Licensing opportunities for music copyright

This is the fourth of a 4-part series on issues in music copyright. Part 4 will provide an overview of the different licensing opportunities available for musical compositions and sound recordings.

Authors of musical works may use their works for their own benefit or they may instead, or additionally, allow third parties to use their works via a license. In many instances a copyright owner will negotiate a direct license with a licensee, with both parties mutually agreeing upon term and conditions, including the payment of a fee for the use of the work. This is known as a voluntary license. In other instances, Congress has determined certain conditions under which a work can be used and has set a fee by law (“statutory rate”). This is known as a compulsory license. The available licensing scheme will depend on which copyright the licensee is seeking to use (musical composition or sound recording) and how the licensee intends to use that work.

Voluntary Licenses: There are a number of different situations in which a license must be negotiated between parties. These situations include:

  • Reproduction and distribution: To reproduce and distribute a sound recording, a master recording license must be obtained from the copyright holder. To use the underlying musical composition, a compulsory mechanical license must be secured, as discussed below.
  • Reproduction in audiovisual works: If you want to use a sound recording in a visual work, such as a commercial or movie, a master recording license must be obtained from the copyright holder. To use the underlying musical composition, a separate synchronization license must be obtained from the copyright holder.
  • Public performance: If you would like publicly perform a work, you must secure a license for the musical composition, and if applicable, the sound recording. For larger music users, such as radio stations or restaurants, it is typical to secure a blanket license from a performance rights organizations (the major organizations being ASCAP, BMI, and SESAC). Performance rights organizations (PROs) enter into agreements with publishers to license out all of the publisher’s songs. Individuals or organizations who negotiate a blanket license with the PRO are permitted to publicly perform any song within the PRO’s collection. The fee for this use will be negotiated between the parties and will vary according to the scope of the use and the nature of the entity using the works.

As we discussed in part 1 of this series, you only need to secure permission to use a sound recording if the recording is being transmitted to the public through digital means. For digital audio transmissions that are interactive, such as Youtube, a voluntary license must be negotiated with the sound recording copyright owner for a master recording license. For digital audio transmissions that are non-interactive, such as Sirius XM or digital cable or satellite television services, a compulsory license is in place, as we will discuss below.

  • Print rights: To print sheet music of a musical composition, a license must first be negotiated between the parties. Print rights can cover both physical printing and digital printing, with digital print rights being nonexclusive.

Compulsory Licenses: There are a number of licenses that are compulsory, meaning that the copyright owner must issue a license to a person seeking to use the work. These licenses include:

  • Cable television rebroadcast: Local broadcasting stations must allow cable companies to re-transmit their signals, for a set fee.
  • Public broadcasting system: Copyright owners must license the use of their published nondramatic musical works and published pictorial, graphic, and sculptural works in connection with noncommercial broadcasting.
  • Digital performance of records: Copyright owners of sound recordings must allow performance of their recording if used in a noninteractive digital audio transmission. The four categories of works generally covered by this compulsory license are: eligible nonsubscription services, preexisting subscription services, new subscription services, and preexisting satellite digital audio radio services. Like the PROs mentioned above for public performance rights of musical compositions, SoundExchange is the organization that handles licensing for digital audio transmissions that fall within one of the four categories listed above.
  • Phonorecords and digital downloads of nondramatic musical compositions: Once a non-dramatic musical work has been recorded and released to the public through a phonorecord (e.g. CD, audio DVD, MP3, record), the owner of the musical composition copyright must license use of the composition to anyone who wants to use it in a phonorecord, so long as the licensee does not change the basic melody or fundamental character of the song. This is known as a compulsory mechanical license. Many publishers handle their mechanical licenses through the Harry Fox Agency. In the event that the original work did not meet the requirements for a compulsory mechanical license (e.g. the work was not released to the public, the work was a dramatic musical work, etc.), a voluntary license must be negotiated with the copyright owner.

The compulsory mechanical license is tied to the statutory rate, meaning there is a minimum fee set by law that the licensee must pay for use of the work. Currently, the statutory rate for songs up to 5 minutes in length is 9.1¢ per song per unit. For songs that are greater than 5 minutes in length, the statutory rate is 1.75¢ per minute of playing time, or a fraction thereof, per unit. If, for example you wanted to make a 3-minute recording of a copyright protected song, and distribute 500 copies of your cover, you would need to pay $45.50 for the original composition ($0.091 X 500). If you wanted to make a recording that is 7 minutes and 15 seconds long, with 500 copies distributed, your rate would equal  $70 ($0.0175 X 8= $0.14. $0.14 X 500= $70).

The new media rights of ringtones and permanent digital download are also subject to a compulsory mechanical license. While permanent digital downloads follow the same statutory rates as physical products (9.1¢ or 1.75¢ per minute of playing time or a fraction thereof), ringtones follow a different rate. Non-derivative uses for ringtones are set at 24¢.

This blog has laid out some of the possible revenue streams for musical compositions and sound recordings by mentioning the different situations in which a license must be secured for use of the copyrighted work. This concludes our 4-part series on music copyright.

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Maria Scheid is a graduate of The Ohio State University Moritz College of Law and former legal intern at the Copyright Resources Center at OSU Libraries

Posted in Copyright Education, Music Copyright | Tagged , |

Termination of transfer for music copyright

This is the third of a 4-part series on issues in music copyright. Part 3 will provide an overview of the termination of transfer rights for musical compositions and sound recordings.

We mentioned termination of transfer briefly in part 2 of our series on duration to explain how the duration of a grant of a copyrighted work may be affected under current copyright law. Termination of transfer allows an author who has transferred their copyrights to a third party to reclaim those copyrights after a certain amount of time. It allows the author of the work a second chance to appreciate the worth of their work. For musicians, this is particularly important, because many artists transfer their rights in their musical compositions to publishers, and transfer their rights in sound recordings to their record label. Allowing the artist to terminate these grants, means the artist may still be able to capitalize on a successful song.

Termination of transfer is a right that exists for all copyrighted works (both musical compositions and sound recordings), and cannot be waived or contracted away by the author. There are, however, a few exceptions. One big exception is that the termination of transfer right does not exist for works-made-for-hire. Another big exception exists for derivative works; if you granted another the right to create a derivative work based on your original work, the grantee may continue to utilize the derivative work if it was prepared under the authority of the original grant before it was terminated. It is also important to keep in mind that these termination rights are only applicable to U.S. rights, not any grants made in foreign territories.

In addition, the scope of the right will be affected by the time in which the grant was made: one section of the Copyright Act covers works made on or after 1/1/1978, another section of the Act covers works made before 1/1/1978.

For any work in which the author has granted a transfer or license of copyright on or after 1/1/1978 (excluding grants made in the author’s will), § 203 allows the author (or the author’s heirs and assignees who are entitled to exercise a total of more than ½ of the author’s interest) to terminate the grant within a 5-year period beginning 35 years after the grant was executed. If the grant of rights included the right to publish the work, termination can begin at the end of 35 years from the date of publication or 40 years from the date of the grant, whichever term ends earlier.

  • Example: Author A enters into a publishing agreement with Publishing Company B on January 1, 1980, granting his copyright in his musical composition.
    • The earliest Author A (or eligible heirs/assignees) may terminate that grant is January 1, 2015.
    • The latest Author A (or eligible heirs/assignees) could terminate the grant is January 1, 2020.

Termination requires filing an advance notice of intent to terminate. This notice must comply with all statutory requirements set out in § 203, including timely filing requirements. Notice cannot be served more than 10 years or less than 2 years to the effective termination date.

  • Example: Continuing from our example above, Author A may serve notice:
    • No earlier than January 1, 2005 (10 years prior to the earliest possible termination date), and
    • No later than January 1, 2018 (2 years prior to the latest possible termination date).

A similar termination of transfer exists for grants of rights made by an author or persons other than the author before 1/1/1978. Section 304(c) lays out all requirements, and permits an effective termination during a 5 year period starting 56 years after the copyright was first secured, or beginning on 1/1/1978, whichever is later.

Like the requirement under § 203, notice of intent to termination is required. Notice must comply with all statutory requirements of § 304 and cannot be served more than 10 years or less than 2 years to the effective termination date.

  • Example: Author A enters into a publishing agreement with Publishing Company B on January 1, 1957, granting his copyright in his musical composition.
    • The earliest Author A (or eligible heirs/assignees) may terminate that grant is January 1, 2013.
    • The latest Author A (or eligible heirs/assignees) could terminate the grant is January 1, 2018.
    • Notice must be served no earlier than January 1, 2003, and no later that January 1, 2016.

The Sonny Bono Copyright Extension Act adds another element to this termination calculation. The Sonny Bono Act extended copyright protection for an additional 20 years. As a trade-off for this extension, authors have a second chance to exercise their termination rights for pre-1978 works if they missed their first opportunity. Under this Act if your pre-1978 work is still in it’s renewal term on October 27, 1998 (meaning that the work was copyrighted on or before 1/1/1923 and on or before October 26, 1939), the work can be recaptured in a 5-year period beginning 75 years after the copyright was secured.

  • Example: Author A enters into a publishing agreement with Publishing Company B on January 1, 1935, granting his copyright in his musical composition. Author A could have terminated the grant as early as January 1, 1991 (56 years after the original copyright date), but failed to do so. Author A has another chance to terminate beginning January 1, 2010 and ending January 1, 2015 (5 year period beginning 75 years after the original date of copyright).

This blog has provided an overview of the termination rights for musical compositions and sound recordings. In the final part of our series we will discuss the different licensing schemes for music copyrights.

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Maria Scheid is a graduate of The Ohio State University Moritz College of Law and former legal intern at the Copyright Resources Center at OSU Libraries

Posted in Copyright Education, Music Copyright | Tagged , |

Music copyright series returns in March

While many copyright topics can seem complicated, tangled, or downright confusing, music copyright might take the cake. Fear not! The Copyright Resources Center is here to help.

We are continuing our four-part series on music and copyright in the month of March. We previously published two posts introducing the various copyrights involved in music copyright and the length of copyright protection for musical compositions and sound recordings. The final two installments will discuss termination of transfer and licensing opportunities for music copyrights.

Read all posts in our music copyright series:

Part 1. What is Music Copyright?

Part 2. Copyright Duration For Musical Compositions And Sound Recordings

Coming soon!

Part 3. Termination of Transfer for Music Copyright

Part 4. Licensing Opportunities for Music Copyright

PS – While we’re on the subject of music… Did you know that March is Music in Our Schools Month? This month-long celebration is intended to raise awareness of the importance of music education for all children.

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By Jessica Meindertsma, Rights Management Specialist at The Ohio State University Libraries’ Copyright Resources Center

Posted in Copyright Education, Music Copyright | Tagged |

Fair use toolkit for librarians

Fair use is an important component to U.S. copyright law that empowers individuals to make use of copyrighted materials without asking or paying for permission for certain socially useful purposes, such as scholarship, research, and education. It should come as no surprise that libraries, being heavily involved in such endeavors, often rely on fair use to accomplish many day-to-day activities in support of teaching, learning, and research.

Unfortunately, misunderstandings and uncertainty about copyright and fair use may prompt librarians and administrators to avoid some projects or limit services that could otherwise qualify as fair use. Librarians are not the only ones to find themselves in this predicament, but the good news is that community-specific best practices help dispel fair use myths and provide guidance within a particular discipline.

The Association of Research Libraries (ARL), in partnership with the Center for Social Media and the Washington College of Law at American University, has developed several resources to help librarians and library administrators understand and apply fair use as it pertains to academic and research libraries:

Lastly, no fair use toolkit is complete without a checklist to help analyze the four factors of fair use:

 

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By Jessica Meindertsma, Rights Management Specialist at The Ohio State University Libraries’ Copyright Resources Center

Posted in Copyright Education, Fair Use | Tagged |

Fair use best practices to the rescue!

Most statutory copyright exceptions tend to be very narrow in scope and limited by explicit requirements or restrictions. In comparison, fair use is quite broad; the statute cites just four general factors to consider when evaluating fair use. Such flexibility permits the use of copyrighted materials in many contexts and for many purposes, but this lack of specificity can also lead to confusion over what may actually qualify as fair use. In fact, the only way to definitively establish fair use is to receive a decision from a judge!

To the detriment of creators and consumers alike, doubts about fair use and anxiety over the penalties for infringement may prevent creators from pursuing educational, creative, and socially useful projects that could potentially constitute fair use. For instance, a recent study on copyright, permissions, and fair use in the arts reports that confusion and apprehension regarding these issues led to self-censorship and abandoned projects for one third of visual artists and visual arts professionals (e.g. editors, publishers, and historians).

Flying superhero

Superhero by Moriah Rich
from The Noun Project

Fair use best practices have been established to address this confusion and to help establish acceptable industry customs. Community-specific best practices help creators feel more confident in their rights and justify the reliance on fair use for a variety of projects. Besides providing guidance for practitioners, community-specific fair use codes may influence court decisions by contextualizing individual fair use cases within industry common practice.

Emerging community-driven best practices recognize the short comings of arbitrary and impractical directives such as the 1976 Classroom Guidelines* and focus on articulating moderate, community accepted practices rather than establishing a maximum or minimum of fair use. Best practice codes help users avoid fair use fantasies and intimidating misinformation when developed in partnership with reliable sources, such as the American University College of Law and Center for Media & Social Impact.

American University regularly partners with communities to devise best practice codes appropriate for those industries. The guidelines produced thus far include:

*Don’t be fooled: The 1976 Classroom Guidelines do not have the force of law!

Read more:

Power to the People: Five Reasons Fair Use Best Practices Are Changing the World – ARL Policy Notes

Timid About Fair Use? – Inside Higher Ed

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By Jessica Meindertsma, Rights Management Specialist at The Ohio State University Libraries’ Copyright Resources Center

Posted in Copyright Education, Fair Use | Tagged , |

Fair Use 101: Why do we need fair use?

Scale balancing copyright symbol and mortarboard hat,

© 2008 Michael Brewer & ALA Office of Information Technology Policy, CC BY-NC-SA 3.0

The ultimate purpose of copyright is not solely to protect creators’ rights. That may sound like a radical statement, but protecting individuals’ rights is merely the means to an end. Copyright is actually intended to promote progress, creativity, and innovation for the benefit of society as a whole.

Ideally, everyone prospers from new works which generate culture, provoke discourse, commentary, or criticism, and inspire other creators to produce something new in turn. Copyright encourages individuals and businesses to create art, literature, music and other original expressions by granting authors the exclusive rights to their work so that they may have an opportunity to profit from their endeavors. Once creators have had a chance to benefit from their work, copyright expires and others may use an author’s work without restriction, but this doesn’t happen for a long time—70 years after the death of the author!

Particularly given the lengthy duration of copyright protection, fair use provides an important exception to copyright that helps to balance the interests of creators and the public good. Without fair use and other copyright exceptions, it would become prohibitively time consuming and expensive to conduct everyday activities like reporting the news or teaching a class because journalists, teachers, and others would need to seek permission every time they wanted to use copyrighted materials. Additionally, rightsholders can (and do!) refuse to grant permission for uses they see as undesirable or damaging, such as critical reviews. Fair use provides an important safeguard against censorship via copyright.

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By Jessica Meindertsma, Rights Management Specialist at The Ohio State University Libraries’ Copyright Resources Center

Posted in Copyright Education, Fair Use | Tagged , |

Fair Use 101: What is fair use?

The fair use of a copyrighted work… for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.” - Title 17, U.S. Code, Section 107

Fair use is an exception to copyright that permits the use of copyrighted materials for certain purposes such as criticism, comment, news reporting, teaching, scholarship, or research. Fair use is not limited to just these situations and may be found in a wide variety of circumstances. In fact, it is the most broad and flexible of the statutory exemptions, with none of the specific limitations and restrictions usually attached to copyright exceptions.

Since the fair use doctrine can be applied in almost any context, how can you decide whether an intended use may qualify as fair use? Fair use must be evaluated on a case-by-case basis, using a fact specific analysis of four factors for each use of copyrighted material:

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

The four factors weigh the characteristics in favor and opposing fair use for each use of copyrighted material. All four factors must be considered holistically: no one factor is more important than the others, while a mechanical tallying of pros and cons is also insufficient to determine fair use. In fact, going to court and receiving a decision from a judge is the only way to find out for sure if a use is fair.

Don’t let this deter you from relying on fair use when it makes sense. Some instances of fair use are more obvious than others; if you aren’t sure that an intended use is fair, try to adjust how you are using the copyrighted materials in order to address the weak areas of your fair use analysis. For instance, use less of the work or restrict the audience to improve your standing on factors three and four. Several tools are available to help you evaluate fair use: an interactive tool from OSU’s Health Sciences Library and a printable checklist from Columbia University are two of our favorites.

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By Jessica Meindertsma, Rights Management Specialist at the Copyright Resources Center, The Ohio State University Libraries

Posted in Copyright Education, Fair Use | Tagged |

February fair use series

We are featuring fair use in February! Follow this blog and our Twitter (@OSU Copyright) for fair use facts and fundamentals throughout the month of February. We’ll be digging into what fair use really is, highlighting fair use best practices, debunking fair use myths, and sharing our favorite fair use examples. Why not join in the fair use fun and share your questions or experiences with fair use?

If you’re local, join us for the final event – a fair use workshop at The Ohio State University Libraries on February 27 from 1:30-3:00p.m. Whether you know the four factors like the back of your hand or this is the first time you’ve heard of fair use, we invite you to participate. Please sign up for the workshop by emailing LibCopyright(at)osu.edu no later than Thursday, February 20. We hope to see you there!

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By Jessica Meindertsma, Rights Management Specialist at the Copyright Resources Center, The Ohio State University Libraries

Posted in Copyright Education, Fair Use | Tagged |

Calling all copyright activists

Copyright Week is here! If you think fair use, the public domain, the right of first sale, and open access are the bee’s knees, congratulations – you’re on your way to the rank of copyright activist. Join up with activist veteran EFF for a week of discussion on key principles to guide copyright policy.

Not sure why you should care? Keep your ear to the ground this week and learn a thing or two about current copyright issues. You just might be a copyright convert by week’s end. For starters:

It’s no longer the case that copyright is only a concern if you run the kind of company that has its own theme parks. Instead, copyright policy can have an effect on any user posting to her favorite sites, sharing videos she’s captured or photos she’s taken. It can affect your basic freedom to tinker, make, and repair your stuff. – Copyright Week: Taking Copyright Back by the Electronic Frontier Foundation (EFF)

So if you have something to say, ponder, or posit, dust off your soapbox and speak out for copyright on your choice of social media (hashtag #copyrightweek) or engage in spirited discussion with whoever’s handy about the future of copyright (hint: classmates, coworkers, friends, neighbors, and telemarketers are all worthy targets).

You won’t be alone. Look for our tweets (@OSUCopyright) all week long on a range of copyright issues– topics for each day are listed below. Happy Copyright Week!

Copyright Week: January 13-18

Monday Jan 13 – Transparency
Copyright policy must be set through a participatory, democratic and transparent process. It should never be decided through back room deals or secret international agreements.

Tuesday Jan 14 - Building and Defending a Robust Public Domain
The public domain is our cultural commons and a public trust. Copyright policy should seek to promote, and never diminish, this crucial resource.

Wednesday Jan 15 - Open Access
The results of publicly funded research should be made freely available to the public online, to be fully used by anyone, anywhere, anytime.

Thursday Jan 16 – You Bought it, You Own It
Copyright policy should foster the freedom to truly own your stuff: to tinker with it, repair it, reuse it, recycle it, read or watch or launch it on any device, lend it, and then give it away (or re-sell it) when you’re done.

Friday Jan 17 – Fair Use Rights
For copyright to achieve its purpose of encouraging creativity and innovation, it must preserve and promote ample breathing space for unexpected and innovative uses.

Saturday Jan 18 – Getting Copyright Right
A free and open Internet is essential infrastructure, fostering speech, activism, new creativity and new business models for artists, authors, musicians and other creators. It must never be sacrificed in the name of copyright enforcement.

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By Jessica Meindertsma, Rights Management Specialist at the Copyright Resources Center, The Ohio State University Libraries

Posted in General | Tagged , |

Public Domain Day: Another reason to celebrate the New Year

For many individuals, a new year represents a fresh start. January 1st also signifies a new beginning for numerous creative and scholarly works around the world. Public Domain Day commemorates the occasion as copyright expires for a new batch of works and ushers them into the public domain. The Tale of Little Pig Robinson by beloved children’s author Beatrix Potter is just one of the items entering the public domain in 2014 for many countries.

Release some of your own works from copyright in honor of Public Domain Day

If you have ever taken a photo, written a story, or recorded a video you hold the copyright to that work.

To dedicate a work to the public domain, you may apply the Creative Commons CC0 license to waive all copyrights.

Images may also be uploaded to Wikimedia Commons under a public domain license.

If you hold the copyright to a work archived by HathiTrust, you may grant permission to make the full text publicly available and/or dedicate the work to the public domain.

This is indeed cause for celebration. Once a work enters the public domain, anyone may freely copy, distribute, adapt, remix, translate or otherwise use the material without permission or other limitations. The annual influx of public domain material results in a trove of restriction-free source material for artists, writers, musicians, and other creators. Jane Austen’s novels, for example, are all in the public domain and have been adapted numerous times for film and television.

‘Public domain’ may be a familiar term, but misconceptions abound regarding its true meaning. For instance, works that are widely available to the public, such as images, videos, and text on the Web, are not necessarily also in the public domain.

In the United States, copyright protection extends instantly and automatically to new works created since March 1, 1989. In order to qualify for copyright, a work must require at least a minimum amount of creativity to produce and it needs to exist in some tangible format (for example: written down, coded into HTML, saved to a hard drive, or sculpted in clay). Therefore, most material on the Web is actually protected by copyright whether or not a copyright notice is present.

The public domain actually consists of items that either were never covered by copyright law or their copyright protection has expired. For example, most works created by employees of the U.S. federal government in the scope of their employment enter the public domain immediately. Those items initially protected by copyright enter the public domain once the copyright term expires.

Copyright duration varies from country to country, so works will not enter the public domain at the same time for everyone. For example, Canada has a copyright term of the author’s lifetime plus 50 years, while many European countries have a copyright term of the author’s lifetime plus 70 years.

In the United States, the Copyright Term Extension Act of 1988 increased copyright duration to the author’s lifetime plus 70 years, after which the work enters the public domain. This legislation also extended copyright terms for many earlier works, with the result that no published works will enter the public domain in the United States until 2019.

Creators may also voluntarily remove copyright at any time by dedicating a work to the public domain. Determining the copyright term for works published under earlier versions of U.S. law can be complicated, but Peter Hirtle’s chart “Copyright Term and the Public Domain in the United States” can help resolve many questions.

Find works in the public domain

Many sites collect public domain material. Here are a few places you can find items in the public domain (note: some also contain copyrighted materials).

HathiTrust

Internet Archive

Project Gutenberg

Wikimedia Commons

Public Domain Music

For a more comprehensive list, please see Columbia University’s list of public domain resources.

Although copyright law in the United States has changed over time, the public domain remains indispensable to accomplishing the stated purpose of copyright: to promote the progress of science and the arts. Copyright law grants creators exclusive rights for a limited time to control how their work is used and distributed. While this protection encourages creativity and innovation by providing an opportunity for authors to profit from their work, the fact that copyright eventually expires is equally important to creative culture.

Creators from all disciplines take inspiration from existing works and a continuously replenished public domain provides a rich, unfettered source of materials to draw upon. Residents of the United States can look forward to 2019 when the annual cycle of works entering the public domain will resume. Until then, we may only celebrate vicariously the many treasures joining the public domain on January 1st for the rest of the world.

Along with the Beatrix Potter story mentioned earlier, the public domain in various countries welcomes creations from other authors, artists, musicians, and notable figures such as George Washington Carver, Sophie Taeuber-Arp, Fats Waller, and Nikola Tesla in 2014.

Visit these sites around the Web for more coverage of Public Domain Day 2014 and works entering the public domain:

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By Jessica Meindertsma, Rights Management Specialist at the Copyright Resources Center, The Ohio State University Libraries

Posted in Copyright Education | Tagged |