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.
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