Professor Calle

MUM 2700 – Music Business 1

www.drcalle.com

ecalle@mdc.edu

https://mycourses.mdc.edu (Angel)

 

Copyright Notes

A copyright can be succinctly described as “a limited duration monopoly” (Passman, 2003, p. 193). Moser (2006) teaches that copyright law offers owners and creators of intellectual property “the right to control and profit from the use of their creations” (p. 1). For a detailed discussion regarding the basic aspects of a copyright, please visit the U.S. Copyright Office circular entitled Copyright Basics.

 

If the work is original, the creator owns a copyright as soon as they have produced a tangible version of the work. In other words, one does not have to file the work with the copyright office in order to own a copyright. 

 

If one cannot afford or does not want to file a copyright, it is strongly suggested that those individuals or groups have a notary public stamp the work with an official seal. This may hold up in court as long as the claimants can produce the paperwork.

 

The “poor man’s copyright”, typically sending yourself a certified correspondence containing a copy of the work, is sometimes used by copyright claimants. There are many problems with this type of copyright. One could loose the materials, the correspondence could be defaced or destroyed due to an act of God or a hungry dog, and/or the envelope could come open after many years. In any of these cases, it would be much more difficult to prove ownership in a court of law. Intellectual property can sometimes be very valuable. Thus, it is best to protect it by registering a copyright with the U.S. Copyright Office.

A copyright owner owns a copyright for life plus 70 years. (This is the Sony Bono Copyright Extension Act of 1998.)

If you want to have indisputable proof of copyright, it is probably most prudent to file a copyright form (CO) with the Copyright Office. This grants claimants more protection than a self-addressed stamped envelope or a piece of sheet music in a drawer.

            The copyright office has currently updated the way we file copyright forms. For detailed instructions, please visit the U.S. Electronic Copyright Office web portal. For a detailed listing of current fees, please visit: http://www.copyright.gov/docs/fees.html

 

As detailed in the U.S Copyright Office circular entitled Copyright Basics (2008), a copyright grants you the exclusive right to:

  1. Reproduce the work in phonograph recordings.
  2. Distribute copies of the work by sale, lending, lease, or rental.
  3. Perform the work publicly.
  4. Make derivative works based on the original work.
  5. Display the work publicly.
  6. To perform a recorded musical work via digital audio broadcasts.

There are six major exceptions to the copyright rule. These are called compulsory licenses. Compulsory means you must issue these licenses to someone who wants to use your work whether you like it or not.

  1. Cable television rebroadcasts.
  2. PBS
  3. Jukeboxes
  4. Digital performance records – digital radio and webcasts.
  5. Digital distribution of records – Internet, phone and satellite downloads.
  6. Phonorecords of non-dramatic musical compositions.

Compulsory mechanical licenses -

Section 115 of the Copyright Act provides that you must issue a compulsory license to

Anyone else who wants to record it on a phonograph record if it has already been recorded and:

  1. The song is a non-dramatic work
  2. The recording has been distributed publicly in phonorecords
  3. The new recording will be in phonorecords only.

 

The current standard mechanical royalty rate for the use of a song on a phonograph recording is 9.1 cents for five minutes or less and 1.75 cents for every additional minute or fraction of minute. Any song exceeding the five-minute threshold is rounded up to the next minute. For example, a song of length 5:01 is treated as a six-minute song, songs of length 6:01 are treated as seven-minute songs, and so forth. An excellent mechanical royalty calculator is available at the Harry Fox Agency website.

Example: a song lasting 7:02 will receive:

.0175 * 8 = $ 0.14 = 14 cents

 

Length of song

Roundoff

Computation

Total

5:01 – 6:00

6

6 * .0175

$0.105 = 10.5 cents

6:01 – 7:00

7

7 * .0175

$0.1225 = 12.25 cents

7:01 – 8:00

8

8 * .0175

$0.14 = 14 cents

8:01 – 9:00

9

9 * .0175

$0.1575 = 15.75 cents

9:01 – 10:00

10

10 * .0175

$0.175 = 17.5 cents

10:01 – 11:00

11

11 * .0175

$0.1925 = 19.25 cents

11:01 – 12:00

12

12 * .0175

$0.21 = 21.0 cents

12:01 – 13:00

13

13 * .0175

$0.2275 = 22.75 cents

13:01 – 14:00

14

14 * .0175

$0.245 = 24.5 cents

 

 

 

 

 

 

 

 

Controlled Composition Rates for 2004-2006

Length

Statutory

Controlled %

Controlled Composition Rate

 

 

5

$0.0850

0.75

$0.0638

 

 

6

$0.09900

0.75

$0.0743

 

 

7

$0.11550

0.75

$0.0866

 

 

8

$0.13200

0.75

$0.0990

 

 

9

$0.14850

0.75

$0.1114

 

 

10

$0.16500

0.75

$0.1238

 

 

11

$0.18150

0.75

$0.1361

 

 

12

$0.19800

0.75

$0.1485

 

 

13

$0.21450

0.75

$0.1609

 

 

14

$0.23100

0.75

$0.1733

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Statutory Mechanical Rates 2006

Artist

Title

Length

Roundoff

Rate

Total

MSQ

Thank You

5:01 - 6:00

6

0.01750

$0.10500

MSQ

Rice & Beans

6:01 – 7:00

7

0.01750

$0.12250

MSQ

Carisi Quartet #1

7:01 – 8:00

8

0.01750

$0.14000

MSQ

Mambo Influenciado

8:01 – 9:00

9

0.01750

$0.15750

Coltrane

Once In A While

9:01 – 10:00

10

0.01750

$0.17500

Coltrane

Afro Blue

10:01 – 11:00

11

0.01750

$0.19250

Miles Davis

Joshua

11:01 – 12:00

12

0.01750

$0.21000

Coltrane

Traneing In

12:01 – 13:00

13

0.01750

$0.22750

MSQ

Scenes From the Hood

13:01 – 14:00

14

0.01750

$0.24500

 

 

 

 

 

 

 

 

 

 

 

 

Controlled composition rates 2006

Length

Statutory

Controlled %

Controlled Composition Rate

 

 

 

 

 

 

 

 

Length

Statutory

Controlled %

Controlled Composition Rate

 

 

5

$0.0910

0.75

$0.0682

 

 

6

$0.10500

0.75

$0.0788

 

 

7

$0.12250

0.75

$0.0919

 

 

8

$0.14000

0.75

$0.1050

 

 

9

$0.15750

0.75

$0.1181

 

 

10

$0.17500

0.75

$0.1313

 

 

11

$0.19250

0.75

$0.1444

 

 

12

$0.21000

0.75

$0.1575

 

 

13

$0.22750

0.75

$0.1706

 

 

14

$0.24500

0.75

$0.1838

 

 

 

 

 

A composer can try to charge more for the first recording of a song. Unfortunately, earning a signing bonus or additional mechanical royalty is possible in very rare cases when there exists competition for the use of a particular composition.

 

Foreign mechanical rates vary from country to country and are usually a percentage based on the wholesale price otherwise known as PPD or Publishers Price to Dealers.

 

If I assign my copyright in a song to a publisher, can I ever get it back?

Yes. Regardless of anything in your songwriter agreement with the publisher, a work not made for hire that was assigned by you on or after January 1, 1978 can be reclaimed by you (or your copyright-entitled heirs) 35 years after the work is published or 40 years after the assignment, whichever is earlier.

 

The law specifies the mechanics of giving notice to the publisher in order to accomplish this.

A work becomes “public domain” after your copyright expires. That means anyone can perform or record it without paying a fee.

 

US Copyright Historical Dates and Amendments

1787: U.S. Constitution

According to Article I, Section 8, Clause 8 of the U.S.  Constitution, "the Congress shall have power . . . to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries."

Courtesy of: http://arl.cni.org/info/frn/copy/timeline.html

 

1790: Copyright Act of 1790

 The First Congress implemented the copyright provision of the U.S. Constitution in 1790. The Copyright Act of 1790, An Act for the Encouragement of Learning, by Securing the Copies of Maps, Charts, and Books to the Authors and Proprietors of Such Copies, was modeled on the Statute of Anne (1710). It granted American authors the right to print, re-print, or publish their work for a period of fourteen years and to renew for another fourteen.  The law was meant to provide an incentive to authors, artists, and scientists to create original works by providing creators with a monopoly. At the same time, the monopoly was limited in order to stimulate creativity and the advancement of "science and the useful arts" through wide public access to works in the "public domain." Major revisions to the act were implemented in 1831, 1870, 1909, and 1976.

Courtesy of: http://arl.cni.org/info/frn/copy/timeline.html

 

 

1909: Revision of the U.S. Copyright Act

 A major revision of the U.S. Copyright Act was completed in 1909. The bill broadened the scope of categories protected to include all works of authorship, and extended the term of protection to twenty-eight years with a possible renewal of twenty-eight. The Congress addressed the difficulty of balancing the public interest with proprietor's rights:

 

 "The main object to be desired in expanding copyright protection accorded to music has been to give the composer an adequate return for the value of his composition, and it has been a serious and difficult task to combine the protection of the composer with the protection of the public, and to so frame an act that it would accomplish the double purpose of securing to the composer an adequate return for all use made of his composition and at the same time prevent the formation of oppressive monopolies, which  might be founded upon the very rights granted to the composer for the purpose  of protecting his interests" (H.R. Rep. No. 2222, 60th Cong., 2nd Sess.,  p. 7 [1909]).

 

1976: Revision of the U.S. Copyright Act

 The 1976 revision was undertaken for two primary reasons.  First, technological developments and their impact on what might be copyrighted, how works might be copied, and what constituted an infringement had to be addressed. Second, the revision was undertaken in anticipation of rules set at the Berne Convention. The U.S. wanted to adhere to the guidelines proposed at the Berne Convention. It was felt that the statute needed to be amended to bring the U.S. into accord with international copyright law, practices, and policies. The 1976 act preempted all previous copyright law and extended the term of protection to life of the author plus 50 years (works for hire were protected for 75 years). The act covered the following areas: scope and subject matter of works covered, exclusive rights, copyright term, copyright notice and copyright registration, copyright infringement, fair use and defenses and remedies to infringement.  With this revision, for the first time the fair use and first sale doctrines were codified, and copyright was extended to unpublished works. In addition, a new section was added, section 108, that allowed library photocopying without permission for purposes of scholarship, preservation, and interlibrary loan  under certain circumstances.

 

 In addition to section 108, section 107 is important to libraries because it contains an exception to the exclusive rights of owners to make and distribute copies of their works. It states that "the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright." To determine whether the use of a work is a fair use, the following four factors are to be considered: purpose and character of the use, nature of the copyrighted work,  the amount and substantiality of the portion used in relation to the whole,  and the effect of the use on the potential market. See Title 17 of the U.S. Code.

 

 1976: Classroom Guidelines

 In addition to legislative reforms, private negotiations between owners and users of copyrighted materials resulted in guidelines for classroom and educational use as well as reserve room use. These guidelines were not part of the statute but were included in the House  report accompanying the 1976 act. The 1976 "Agreement on Guidelines for Classroom Copying in Not-for-Profit Educational Institutions with Respect to Books and Periodicals" was adopted by thirty-eight educational organizations and the publishing industry. According to the text of the guidelines, the purpose was "to state the minimum and not the maximum standards of educational fair use under section 107 of the [Copyright Act of 1976]. The parties agree that the conditions determining the extent of permissible copying for educational purposes may change in the future; that certain types of copying permitted under these guidelines may not be permissible in the future; and conversely that in  the future other types of copying may be permissible under revised guidelines."

 

1998: Digital Millenium Copyright  Act

President William Jefferson Clinton signed the Digital Millennium Copyright Act (DMCA) into law on October 28, 1998 (P.L. 105-304). The law's five titles implemented the WIPO Internet Treaties; established safe harbors for online service providers; permitted temporary copies of programs during computer maintenance; made miscellaneous amendments to the Copyright Act, including amendments that facilitated Internet broadcasting; and created sui generis protection for boat hull designs. A controversial title establishing database protection was omitted by a House-Senate Conference.

 

 Among the most controversial provisions of the DMCA is Section 1201. According to Jonathan Band of Morrison & Foerster, LLP, Section 1201 "prohibits gaining unauthorized access to a work by circumventing a technological protection measure put in place by the copyright owner where such protection measure otherwise effectively controls access to a copyrighted  work. This prohibition on unauthorized access takes effect two years after enactment of the DMCA." Over the next two years, the Librarian of Congress conducted a rulemaking proceeding to determine appropriate exceptions to the prohibition. Additional rulemakings will occur every three years.

 

For more information on the DMCA, see http://www.arl.org/info/frn/copy/dmca.html and http://www.hrrc.org/html/DMCA-leg-hist.html.

 

Reprinted from: http://arl.cni.org/info/frn/copy/timeline.html

 

For more historical information, please visit:

http://www.copyright.gov/circs/

http://arl.cni.org/info/frn/copy/timeline.html

 

Important websites:
Music licensing

www.harryfox.com

 

Performing rights organizations
www.ascap.com

www.bmi.com

www.sesac.com

 

Digital performing rights organizations:

www.soundexchange.com

 

Copyrights:

www.copyright.gov

http://www.copyright.gov/docs/fees.html

 

Florida small business administration:
www.sunbiz.org

 

U.S. Small Business Administration:
www.sba.gov

 

Taxes:
www.irs.gov

 

Patents and trademarks:
www.uspto.gov

 

National Academy of Recording Arts and Sciences:
www.naras.com

www.grammy.com

 

Music database:

www.allmusic.com

 

On-line music downloads:

www.itunes.com

www.apple.com

www.emusic.com

References

 

Moser. D. J. (2006). Moser on music copyright. Boston, MA: Thomson Course Technology PTR. (ISBN: 1598631438).

Passman, D. S. (2003). All you need to know about the music business (5th ed.). New York, NY: Free Press. (ISBN: 0743246373).

U.S. Copyright Office. (2008, July). Copyright basics. Retrieved September 2, 2008,

from http://www.copyright.gov/circs/circ1.pdf