Tag: Licensing

The Six Rights of Copyright – Part IV: The Right to Publicly Perform

Posted by Ari Good, JD LLM on

The Right to Publicly Perform is the fourth part in our series on what makes a Copyright.  The prior three rights reviewed are linked below for you to get up to speed.  To refresh, the six parts of copyright are:

  • The right to reproduce the copyrighted work
  • The right to prepare derivative works based upon the work
  • The right to distribute copies of the work to the public
  • The right to publicly perform the copyrighted work
  • The right to publicly display the copyrighted work
  • (sound recording only) The right to digitally transmit to publicly perform the copyrighted work

To try to get behind the curtain of copyright, we’re individually exploring each of these six rights.  An understanding of each and how they operate will allow you, the creator, to be in a better position to take advantage of your copyright.

There are a couple words of caution.  First, the practical effect of these exclusive rights will depend on the type of copyrighted work (literary works, musical works, motion pictures, sound recordings, etc.).  Second, these are exclusive rights.  The law allows only the copyright holder to exercise these rights.

IV.  The Right to Publicly Perform the Copyrighted Work

 

The right to publicly perform means only the copyright owners, or others they authorize, may perform their works publicly. 

 

This right prohibits would be thieves from performing a copyrighted work before the masses and profiting from that theft.  As an exclusive right, anyone wishing to perform a copyrighted work publicly must first obtain permission from the copyright owners.   Copyright owners, at least in the music industry, are often different from the people who created the work in the first place.  How far this right extends depends on answering two questions.

  1. What acts does a performance cover?
  2. When is that performance public?

The definition of performance under the Copyright Act goes beyond the usual examples of live works.  

 

Right to Publicly Perform
Live Public Performance

The term performance certainly covers situations when a person executes a copyrighted work live.  Examples of this include a band playing music in front of a crowd, a theater company performing a ballet before an audience, or people watching a film at the movie theater.  However, it also covers analog or digital transmission of performances by radio, television, and internet streaming.  Examples of transmitted performances include a song played on the radio, a recording of the ballet played on television, and a film screened for locals at a community park.  A performance occurs when the work is done live and when someone transmits a recording of the work.

The definition of public under the Copyright Act means any group beyond family and close friends.

 

A performance is public when the work is performed: (1) in a place open to the public, or (2) at a place where a substantial number of persons outside of a normal circle of a family and its social acquaintances are gathered.  In plain English, music you play for your family (3rd cousins need not apply) or close friends (not everyone on your Facebook friends list) will be a private performance.  Putting out flyers for your upcoming rendition of Britney Spears’ greatest hits, however, would be a public performance.  A performance is also public when you transmit the copyrighted work to a general audience.  This happens when a radio station plays a song, a television show includes that song during a dramatic break up scene, or you stream the song from your internet radio station.  Transmission of a performance will be public unless you restrict it to only your family or close friends.  As a general rule, live or recorded performances that can reach more than a few people will be public performances.

The traditional right to public performance applies to musical works, but not sound recordings.

 

Copyright owners of musical works (songwriters and music publishers) gain the traditional right to public performance.  Copyright owners of sound recordings (record labels), however, are left out in the cold.  A musical work is the composition, arrangement, lyrics, and other details that embody a song.  A sound recording is a specific performance of that musical work.  A musical work results when a band gets together to create an album.  A sound recording results when that same band goes into the studio to record the album.  The practical effect of this distinction is that analog radio stations must obtain a license only for musical works before playing songs on the air.  They don’t need permission from the owners of sound recordings that they actually broadcast.  This is true even though radio stations would have nothing to play without these sound recordings.

Three U.S. Performance Rights Organizations (PRO’s) (BMI, ASCAP, and SESAC) handle the vast majority of licensing and royalty issues for musical works.  There is a vast sea of musical works out there.  PRO’s strive to organize this complex network by licensing musical works on behalf of songwriters and bands.  The PRO’s then collect royalties for the licenses and send checks to the songwriters and bands.  The PRO’s are certainly not charitable entities, however, and take a cut of the royalties to cover the expenses in managing the system.  Some would say too big of a cut.

This oddity of the traditional public performance right has its roots in the history of Copyright.  Copyright protection existed long before people could record music and sheet music (an example of musical works) was the standard.  Copyright protection for musical works was necessary at that time, but obviously not so for non-existent sound recordings.  Copyright law failed to keep up with evolving technology, however, when sound recordings emerged to provide people with a different way to access music.

Congress tried to fix the problem by passing the Digital Performance in Sound Recordings Act (DPSRA).  This created the sixth right of Copyright: the right to perform publicly by digital transmission.  The DPSRA did provide relief for sound recording owners, but also created a volatile two-class system.  Internet radio stations like Pandora and Spotify now have to obtain licenses and pay royalties to copyright owners of musical and sound recordings.  Analog radio stations, on the other hand, continue to enjoy preferential treatment and only have to answer to copyright owners of musical works.  Analog radio stations have a huge financial advantage over internet radio stations as a result.

The right to public performance does have its limitations.

 

For every rule, there are exceptions.  The right to public performance is no different.  Charitable, non-profit, and educational groups may publicly perform copyrighted works without permission if it’s for a reason recognized by law.  Certain businesses may also play copyrighted music without permission for their customers if they play by the rules.

  • The business must receive the music from a licensed radio, cable, satellite, or television broadcast;
  • The business must be on the smaller side;
  • The business must play it only in their establishment;
  • The business cannot charge an admission fee.

A club that charges admission to listen to a recording of the latest, greatest pop album is not going to fall into this exception.  The ubiquitous Fair Use exception to copyright protection can come into play for the public performance right, too.

That’s a lot to go over!  Go ahead and ask questions if you have them, or leave a comment if have an interesting anecdote about the public performance right.

–          Ari Good, Esq.

Ari Good, JD LLM, a tax, aviation and entertainment lawyer, is the Shareholder of Good Attorneys At Law, P.A.  Ari Mr. Good received his BA, With Distinction, from the University of Michigan in 1993.  He graduated from the DePaul University College of Law in 1997 and received his LL.M. in Taxation from the University of Florida.  Ari represents DJs, live musicians, fashion models and other entertainers in copyright, licensing and contract matters.

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Royalty Free Samples: A Peculiar Problem of Producing Music

Posted by Ari Good, JD LLM on with 1 Comment

A common question from DJs and music producers is: “what right do I have to create and protect my own music using ‘royalty free’ samples, beats, and loops?”  Can you copyright work that you derive from these sources?  The simple answer is yes, if certain requirements are met.  This situation is a textbook example of derivative works and rights (one of the six exclusive rights of copyright).  Artists can copyright derivative musical works as long as they had the necessary permission to use the original source material.  Let’s break down the issue in detail:

Royalty Free
DJ Equipment

1.      The source material must be “royalty free”, or really, “royalties paid”, for you to use them in your own music.

 

As a refresher, there are typically two parties in music business who own the bundle of rights we call “copyright” and would want a royalty if their music is used.  The first are the owners of the musical compositions themselves (the arrangement, lyrics, etc.), typically music publishing companies, who have purchased these rights from the original musicians.  The second are the owners of the master recordings, typically the record labels.

Say, for example, you wanted to use a sample from the Rolling Stones song Shattered from their studio album, Some Girls (and who wouldn’t?).  You would need to obtain permission from (and pay royalties to): (1) the Rolling Stones’ music publisher, for the music composition, and (2) the Rolling Stones’ record label, for the master rights to the recording.  (Quiz: if you recorded your own version of Shattered, you would only need to obtain permission from the Rolling Stones’ music publisher, since the master recording is no longer involved).

Now, in the case of commercially available loops and samples, it’s usually a bit of a misnomer that samples you purchase are royalty free.  Rather, the company offering the loops has paid the necessary royalty or royalties that allows them to copy and resell the loops to you.  You, as the loop buyer, may then use the loops to create derivative works.  Getting beyond use, however, requires some additional steps.

2.      In order to protect your new creation, the loop seller’s terms and conditions must grant you the right not only to use and make derivative works, but also to copy the royalty free source material.

 

You must have permission to copy and prepare derivative works from royalty free source material before you can copyright your new creation. The following is an example of terms and conditions that give you the right to use your loops to create derivative works and copy the material into your own, protectable creation:

The Sounds remain the property of its manufacturer and/or Loopmasters Limited. (Collectively, “Licensor”) and are licensed to you as the original end-user (“Licensee”), for use subject to the provisions below. All rights not expressly granted herein are reserved exclusively by Licensor.

The Sounds in a category of ‘Sample Pack’:

1.  The Licensee may use the Sounds in combination with other sounds in music productions (which include soundtracks of such as films, video productions, radio/TV programs or commercials, computer games and multimedia presentations, library music), public performances, and other reasonable musical purposes within musical compositions.

English:  You can use the loops in multiple ways, when combined with other music.

2.  The Licensee may modify the Sounds and may use the Sounds for commercial purposes as part of a musical composition with other sounds.

English:  You can alter the loops and use them in your own musical creations.

3.  The Licensee MAY NOT use the Sounds in isolation as sound effects (i.e. a sequence of musical events) or within any competitive products that are sold or relicensed to multiple third parties.  In these scenarios, the Licensee must arrange an extension with Loopmasters Limited.

English: You can’t just take our loops, then turn around and use them other than as something of your own.  Also, you can’t just turn around and resell our loops again without talking to us first.

4.  A right to use the sounds is granted only to the Licensee and is NOT transferable. This license expressly forbids resale, re-licensing or other distribution of the Sounds, either as they exist or any modification thereof. You cannot sell, loan, rent, lease, assign, upload to or download from any server, or transfer all or any of the enclosed sounds to another user, or for use in any competitive product.

English: Only you, not others, can use the loops.

5.  Licensor will not be responsible if the sounds does not fit the particular purpose of the Licensee.

English: If you’re not happy with the loops, tough luck.

PLEASE NOTE:

This is a general licence which covers all Loopmasters products, it may not apply to products from other labels that we represent at Loopmasters.com – if in doubt please email us or contact the label directly.

English: If you’re unsure that you’re using the loops properly, ask before that use.

You can only copyright musical derivative works if you have the necessary license for the royalty free source material.

3.      The musical derivative work must be substantially different from the royalty free source material.

 

Although it’s common sense, a work must be noticeably different from the royalty free source material to be derivative.  A purchased music sample is not a derivative work unless you somehow alter, transform, or adapt it.  This is usually not a problem for DJs, who may merge multiple samples or layer their own musical ideas over the sample.  Even the act of arranging different samples in a unique way is enough.  Your editorial idea for the arrangement is the added element making it a new, derivative work.

You can only copyright derivative works if they are substantially different from the royalty free source material.

4.      Derivative works do not have copyright over the royalty free source material.

 

It’s worth noting that creating a derivative work from royalty free samples, drum beats, or loops doesn’t give you copyright to the source material.  You don’t become free to do whatever you want with the source material once you create a derivative work.  This means that you can’t sell, give away, or publicly play the source material as a stand alone.  Your rights to the source material only cover its use in your new creation.

If you have any questions about royalty free music that were not discussed, leave a comment and I’ll respond.

 

–          Ari Good, Esq.

Ari Good, JD LLM, a tax, aviation and entertainment lawyer, is the Shareholder of Good Attorneys At Law, P.A.  Ari Mr. Good received his BA, With Distinction, from the University of Michigan in 1993.  He graduated from the DePaul University College of Law in 1997 and received his LL.M. in Taxation from the University of Florida.  Ari represents DJs, live musicians, fashion models and other entertainers in copyright, licensing and contract matters.

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The Six Rights of Copyright – Part I: The Right to Reproduce

Posted by Ari Good, JD LLM on

Figuring out what copyright actually protects is truly a dizzying concept.  The fact that copyright actually has traditionally covered a bundle of five exclusive rights makes matters more complicated.  Things became even more confusing when Congress added a pseudo sixth exclusive right in 1995.  These six rights are:

  • The right to reproduce the copyrighted work
  • The right to prepare derivative works based upon the work
  • The right to distribute copies of the work to the public
  • The right to publicly perform the copyrighted work
  • The right to publicly display the copyrighted work
  • (sound recording only) The right to digitally transmit to publicly perform the copyrighted work

To try to get behind the curtain of copyright, we’re going to individually explore each of these six rights.  An understanding of each of these rights and how they operate will allow you, the creator, to be in a better position to take advantage of your copyright.

There are a couple words of caution.  First, the practical effect of these exclusive rights will depend on the type of copyrighted work (literary works, musical works, motion pictures, sound recordings, etc.).  Second, these are exclusive rights.  The law allows only the copyright holder to exercise these rights.

I.  The Right to Reproduce

Right to Reproduce
Pressing of Record

The exclusive right to reproduce your work is the core function of copyright and gives it its name.  Reproduction is the act of producing physical objects that contain or embody the copyrighted work.  Only the copyright owner can make or control reproduction of their work.  Reproduction commonly occurs in the form of publishing books from a manuscript, pressing records from a musical work, and manufacturing DVD’s from a motion picture.  Unauthorized reproduction occurs when someone photocopies that book, samples that music without permission, or pirates a copy of that film off the internet.

The general rule, as stated above, is only the copyright owner can control the reproduction of the work.  There are, however, a couple important exceptions to this rule (aren’t there always exceptions to the rule?):

  • “Fair Use” reproduction: This allows someone to make an authorized copy of the work if it’s for the purpose of education, commentary, criticism, parody of other similar reason.  Keep in mind, though, that the copy is limited to only what is necessary for the goal of fair use.  This means a critique of a music album can only fairly use samples of the music, not make an entire copy of the album.
  • Libraries and educational institutions can make a limited number of copies as provided by law.

An issue of Fair Use is the most common exception that people cite to when making unauthorized copies.  Many defendants claim Fair Use when copyright owners sue them for copyright infringement.

Reproduction of musical works also has its own separate, unique rule from other types of copyrighted work.  Anyone can make their own copies without permission and distribute them once a copyright owner records and makes first distribution of their audio only works (think CDs, not music added to film or TV).  This is a compulsory license.  The copies are legal, even though they are made without permission, but a royalty (9.1 cents per song or 1.75 cents per minute) must be paid to the copyright owner for each copy distributed.  This system is not very practical, however, so different agreements are commonly made.  The Harry Fox Agency is well known for arranging deals between copyright owners and third party distributors.

As a final note, copyright infringement can occur even when someone doesn’t make a complete copy of the work.  The copy need only be substantial and material.  Chopping off parts of a song or omitting a few tracks from an album can still be a violation of the law.

The right to reproduce, of course, would be of little economic value if not paired with the exclusive right to distribute.  Follow along as we next explore that particular right.

Chime in with any questions or comments that you may have about the right to reproduce.

–          Ari Good, Esq.

Ari Good, JD LLM, a tax, aviation and entertainment lawyer, is the Shareholder of Good Attorneys At Law, P.A.  Ari Mr. Good received his BA, With Distinction, from the University of Michigan in 1993.  He graduated from the DePaul University College of Law in 1997 and received his LL.M. in Taxation from the University of Florida.  Ari represents DJs, live musicians, fashion models and other entertainers in copyright, licensing and contract matters.

Top 10 Reasons To Register Your Copyright

Posted by Ari Good, JD LLM on

The sheer act of creating an original piece of art makes it yours and yours alone.  That unique beat, the words to a song, steps to a dance, or outline to a TV pilot: It’s your intellectual property.  This property, like real estate or a bank account, holds value and you should protect it.  Certainly, if someone is to become famous from your musical ideas or reap vast profits from their sale, it should be you and not the person who ripped your ideas off.

Copyright symbol
Copyright

In an ideal world, no one would steal intellectual property and claim it as theirs. Even in a perfect world people can still innocently and independently create works of art that are functionally identical.  Proving that you created the work of art first would be a difficult task at best.  Nevertheless, just like there are vaults to protect your money and deeds to prove you own land, the law provides a simple way to protect your intellectual property: registering a copyright.  With due apologies to David Letterman, and in no specific order, here are the 10 Ten Reasons to Register a Copyright:

  1. A registered copyright puts the rest of the world on notice.  It’s your legal proclamation to the world that you own certain intellectual property and unauthorized copies are illegal.  Registration warns would be thieves that any larceny of your ideas is at their own risk.
  2. A registered copyright protects your intellectual property from innocent, but unauthorized, reproduction.  A famous example of this occurred when David Bowie sued Vanilla Ice for copyright violation over the hook to “Ice, Ice Baby.”  Even though Vanilla Ice claimed he innocently copied the beat (later retracted), he still owed David Bowie compensation for its use without permission.
  3. A registered copyright gives credit where credit is due.  This is a legal, public record that you are the author of a work of art, not someone else.  Registration vindicates a very important principle beyond issues of money.
  4. A registered copyright let’s you sue for ‘statutory damages’ and attorney fees.  In simple terms, suing for statutory damages means you don’t have to prove that you actually suffered harm from a copyright violation.  A typical lawsuit requires proving harm.  You can sue for up to $150,000 for an intentional violation and up to $30,000 for an unintentional violation.  CAUTION: you must register your copyright within 3 months of making it public to be able to sue for statutory damages.
  5. A registered copyright, in a copyright infringement lawsuit, provides clear evidence that you own certain intellectual property.  This means that the defendant in the lawsuit has the burden of proving that no violation occurred or they lose.
  6. A registered copyright allows you to record the copyright with U.S. Customs.  U.S. Customs in turn will protect you against the importation of illegal copies from other countries.
  7. A registered copyright let’s you stop someone from making illegal copies.  You can obtain a court order that forces an infringing party to cease and desist from their infringement.  This is what occurred when record labels sued Napster.
  8. A registered copyright is necessary to sue for copyright infringement.  In order to take advantage of the system, you need to be a player.  You gain significant legal protection by registering your copyright under the laws of copyright.
  9. A registered copyright provides legal protection beyond death.  U.S. Copyright laws often create a situation where your copyright can still be enforced after you’re long gone.  Although you can’t take riches to heaven, this would be important for someone who wants to provide for loved ones after they’re gone.
  10. A registered copyright saves time and money.  It’s certainly possibly to sue someone for stealing your intellectual property even without a registered copyright, it’s just not a good idea.  For some reason, waving a certificate of copyright, rather than lyrics scribbled on a napkin, just seems to go over better in court.  Registering a copyright makes this legal process much more simple and cost effective when an attorney is necessary.

This is my list of the top 10 reasons to register a copyright.  It doesn’t mean that there are only 10 reasons, though, or that we can agree these are the 10 most important reasons.  What other reasons are there to register a copyright or why do you think one reason is more important than another?

–          Ari Good, Esq.

Ari Good, JD LLM, a tax, aviation and entertainment lawyer, is the Shareholder of Good Attorneys At Law, P.A.  Ari Mr. Good received his BA, With Distinction, from the University of Michigan in 1993.  He graduated from the DePaul University College of Law in 1997 and received his LL.M. in Taxation from the University of Florida.  Ari represents DJs, live musicians, fashion models and other entertainers in copyright, licensing and contract matters.