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Copyright Law for the Music Industry

Copy Right before you Copy Wrong

Written by Neal Reddy, co-founder of Aleven Creatives, a graphic & multimedia design studio for the entertainment industry.

Know the law

It is that time. You have poured your blood, sweat and tears into the recording of your album and it’s finally done. All that is left to do is hand your artwork and master over to the CD manufacturer, sit back, relax, and wait for your new album to be pressed up.

This is almost true – but first do a quick check to make sure you are in full compliance with copyright law. It is your responsibility to understand the laws surrounding your business, so make sure you know the basics or you may find yourself in trouble. If this happens, the “I didn’t know I was doing anything wrong” excuse won’t work.

The best way to understand copyright law and regulations is to know the law itself. For a detailed definition of copyrights and all the surrounding rules and regulations please visit our friends at the U.S. government here http://www.copyright.gov

We know what you are thinking…copyright rules and regulations are ridiculous with their overly-complex jargon and verbiage. Even if you were able to decipher legalese, it wouldn’t solve the problem of staying awake to read the thing. Do not worry. Hopefully, the rest of this article will touch on the key points of the law and present them in a way anyone can understand.

We are not lawyers, but have compiled this information through our experience over the years and hope you will find some of it useful. This material is believed to be correct at the time it was written, but if you have any questions please contact a lawyer in your area.

Don’t get Sued – how to use other people’s music legally

There are basically three situations you might encounter when it comes to using another artist’s song on your album. You can use the actual full song, sample a song, or cover a song. All three of these uses require permission and a license.

Using an entire track of someone else’s work

This first situation mostly occurs when you make compilation CDs. In this case, you want to use the whole song created by another artist in its entirety. Before you can do this you need to obtain the Sound Master or Master Use License. This gives you the permission or license to use the song, but you are not granted any copyright to the song.

So how do I obtain this permission you ask. Do I call the artist? If only it were that easy.

The master license can ONLY be obtained from the owner of the master recording. Oddly enough, most of the time the owner is not the artist. So even if the artist gives you the go ahead you will need to find the owner of the master recording before you can legally be granted a license. You will find that record labels usually own the master recording rights and licenses. You must find the owner of the master, tell them which track you want to use, the number of CD’s you are planning to make, the countries you intend to distribute within, and probably pay them some sort of monetary compensation. But there’s no guarantee - If they do not want to grant you the license - they DON’T have to.

Sampling

So you want to be the next P. Diddy and use a clip of a previously recorded song in your work and make millions. Do you need a license when you’re only using a little bit of someone else’s work? YES! YES! YES! Not only will you be embarrassed like Vanilla Ice in every interview, but you will also invite a slew of lawsuits and criminal actions.

Using a piece of a previously recorded song in your recording is called sampling. Any kind of previously recorded clip from a movie, commercial, or music is considered a sample. Sampling, just like using the full-recorded version, requires you to obtain the Sound Master or Master Use License. It does not matter if you add effects to the sound clip to make it your own; if the derivative work belongs to someone else you need to obtain the license before you can use it. It makes no difference whether you use 5 seconds or 5 minutes of another artist’s previously recorded song - you still need to obtain the Master Use License from the owner of the license before you are legally able to use the song in any way.

They’ll never find me…I don’t make that many CD’s with samples! Be careful of this previous statement. Most CD manufacturing plants will require an Intellectual Property Rights form to be signed with every order. This form, created by the Anti-Piracy Program, forces you to clearly state that you own all the material found on your recording. If you don’t sign the form – they won’t replicate or duplicate your order. Statutory damages for a single act of sampling someone’s music without permission typically range from $500-$20,000. If the copyright owner can prove you intentionally used their music you could be liable for damages of $100,000 and up. Beyond monetary penalties, copyright infringement is a crime. Criminal penalties are also a possibility if the U.S. Attorneys office gets involved and can prove you willfully infringed on the copyright.

Covering Songs

Unlike the previous two situations, if you decide to cover a previously recorded song on your CD you WILL NOT need to obtain a Master Use or Sound Master License. You will however need to obtain a Mechanical License.

Mechanical Licenses grant you the right to use the actual musical composition unlike Sound Master or Master Use License which allow you to use the actual song itself. There are essentially two routes to obtain a mechanical license. You can try to negotiate your own rate with the copyright owner or just use a standard flat rate.

If you wish to negotiate a rate, you first will need to contact an organization such as the U.S. copyright office, ASCAP, BMI, or SESAC and find out who owns the copyright to the song you want to cover. You then must contact the owner and negotiate your own rate for the right to cover their song.

If all that seems a little too tedious for you, do not fret. Agencies such as the Harry Fox Agency can help simplify things for you. The Harry Fox Agency is granted the right to issue Mechanical Licenses for the artist. The fee you pay for the right to cover a song is a standard flat fee. It is 8 cents per song for songs up to five minutes. If a song is over 5 minutes it will cost you an extra 1.55 cents a minute per song.

Eight cents per song might seem too good to be true; that is because it is. It is actually 8 cents per song, per CD. For example if you cover a song and want to manufacture 1,000 copies of the CD you will need to pay $80 (1,000 * .08).

If you are making less than 2,500 copies of your recording with the cover you can file for the mechanical license completely online at http://www.songfile.com. Applications for more than 2,500 copies need to be mailed in. One final note when it comes to cover songs…make sure you credit the owner of the song who you are covering on your artwork. After all, they did give you permission to use the recording or musical composition and is considered proper industry etiquette.

My Friend Exception

Exceptions, exceptions, exceptions, exceptions… Like every law or rule there are always exceptions. However, exceptions are not here to help you find loop holes to cheat the law. Fair Use is extremely strict so stay away from it unless you fully understand it.
Rather than focusing on exceptions, try to stay in the black and white areas of copyright law. It is often not worth the risk to take a chance with breaking copyright law. Stretching the law or definitions to protect yourself will not hold up in court. When in doubt, please consult a professional. There are many pro-bono law groups around that can help you. Our local group, Georgia Lawyers for the Arts, is fantastic. Find other national volunteer lawyer’s groups within their resource section here: http://www.glarts.org/pages/6/index.htm

Protect Your Music

Once you make sure you’re following basic copyright law, protect your own music. By law, any song you create is copyrighted to you. In theory, you do not need to file any papers because the copyright is inherently yours since you created the work. It does not matter whether you make the recording in a basement on your analog 4-track or whether the song was created in a $500/hr professional studio; the song is copyrighted to you. So any part of the song: lyrics, music, or musical composition that you created cannot be used without your permission.

However, proving this creation is impossible in court without paperwork to justify it. Without the proper paper work being filed, it becomes a virtual “he said, she said” of who actually owns the copyright. Being smart and proactive in filing your copyright registration will save you hours of potential headaches in the future. Owning the copyright to a piece of music gives you the exclusive right to:

• To reproduce the copyrighted work in copies or recordings
• To prepare derivative works (i.e. arrangements) based upon the copyrighted work
• To distribute copies or recordings of the copyrighted work to the public
• To perform the work publicly
• To perform the copyrighted work publicly by means of a digital audio transmission

Registering the copyright for your work entails filling out a form and sending it to Uncle Sam. There is a flat $30 fee associated with every form. It does not matter whether you register 50 songs or one song on the form – so add as much as you can to save you some cash. Please check out this link http://www.copyright.gov/register/sound.html for detailed steps to registering your copyright and all the necessary forms and contact information. Once you obtain the copyright it is valid for 70 years after the author’s death. This time limit applies to all works created after 1978.

The Poor Man’s Copyright

You may have heard rumors about the Poor Man’s Copyright. Before we describe the Poor Man’s Copyright know this - it does NOT work. The basic premise behind the Poor Man’s Copyright is using the postal service to verify and validate the date of creation of your work. Like we mentioned earlier, once you create the work you own the copyright to it, but proving that is nearly impossible unless you register with the U.S. Copyright Office. The rumor of the Poor Man’s Copyright was created to save money essentially. Here is the gist of the rumor:

“Place the work that you want to copyright, into an envelope (music, scripts, websites, software, architecture etc…). Seal the envelope. Mail the envelope to yourself through the postal service. When the mail arrives, don’t open it. The postmark date will prove the date you completed the work and will protect your copyright.”

THE POOR MAN’S COPYRIGHT DOES NOT WORK AND WILL NOT HOLD UP IN COURT. It can be easily faked. In order to have it hold up in court, you would need to have a slew of professionals to prove that the postmark is legitimate, the envelope was actually sealed on the postmarked date, you didn’t create the work after the postmarked date, etc.

The poor man’s copyright is useless. After all the headaches you will be begging for that $30.00 registration fee.

Make Money for Your Work

So you have taken the time to obtain the copyrights to your music, but how do you make sure you are getting what you deserve for the use of your material? Agencies such as the ASCAP, BMI, and the SESAC are performing rights societies that help collect royalties for public performances of your works. Affiliating with the Harry Fox Agency will help you collect royalties when your music is used on a CD, tape, or record. Both of these types of agencies help artists succeed in the nearly impossible task of policing the use of their copyrighted material. That’s right - there are actually people out there whose job it is to make sure you receive proper credit and compensation for the use of your work.

You can visit and register with the previously mentioned companies using the contact information below.

ASCAP
(800) 95-ASCAP
http://www.ascap.com

BMI
(212) 586-2000
http://www.bmi.com

SESAC
(615) 320-0055
http://www.sesac.com

The Harry Fox Agency
(212) 370-5330
http://www.harryfox.com

If you are a small unsigned band, you may be asking or thinking to yourself, “Why should I bother taking the time to do any of these things?” The fact of the matter is whether you are a small garage band or Pearl Jam, you need to protect your music. Your song could be heard one day and then stolen by someone. The song you wrote in your basement could easily be the next biggest hit. You just never know so be proactive and protect yourself.

We are not lawyers, but the material within this article was believed to be correct at the time it was written. If you have any questions about the topics mentioned in this article, please contact a lawyer in your area.

Written by Neal Reddy, co-founder of Aleven Creatives, a graphic & multimedia design studio for the entertainment industry.