Copyrights: What The @$#%&?

[Dugz Ink]

I field a ton of “copyright” questions on this forum, even though I’m not an attorney, because I have learned a lot while working (as a volunteer and committee member) for the Songwriter’s Guild of America.

Here are some of the common questions.

“WHAT CAN BE COPYWRITTEN?”

First, the header is incorrect; “copywritten” is not a real word. In simple terms, the term “copyright” means your RIGHT to manage/control who does/doesn’t make COPIES of material that was/were created by you and/or is owned by you. The last half of the word does not imply that the covered material is written material. Lyrics, melodies, sheet music, recordings, (etc.) can be “registered” and/or “protected”… but not “copywritten.” The word “copyrighted” is poor English, but it is usually accepted. “The first step towards wisdom is calling things by their proper names.” (Chinese proverb… I think)

But I digress. Back to the subject.

As I mentioned above, there are a variety of items that are protect by the copyright laws, and a wide variety of things that can be registered with the Library of Congress (in the USA) or other groups that are around the world. Single words, short phrases, melodic progressions/rifts, and concepts can NOT be protected by copyright… only the completed piece, which is registered as a “whole” creation.

If the laws were written differently, then only one band would be able to record a C to G walk-up… only one writer would be able to write “I love you” into a song… and so on. However, that means that other people can use the things that are NOT protected in their songs, even though they got the idea from listening to your song.

Need more info? See WAT WORKS ARE PROTECTED on the official web site for the US Copyright Office.
That’s the short form. Here’s the long version: TITLE 17, CIRCULAR 92, CHAPTER 1

Confused? If not, keep reading; it gets confusing.

WHO CAN RECORD MY MUSIC?

Here’s the next thing that confuses people: Just because you hold a copyright to a recording, that does not mean that other people cannot record their own version. Once a song has been “distributed to the public under the authority of the copyright owner,” you must sign a “Compulsory License”… regardless of what you think about the band. (Technically, this would include music that is on sites like Soundclick.)

The good news? Under the terms of the Compulsory License, they’re responsible for the royalty payments. The payments can come from a person, manager, publisher, label, (etc.) but the person/people who sign the license are held responsible. As the saying goes, “If you want to play, you’ve got to pay.”

Need more info? Details can be found in CIRCULAR 73.
For more details, see LICENSING AND C.A.R.P SECTION on the official web site for the US Copyright Office.

DOES THAT MEAN THEY CAN SAMPLE MY MUSIC?

If somebody wants to record their own song using a sample out of your song, they have to get your permission… and you can deny them. The Compulsory License (and all pertinent laws) only gives a person/group the right to re-record or perform your song (in a manner that is identical or similar to your version); it does NOT give them permission to use your recording, which belongs to you… or any person/group (like a publisher) to whom you have assigned your rights to that recording.

Again, there are various things that are protected by the copyright laws. The lyrics, melody, sheet music, and recording are EACH protected separately, and are not to be considered as just 1 item… even though ALL are registered at the same moment when you submit a recording to the Library of Congress or other groups that are around the world.

WHO HOLDS THE COPYRIGHT TO A RECORDING, ME OR THE BAND?

If a band records your song, you can still retain the copyright to what you wrote, but they (or their label/publisher/etc.) hold the copyright to the actual recording. Just because you gave them permission to record your song, that does not mean that you hold the copyright to the recording, and it does not mean that they hold the copyright to the song.

Also, the Compulsory License only gives the band (and their representatives) permission for “making and distributing phonorecords”… which would include CDs, MP3s, and so on. It does NOT give them permission to put their recording in a “theatrical performance or audiovisual work”… like a Broadway musical, a movie, or a TV commercial.

If your song is recorded, and a person/group wants to use the band’s recording in a movie or a commercial, that person/group has to sign deals with the copyright owner of the song AND the copyright owner of the recording.

Did I mention that this can get confusing?

WHAT CAN I DO WITH OTHER PEOPLE’S SONGS?

If you’ve read this far, then you should have a really good idea of what you can (or cannot) do, based on what people can (or cannot) do with your music. However, there are a few things that need to addressed.

DOWNLOADING
According to a recent ruling by a Canadian judge, the person who illegally posts songs for downloading is guilty, not the down loaders, because the person who posts the song(s) is providing “distribution” without the permission of the copyright owner(s).

That’s partially correct.

If you download music, you are literally making a copy of a song. If you have not acquired permission from the copyright owner to make copies, or have not acquired/purchased the song from a person/group that has permission from the copyright owner to distribute copies, then you are making an illegal copy. Period.

SONG POSTED FOR CRITIQUES

In the Song Critique section of Studio Central, it is implied that you have permission to listen to their song, and to make a copy for evaluation purposes… but this does NOT give you permission to make copies for your personal enjoyment or personal gain. To do that, you MUST (by the letter of the law) contact the copyright owner and get their permission… unless they have listed permission(s) in that post.

However, posting a song to the Song Critique section also puts certain uses of the song in a “grey” area. Even though you cannot copy it for your personal use, you CAN copy it for “educational” purposes.

Here’s an example: SC member GirlGotBass posted a song to the Song Critique section. I made a copy, added some processing, and posted a link to my version in the same thread. This is covered under the Fair Use laws, which states…

Limitations on exclusive rights: Fair use

Notwithstanding the provisions of sections 106 and 106A, 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. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include —

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.

However, that still does NOT give me permission to use MY version for my personal enjoyment or personal gain, because it is not unique or dramatically different from the original. (Read § 107 again; it doesn’t give you permission to create a unique or dramatically different version.) The copyright owner still holds the copyright to the recording, and they still have to give permission for use of any version outside of the Song Critique section of Studio Central.

CAN I GET A COMPUSORY LICENSE FOR THOSE SONGS?

No. If a person posts a song in the Song Critique section, that does not mean that you can file for a Compulsory License. Any judge (who isn’t senile) would recognize that the Song Critique section of Studio Central is NOT a form of “distribution to the public”… and would uphold the copyright owner’s right to refuse to allow you to record the song.

That’s why I spent an hour spelling out exactly what could (and could not) be done with the lyrics, melodies, and recordings that I offered to other members in the REMIX CONTEST. It’s not because I’m trying to protect every piece of my music; it’s because it is MY obligation to define what other people are allowed to do with MY work.

WHAT ABOUT “CREATIVE COMMONS”?

The fact is, the people who run this site do NOT have the authority to provide you (the copyright owner) with rights that are not provided by the Copyright laws. All they are providing are ways to give “blanket” permissions to everybody to do certain things with your works.

Isn’t that a good thing?

I don’t think it’s “good” or “bad”… it’s just a “new” thing. I already have the right to give “blanket” permissions to everybody to do certain things with my works. Personally, I would prefer that people ask for my permission; if they are willing to go through that process, then they show that they respect my work, instead of just looking at it as a means to finance their life.

If you have more questions, you can post them here, and I will try to help.

You can also visit http://www.copyright.gov/

Written by Douglas Shaw
©2005, Dugz Ink dot com Publishing
… with unrestricted permissions for use by Studio Central, Tweakheadz Lab, and their owner/administrator

[AlexHall74]

If this isn't a sticky note for the Member's Song Reviews Forum I don't know what is.

This is an accurate, clear, concise, and complete crash course on copyrights and how they pertain to all of us.

Great post, Doug!

Regards,

-Alex

[Farview]

I have a related question. I get a lot of bands that take dialog and sound effects from movies and integrate them into their songs. Is that legal?

[MASSIVE Mastering]

Dugz - Outstanding. Two "Thumbs Up" icons if I could find them.

Farview - It's essentially illegal without permission, but it's not your responsibility to secure the permission. Just as it isn't my responsibility to get permission if artists send in cover tunes for me to work on. They need to contact HFA or whoever may have the mechanical rights.

[Dugz Ink]

John (Massive) is right on both counts.

And that's a good question to have in this thread. Thanks for asking.

D~s

[owel]

And add to that... reputable CD duplication houses will not produce/print your CD until you've sent documentation/proof you have licenses/mechanicals to use the music in your CD.

[MontyTX]

Here is an excellent site overviewing the concept of fair use of other's intellectual property:

http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/chapter9/index.html

And a sub link regarding music in particular:

http://fairuse.stanford.edu/Copyright_and_Fair_Use_Overview/chapter9/9-c.html#4

And an excerpt regarding musical parody:

Fair use. The rap group 2 Live Crew borrowed the opening musical tag and the words (but not the melody) from the first line of the song "Pretty Woman" ("Oh, pretty woman, walking down the street "). The rest of the lyrics and the music were different. Important factors: The group's use was transformative and borrowed only a small portion of the "Pretty Woman" song. The 2 Live Crew version was essentially a different piece of music and the only similarity was a brief musical opening part and the opening line. (Note: The rap group had initially sought to pay for the right to use portions of the song but were rebuffed by the publisher who did not want "Pretty Woman" used in a rap song.) (Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994).)

If you are parodying something, you're a lot more likely to have a fair use argument, than if you are simply copying something.

A possible counter-example would be Guns n' Roses' use of audio from Cool Hand Luke at the opening of Civil War from Use You Illusion. This probably couldn't be construed as parody, but it is a small portion of the material, probably has little impact on the commercial viability of the film itself, and there is a bit of transformative effect in the use. Though I would imagine that GnR got rights to this, maybe because their label (label parent) was owned by whoever owned or owned the rights to the movie itself. Or they just negotiated for it, because they could.

Monty

[Dugz Ink]

If you are parodying something, you're a lot more likely to have a fair use argument, than if you are simply copying something.

Re-read the part about "When Sonny Gets Blue". At the end they point out that Weird Al Yankovic seek permission before doing parodies.

Also notice that the writer(s) can't keep track of their own facts... or can't write those facts clearly... I can't tell which. (First they say that 29 seconds of lyrics and 6 bars were used, then they said 29 seconds of music was used.)

And some of thier other observations are way too shallow.

I wouldn't base my career on that sloppy piece of writing.

Though I would imagine that GnR got rights to this ... because they could.

You would never get that released by a major label without the appropriate paperwork. And there's no doubt that they have enough contacts to make the paperwork happen without the band having to lift a finger.

D~s

[MontyTX]

Re-read the part about "When Sonny Gets Blue". At the end they point out that Weird Al Yankovic seek permission before doing parodies.

I'm not arguing against seeking permission at all. I'd always recommend seeking permission.

I wouldn't base my career on that sloppy piece of writing.

I'm not recommending anyone do so.

As for it being sloppy writing, it's an overview of the case law on the matter, and is probably very similar to whatever text or treatise a sitting judge or a practicing attorney would use as a reference starting point if he was hearing a case involving the matter of fair use. (More accurately, it is what the judge or attorney's clerk would start researching with).

I point out this information, because there are legitimate reasons to exercise the right of fair use when efforts to seek permission are impossible or rebuffed. I'm not arguing for ripping off other people's work at all. I have respect for copyright as both a songwriter and a law student.

However, if someone wishes to make a political statement with their music, and making such a statement requires the fair use without permission of a piece of copyrighted material, the kind of information provided by NOLO does provide some non-professional guidance.

As always, seek professional legal counsel. Just trying to be helpful as a layman and concerned citizen.

Example: A fictional whiskey-drinking, boot-stomping country music singer pens a jingoistic ballad entitled "Bush Rocks the Whole House." Which includes a memorable blues lick and the poignant lyric "Bush rocks the whole house, not just the White House."

A fictional vegetarian, card-carrying member of the ACLU samples the country song, and in the context of a wholly different song throws in the blues lick once, and follows with the original lyrics sung by the original singer with a minor substitution sung by the new artist: "Bush rocks the [out] house, [even when he's in] the White House."

This is an example of the sort of use of copyrighted material for which permission would be unlikely. This is also an example of use which is arguably fair use.

For the record, I used to be in a Texas country band, and voted for Bush in 2000 (though against in 2004), so my example is in no way politically-motivated or biased.

Monty

[Dugz Ink]

As for it being sloppy writing, it's an overview of the case law on the matter...

I'm not arguing with you. Rather, I'm very disappointed that 1) students at Stanford can't write better observations, and 2) they missed some major points.

For example, in the case concerning te use of "Pretty woman, walking down the street" they failed to identify the primary hurdle: is this covered by any copyright law? If the phrase had been "I saw a pretty woman walking down the street" then it would NOT qualify as material protected by copyright, because it is a common phrase, and it's usage cannot be restricted.

If you acertain that a phrase DOES qualify for copyright protection, then you can move on to the discussion of copyright exceptions... at which point you examine things like the Fair Use section.

If it does not qualify, arguing that it meets the exception is a mute point.

My efforts are intended to motivate people to examine and understand the copyright laws in depth, not a shallow overview... like the one provided by those college students.

This is also why we have groups like the Songwriter's Guild, who inform people of heir rights... and will even jump in "afterwards" to protect the rights of writers and composers. And the vast majority of people who come to us for help are people who were misinformed or not adequately informed by others.

D~s

[Steven mc.]

Good stuff. so it is Legal to record Cover's for your own enjoyment. How screwed would one be If he tracked a Cover of something and included it on a personal album that got distributed for Free over the net?

Also, what about the 50 year rule? In one Book I read about copyrights, It said if the song is 50 Years old, the copyright expires. so I can freely record and sell Bach, or Frank Sinatra. right? do you have any info on that?
Thanks as always

[johnzilla]

Also, what about the 50 year rule? In one Book I read about copyrights, It said if the song is 50 Years old, the copyright expires. so I can freely record and sell Bach, or Frank Sinatra. right? do you have any info on that?
Thanks as always

I'm no expert, but there were some big changes to copyright law in the US in 1978 and again in 1992 (I think). I think the period isn't 50 years, it is more like 95, depending on when the original work was published. The answer is basically "it depends" because it depends on when the original was published, whether anyone filed renewals, whether renewals were even required due to age, etc. etc.

Good question about classical works like Bach and Beethoven. I think that is another "it depends"....because people who transcribe their work into sheet music and sell that sheet music own the copyright to the transcription and copyright (if understand correctly).

[Dugz Ink]

The answer is basically "it depends" because it depends on when the original was published, whether anyone filed renewals, whether renewals were even required due to age, etc. etc.

That is correct.

... because people who transcribe their work into sheet music and sell that sheet music own the copyright to the transcription and copyright (if understand correctly).

If I transcribe a speech, I do not own the speech or the transcription, because I am merely copying the exact words. However, my notes and/or interpretation of the speech are solely my own, and I can publish them with footnotes that credit any referenced material.

If I transcribe every note in a Beatles song, I am merely copying a previously registered work. However, if I create my own version... like a Muzak version with trumpets and a Salsa beat... then it's unique and I can claim ownership of the notation... and of my own recording... but not of the song.

[Steven mc.]

How can you own your own recording...But not the song? what can do with that?
also what about Elvis and stuff thats over 50 Years? also it doesn't make sense to re-copyright something after 50 years, Because thats why the 50 years law is in place in the beginning....?

[Dugz Ink]

How can you own your own recording...But not the song? what can do with that?

A song is made up of words and/or musical notes.

If I record a cover of an "Elvis" song (with permission) then I own my recording (which is unique, and therefore my own) but I do not own the song. I could sell my recording, but I would have to pay royalties to the current copyright holder of the song.

As far as duration, you have to go to the Copyright Office web site and read all of the details about copyright duration. No, you can't re-register; that would negate the whole expiration thing.

And we're not going to turn this into a debate about how smart/stupid the laws are; this thread is merely intended to clarify the common misunderstandings. It also is NOT "professional legal advice."

[johnzilla]

If I transcribe every note in a Beatles song, I am merely copying a previously registered work. However, if I create my own version... like a Muzak version with trumpets and a Salsa beat... then it's unique and I can claim ownership of the notation... and of my own recording... but not of the song.

Understood. What is the protection that sheet music publishers have, though?

For example: if someone prints a book of Beethoven symphonies for piano, can I copy everything, print it and sell it myself with impunity?

Or: if someone prints a book of Metallica music for guitar and piano (Metallica for piano?!?!? ), what is stopping me from copying everything, or transcribing everything to tab and printing/releasing that?

[Steven mc.]

ah...so is it 50 years then?

I'm really not trying to argue, only figure it out dugz.

[johnzilla]

ah...so is it 50 years then?

I'm really not trying to argue, only figure it out dugz.

From the copyright site:

Works Originally Created on or after January 1, 1978
A work that was created (fixed in tangible form for the first time) on or after January 1, 1978, is automatically protected from the moment of its creation and is ordinarily given a term enduring for the author’s life plus an additional 70 years after the author’s death. In the case of “a joint work prepared by two or more authors who did not work for hire,” the term lasts for 70 years after the last surviving author’s death. For works made for hire, and for anonymous and pseudonymous works (unless the author’s identity is revealed in Copyright Office records), the duration of copyright will be 95 years from publication or 120 years from creation, whichever is shorter.

So looks like author's life + 70 for works where the author is known, and 95 or 120 years for anonymous works.

For works registered prior to 1978, it sounds like 95 years is the safest bet.

[Dugz Ink]

Understood. What is the protection that sheet music publishers have, though?

For example: if someone prints a book of Beethoven symphonies for piano, can I copy everything, print it and sell it myself with impunity?

Or: if someone prints a book of Metallica music for guitar and piano (Metallica for piano?!?!? ;) ), what is stopping me from copying everything, or transcribing everything to tab and printing/releasing that?

Just stop and think about it...

If you recreate it note for note, then why would that be any different than making a copy of it? Since making a copy (without the permission of the copyright holder) would be illegal, why would recreating their work be any different?

Now let's create a hypothetical situation based on what we've said so far.

Let's say that somebody printed piano notation for "Enter the Sandman" that was different from the original tablature, then you created guitar tabs based on their sheet music. If it isn't identical to either the original tabs or the notation for pianos, it could be argued that it is a unique work... at which point you own the copyright to printed copies and digital files of your guitar tabs, but you would still owe mechanical royalties to the person/company that holds the copyright to the song.

And, please, don't ask me about creating a recording from a MIDI file that was programmed from sheet music that is for a song that was registered in 1978 by a relative of the writer who died in 1956. I'm not that smart.

[Steven mc.]

Lol. Thanks, Both of you

[johnzilla]

And, please, don't ask me about creating a recording from a MIDI file that was programmed from sheet music that is for a song that was registered in 1978 by a relative of the writer who died in 1956. I'm not that smart.

That was funny. Thank you, though, for taking the time to explain things so clearly.

I do wish it could be less confusing, that's for sure. I've been researching what it would take to start my own record label, and the amount of red tape and lawyers and publishing companies and rights management companies and blah blah blah that you have to deal with is mind-boggling.

It is no wonder that mainstream music costs so much...I'm not disrespecting any artist's effort, far from it. It just seems to me that if there was a way to get rid of all the paperwork and bureaucracy between the artist and the listener, we'd all be better off. Except, that is, for the lawyers.

[Steven mc.]

Hey, Did you know:

If all the Lawyers in the world were lined up lying down Head to toe around the equator,

We'd be better off.

[MDarcy]

I want to make sure I understand the compulsory license bit.

I hear a song by UltimateShoegazerBandofAllTime called DreamyMemoriesOfHowYouSqueezedMyHeartDry on the radio and buy the album. My band mates and I figure it out from the record and want to add it to our CD of our originals for some reason.

Can we record of our version of DreamyMemoriesOfHowYouSqueezedMyHeartDry and then, through the appropriate licensing authority (which I would assume would be something like ASCAP or BMI) require UltimateShoegazerBandofAllTime (assume the whole band has song writing credit) to license our version via compulsory license?

Basically I guess I'm asking what constitutes "distributed to the public under the authority of the copyright owner"...does a recording for sale or radio release count or does it need to be published sheet music? If a recording for sale or radio counts what about internet radio?

Also, does compulsory license only exist for recording purposes or also for performance purposes in a live setting?

[Dugz Ink]

For a good overview on compulsory licenses, check out THIS PDF.

Basically I guess I'm asking what constitutes "distributed to the public under the authority of the copyright owner"...does a recording for sale or radio release count or does it need to be published sheet music? If a recording for sale or radio counts what about internet radio?

Technically, anything that's posted to a web site has been published and distributed, but that doesn't mean that every court in the world will view that as "distributed to the public under the authority of the copyright owner."

My advice: contact the copyright owner, and ask them for a compulsory license. If they say that the song has not been distributed ("it's only on the web site"), don't argue with them. You don't want to sign a contract with somebody who doesn't understand the law.

NOTE: At the time I posted this message, the current wiki article on compulsory licensing contained gross errors and misinformation. If you want the official details, go to the web site for the copyright office that has authority over your works. Do NOT trust non-official sites.

Yes, that would include my own articles. Your assetts will be in danger, not mine, so always double-check everything I tell you... and triple-check everything you read on other sites like Wikipedia.

Also, does compulsory license only exist for recording purposes or also for performance purposes in a live setting?

This is a different animal... and a perfect example of why so many people get so confused over all of the laws. Recording a song falls under the category of "mechanical royalties" and performing a song falls under the category of "performance royalties."

The former is handled directly with the copyright owner.

The latter is handled through the Performance Rights Organizations... BMI, ASCAP, and SESAC... and their web sites will help you dig through the quagmire of who pays what to who.

Performance royalties are way beyond the scope of this thread... and my skills. As a member of ASCAP, I've read up on what percentage of what they're supposed to pay me if my songs are played on the radio or in concert venues, and the math made my head hurt. If I ever have songs on the radio, I will gladly pay somebody to make sure that I'm getting paid what I deserve.