May refer to a multitrack master, a stereo master, or a duplicating master.
• What is an Oligopoly? Why is the record industry an “oligopoly”? What kind of oligopoly is it?
An Oligopoly is a market condition in which there are only a few firms competing in the market. A “few” is typically between 2 and 20. The recording industry is an oligopoly because there are a few major labels that control most of the industry. It is a “tight oligopoly.”
• What is Effective Competition?
A market condition in which it takes more than four firms to control 60 percent of the market.
• What are the big four and where are they headquartered? Note that the recording industry is international.
Universal Music Group- France; Sony Music Entertainment- Japan; Warner Music Group- United States; EMI Group- United Kingdom
• What is vertical integration?
A market condition in which a firm owns more than one portion of the total distribution chain from manufacturer to consumer. A record label that owns a pressing plant is an example of vertical integration, as is a distributor that owns record stores.
• What is vertical integration?
A market condition in which a firm owns more than one portion of the total distribution chain from manufacturer to consumer. A record label that owns a pressing plant is an example of vertical integration, as is a distributor that owns record stores.
• What is horizontal integration?
An economic term describing the actions of a firm to buy out competing companies at the same level, such as one record store chain acquiring another record store chain.
• What is outsourcing?
A situation where a business hires another firm to perform some function that had previously been performed “in house.”
• What is a rack jobber?
A distributor who buys records from branches or independent distributors and services the record departments in mass merchandiser stores or other non-record stores.
• What is a One-stop
A kind of distributor that sells all records from all labels to retailers.
• What is a Promotion Staff?
Term applied to record label persons or independent contractors whose job it is to get radio stations to play records released by the label.
• What is Co-op advertising?
Advertising money given to retailers or distributors by the labels to advertise the label’s records in local media. More often than not the “co-op” is not really split between the label and the retailer, but is entirely paid for by the label.
• What is a staff producer. Distinguish from an independent producer
Staff producers are producers who work on a salaried basis for the label (and probably a small royalty, too). Currently such persons are likely to be label executives who also happen to be producers.
• What is a Mastertone
A ring tone that is an edit of an actual original master recording of an artist and label. A “ring tune” is a recording of the song, but probably with synthesizers playing the parts.
• What is an upstream deal?
A deal where an artist signs with one of the “independent distribution” companies owned by one of the four majors and the major has the option to sign the artist to one of its wholly owned labels if it wishes to in the future, mainly if the artist becomes successful.
• Why is leisure important to the Recording Industry?
it’s a monetized function of leisure time
• What does it mean that the Entertainment Industry is the monetized function of leisure time?
all of the companies that are a part of the Entertainment Industry make money by selling leisure time to people through various mediums
• Why are nontraditional entertainment sectors important to the Recording Industry?
it’s a new source of revenue, through performances, recordings, or licenses, they help develop an artist’s brand (motion pictures and television promote a band via sound tracks, etc.)
• What are the 8 divisions of the Entertainment Industry?
motion picture industry, music industry, broadcasting, publishing, games, sports, exhibition entertainment, gambling
• True or False, the Entertainment companies spend more per product in advertising than other sectors of the economy.
• -True
What are the 5 revenue sources for distributors of motion pictures?
theatrical exhibition, home video, broadcasters, foreign markets, and nontheatrical venues.
• What are the 3 primary income streams?
• -the sale and use of songs (the music publishing industry), live entertainment, and the sale and use of recordings (the recording industry)
• What are the 4 components of the systems approach?
• -Inputs, such as songwriters, songs, musicians, engineers, producers, studios, plastic, paper, performances, and technology.
-Transformation which is the recording of masters, duplicating of the masters into physical copies and electronic copies, marketing, and performances. —Outputs, such as songs, CDs and other recorded configurations as products and as cultural artifacts, concerts and other performances, profits and losses for the owners and participants, and employee (including the artists and writers) satisfaction. —–Feedback, which is when consumers purchase recordings and live performances, and listen to or view the broadcast media or the Internet.
• Distinguish an open system from a closed system.
An open system is an organization that receives input from its external environment and interacts with that environment whereas a closed system is a business system that does not have to interact with its external environment.
• What is Entropy?
A state of business or physics in which there is total disorganization and chaos. It refers to the tendency of any organized system to eventually decay into disorganization. If a business does not receive new energy from its environment and inputs it will cease to exist.
• What are the big 4 labels and what is their market share?
Universal Music Group: ~24%; Sony/BMG: ~23%; EMI: 13%; Warner: 12%