Tag: music copyright

Exploring Challenges and Opportunities Surrounding Our Collections of Recorded Student Musical Performances

The OSU Music and Dance Library has a sizable collection of recorded student musical performances encompassing individual students’ recitals and ensemble performances. The collection exists on a variety of media, some of which is deteriorating, is anticipated to deteriorate within the foreseeable future or is in an obsolete format . The Music and Dance Library is working with the Copyright Resources Center to explore options for preserving these artifacts of scholarly and creative activities at The Ohio State University and making them available for research and education.

As part of our initial information gathering, we collaborated with Alan Green and Sean Ferguson at the Music and Dance Library to craft an informal survey that would be sent their colleagues at other institutions on managing rights issues for similar collections. Based on the results of this survey, we found that other institutions are facing the same questions and conundrums and many survey participants indicated that they are also in the early or exploratory stages of developing or implementing plans for managing their collections of recorded student musical performances. While this appears to be an area of interest for many libraries, it will require further development and study within the profession before significant trends and community practices begin to emerge.  Though we are still gathering information, we have a few initial thoughts to share.

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Copyright in the Libraries: Music and Dance Library

Photo of Alan Green

Alan Green,
Head Librarian for Music and Dance and
Adjunct Professor at the School of Music

Copyright touches many library services because we collect, share and loan original works fixed in a wide variety of tangible media. The Copyright Resources Center conducted a series of informational interviews with faculty and staff from various areas of The Ohio State University Libraries to discuss the ways in which they engage with copyright issues. This blog series documents those conversations, and highlights how copyright law helps to shape services provided by the Libraries. See all available posts in the series here.

The Music and Dance Library at The Ohio State University houses a diverse collection of materials in a wide variety of media: compact disc and tape recordings, books, sheet music, DVDs, VHS, serials, vinyl records, and more. I met with Alan Green, Head Librarian for Music and Dance and Adjunct Professor at the School of Music, and Sean Ferguson, an Assistant Librarian at the Music and Dance Library, to discuss the ways that copyright affects their services, collections, and patrons.

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World IP Day 2015 Celebrates Music

On April 26, 1970, the Convention Establishing World Intellectual Property Organization (WIPO Convention) entered into force. The event is celebrated annually through the World Intellectual Property Day. The theme for this year’s World IP Day is “Get up, stand up. For music.”

Music plays a critical role in our lives—it is an essential defining element of our culture and society.  And through the changing of technology, consumer preferences, and industry standards, the demand for music has remained.  This past year has seen a lot of activity surrounding music creators and their rights under copyright law. Parties on all sides have questioned our current systems and laws, seeking changes designed to fairly support the value that musicians contribute to our lives and adequately encourage society’s access to and use of music.

Keeping with the theme of this year’s World IP Day 2015, we are highlighting a few out of many interesting and important recent developments and the resulting impact on copyright owners of musical compositions and sound recordings.

 

The Fair Play, Fair Pay Act of 2015

While musical compositions have long been protected under federal copyright, the inclusion of sound recordings under federal copyright law has been a relatively recent development (sound recordings fixed before February 15, 1972 are still governed by state law). In 1995, through the Digital Performance Right in Sound Recordings Act (DPRSRA), Congress provided copyright owners an exclusive public performance right in their sound recordings, but limited the exclusive right to public performances of sound recordings via digital audio transmission. This limitation means satellite and music subscription services need to pay a licensing fee to perform a sound recording, but terrestrial (AM/FM) radio stations do not. Why the exception for traditional over-the-air broadcasts? In short, Congress didn’t believe radio and television broadcasters posed a threat to copyright owners. Terrestrial radio stations, it has been argued, enjoy a symbiotic relationship with copyright owners. Terrestrial stations play music to increase their listenership and increase advertising revenue and in return create exposure for artists, promoting record and other sales for the sound recording owner.

Introduced in Congress earlier this month, the Fair Play, Fair Pay Act of 2015, H.R. 1733, 114th Cong. (2015) would require terrestrial broadcasters to pay royalties for the public performance of sound recordings, a requirement that is currently only applicable to services that perform a song via digital audio transmission. This public performance right would also extend to sound recordings fixed before February 15, 1972.  Special protections exist for small broadcasters, public broadcasters, college radio, noncommercial radio, and religious services. The bill also includes pieces from the Allocation for Music Producers (AMP) Act, discussed below.

Why it matters: Under the current law, owners of a musical composition (songwriters or music publishers) are compensated if their song is played on terrestrial radio but owners of the sound recording (performing artist or record label) are not. If that same song is transmitted through a service like Pandora, both copyright owners will be compensated. If enacted, the Fair Play, Fair Pay Act of 2015 would result in terrestrial broadcasters operating under the same system that newer digital broadcasters are required to operate under. Overall, this would create more harmonization in copyright law by bringing platform parity to radio and would establish an additional revenue stream for both current artists and older artists.

 

Local Radio Freedom Act

The Local Radio Freedom Act, a resolution reintroduced into the House and Senate earlier this year, declares that “Congress should not impose any new performance fee, tax, royalty, or other charge” to terrestrial broadcasters for the public performance of sound recordings. The National Association of Broadcasters has backed the resolution, which does not carry the force of law. The resolution highlights the “mutually beneficial relationship between local radio and the recording industry,” in which radio stations have provided publicity and promotion to artists, which has benefitted the careers of many performers. The resolution also cautions the economic hardship local radio stations and small businesses will face at the imposition of any new performance fee.

Why it matters: While artists have thrown a lot of support behind the Fair Play, Fair Pay Act (discussed above), broadcasters believe the Local Radio Freedom Act provides a better solution. The Local Radio Freedom Act, is non-binding, but functions to express the sentiment of Congress. This resolution would preserve the status quo for public performance of sound recordings. There are currently 165 co-sponsors in the House and 12 co-sponsors in the Senate.

 

Allocation for Music Producers (AMP) Act

Traditionally, record producers have received compensation for their work through the negotiation of a flat fee for their services and/or points (typically 3-4% of the wholesale price of an album). The Allocation for Music Producers (AMP) Act, H.R. 1457, 114th Cong. (2015), introduced in March of this year, would amend copyright law to provide a statutory right for producers, sound engineers, or mixers involved in the creative process of creating the sound recording to receive royalties for the digital transmission of the work.

Current law requires that royalties paid for the public performance of a sound recording by digital audio transmission be split between featured artists (45%), non-featured artists (5%), and sound recording copyright owners (50%). A featured artist may provide a Letter of Direction to SoundExchange, the entity responsible for collecting and distributing such royalties, requesting that a portion of their royalties be paid to the producer. Under the AMP Act, this informal process would be recognized through a statutory amendment.

In addition, the bill creates a new process for setting aside royalties for sound recordings fixed before November 1, 1995. In the absence of a Letter of Direction, SoundExchange may set aside 2% of featured artist royalties to be paid to the producer, mixer, or sound engineer of the relevant sound recording, so long as the artist does not object within a given period of time.

Why it matters: Producers, sound engineers, and mixers play an important role in the creative development of sound recordings. The AMP Acts acknowledges the importance of these individuals in the overall creative process and seeks to establish a permanent procedure by which these professionals can fairly be compensated for their contributions.

 

Songwriter Equity Act

Re-introduced into both houses on March 4, 2015, the Songwriter Equity Act of 2015 (SEA) would amend Sections 114 and 115 of the Copyright Act to allow the calculation of statutory royalty rates for musical compositions based on fair market value.

The SEA would change the way royalties are calculated for the reproduction of musical compositions. There is currently a compulsory mechanical license for the reproduction of musical compositions. The initial rate set by Congress in 1909 was 2¢ per song. In 2015, it is 9.1¢ per song. The SEA would now allow Copyright Royalty Judges to establish rates that “most clearly represent the rates and terms that would have been negotiated in the marketplace between a willing buyer and a willing seller.” In addition, Judges may now consider the royalty rates set for the public performance of sound recordings in their determination of rates for the public performance of musical compositions.

Why it matters: The intent of this bill, as with the other bills we have discussed, is to even the playing field. By adopting rates that reflect free market conditions, songwriters may receive fair compensation for their works.

 

Calculation of digital royalties for pre-digital artists

It is difficult to predict how technology will change in the future, as a result, older recording agreements are silent on how to handle payments for digital downloads. The major record labels have historically treated downloads as equivalent to physical sales (meaning artists get 12-20% of net receipt of sales) but artists have argued that digital downloads are more appropriately treated as licenses (meaning the artist would receive 50% of net receipts).

The approach taken by major labels has resulted in major class action lawsuits against Sony, Warner, and Universal. On April 14, 2015, Universal submitted a preliminary settlement of $11.5 million, to be paid to artists signed with UMG or Capitol Records between 1965 and 2004. Universal does not, however, admit wrongdoing in the payment of royalties. Going forward, an increase of 10% has been applied to the royalty rate for digital downloads. Settlements have already been reached in the Sony and Warner Music Group lawsuits.

Why it matters: Compensation. There is a substantial difference in royalty rates between traditional physical sales and licenses. In cases where digital downloads have not been anticipated, it has been up to the court to determine what is just based on the technology of today.

As you can see from just these examples, this past year has been full of activity surrounding music and copyright issues. Following calls for comprehensive copyright reform and talks of a “music omnibus bill” to overhaul the music licensing system, we can expect this important dialogue to continue. Only time will tell how some of these issues will ultimately be resolved and the impact any changes will have on artists, consumers, and facilitators of music.

Interested in learning more about music copyright? Be sure to check out our 4-part series on music copyright: What is music copyright?, Copyright duration for musical compositions and sound recordings, Termination of transfer for music copyright, and Licensing opportunities for music copyright.

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By Maria Scheid, Rights Management Specialist at the Copyright Resources Center, The Ohio State University Libraries

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

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 after 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

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

Copyright duration for musical compositions and sound recordings

This is the second of a 4-part series on issues in music copyright. Part 2 will provide an overview of the duration for musical composition and sound recording copyrights.

As we discussed in part 1 of our series, music copyright is broken down between musical compositions and sound recordings. It is important to keep this distinction in mind when considering the duration of either of these copyright terms, because different sets of laws will govern the duration of the copyright depending on the type of work being considered (sound recording or musical composition) and when that work was created.

Musical Compositions: Copyright duration for fixed musical works, including original compositions and original arrangements or versions of earlier works, follows the same termination timeline as other literary works. Duration for the musical composition copyright will depend on a number of factors including the time in which the work was created (the time in which the work was fixed), the time in which it was published, who created the work, and whether proper renewal and registration was filed. The following tables explain how copyright duration varies:

Created on or after 1/1/1978

Duration

One author Life of the author + 70 years
Joint authorship Life of the last surviving author + 70 years
Work-made-for-hire; anonymous works; pseudonymous works 95 years from publication or 120 years from fixation, whichever is shorter. If an anonymous author is later revealed, life of the author + 70 years.

 

Published before 1/1/1978

Duration

Works published before 1/1/1923 In the public domain
Works published on or after 1/1/1923 and before 1/1/1964 + proper renewal (including registration) filed 95 years from publication
Works published on or after 1/1/1923 and before 1/1/1964 + proper renewal (including registration) NOT filed In the public domain
Works published on or after 1/1/1964 and before 1/1/1978 95 years from publication

 

Created but not published before 1/1/1978

Duration

All works In no case does copyright expire before 12/31/2002.
Not published on or before 1/1/1978 and on or after 12/31/2002. Use same rules for works created on or after 1/1/1978 (from chart 1 above), but in no case will copyright expire before 12/31/2002.
Meanwhile published on or after 1/1/1978 and on or before 12/31/2002. Use same rules for works created on or after 1/1/1978 (from chart 1 above), but in no case will copyright expire before 12/31/2047.

Prior iterations of U.S. copyright law required published works to contain a notice including either © or ℗ (for sound recordings), the year of first publication, and the name of the copyright owner.  Works created on or after 3/1/1989 no longer need to contain a notice, but earlier works are still bound by the requirement. To see how compliance and noncompliance with notice requirement affect copyright duration, see Peter B. Hirtle’s Public Domain chart.

Sound Recordings: Sound recordings were not granted federal copyright protection until the passage of the Sound Recording Act of 1971. As a result, the law governing the duration of a sound recording copyright will vary depending on the time in which the work was created.

For works created on or after 2/15/1972, copyright duration mirrors the general rules that we see above for musical compositions created on of after 1/1/1978.

Created on or after 2/15/1972

Duration

One author Life of the author + 70 years
Joint authorship Life of the last surviving author + 70 years
Work-made-for-hire; anonymous works; pseudonymous works 95 years from publication or 120 years from fixation, whichever is shorter.If an anonymous author is later revealed, life of the author + 70 years.

Like musical compositions, sound recordings made on or after 2/15/1972 must also comply with proper renewal, registration, and notice requirements.

Works published on or after 2/15/1972

Duration

Works published on or after 2/15/1972 and before 1/1/1978 + proper notice filed 95 years from publication
Works published on or after 2/15/1972 and before 1/1/1978 + proper notice NOT filed In the public domain
Works published on or after 1/1/1978 and before 3/1/1989 + proper notice NOT filed + subsequent registration NOT filed In the public domain
Works published on or after 1/1/1978 and before 3/1/1989 + proper notice filed Use same rules for works created on or after 1/1/1978 (from chart 1 above).
Works published on or after 3/1/1989 Use same rules for works created on or after 1/1/1978 (from chart 1 above).

Works created prior to 2/15/1972, will be governed by state law. Protection typically comes from state statutes, state copyright common law, misappropriation, or unfair competition.

Traditionally, common law protection ceases at the time of the publication of the work, though state law protection may still exist under a separate property right or theory of unfair competition. Following the 1976 Copyright Act, “publication” of sound recordings under federal law included the public distribution or sale of those phonorecords, but not the public performance or display of the work. The Act, however, only applies to those sound recordings made on or after 2/15/1972.  As to sound recordings made prior to 2/15/1972, states may define what is required for publication under their own law, and may specify whether publication of pre-1972 sound recordings is required to cease state law protection.

Because copyright duration for sound recordings could be potentially indefinite under state law, Congress set the latest date for protection as 2/15/2067. After that point all sound recording created before 2/15/1972, if they have not done so already (California, for example, provides for exclusive ownership in a sound recording until 2/15/2047) will enter into the public domain.

*Termination of Transfer: It is also important to keep in mind that the duration of the grant of a copyright may be affected by the termination of transfer right provided in the Copyright Act. For more information on this right see part 3 of our series on music copyright in which we discuss how the termination of transfer right works.

This blog has provided an overview of the duration or music copyrights. In the next part of our series we will look closer at the termination of transfer right and how it may be used.

 

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

What is music copyright?

What is Music Copyright?

This is the first of a four-part series on issues in music copyright. Part one will provide a basic introduction to music copyright.

Musical Composition v. Sound Recording:

When you hear a song on the radio you are hearing two separate copyrights: one for the underlying musical composition and one for the sound recording. The distinction between these two is important, because even though they are both attached to one song, they are two separate works for copyright purposes and may be independently licensed or enforced. It is easier to understand this distinction if we look a little closer at what each copyright consists of:

  • A musical composition consists of music, including any accompanying words. The author of a musical composition is normally the composer of the work along with the lyricist (if the lyricist and composer are separate). A musical composition can be in the form of a notepad copy (such as sheet music) or in the form of a phonorecord (tape, CD, LP, etc.)
  • A sound recording (or master recording) results from the fixation of a series of musical, spoken, or other sounds. The author of the sound recording is typically the performer(s), the record producer, or both.

In many cases an artist will enter into a publishing agreement in which they will sign over all or part of their copyright in their compositions to a publisher in return for the administration of those compositions. As part of this administration, a publisher will seek out people who want to use the artist’s composition in their own works or performances, issue the necessary licenses, collect the money, and give the artist their agreed upon percentage. It is also common to see performers grant their copyright in their sound recordings to the record label they are recording under.

When an artist wants to release a cover song, they must get permission from the copyright holder of the musical composition. If, however, a recorded song is being used, the person using the song would potentially have to seek permission from two people: the person that has the copyright in the musical composition (usually the composer or publisher) and the person who holds the copyright in the sound recording (typically the performer, record label, or producer).

As an example, consider the popular song “Respect” made famous by Aretha Franklin. The song “Respect” was originally composed by Otis Redding and released in 1965. Two years later Aretha Franklin released her version of the song. Because Ms. Franklin was not composing a new song, but rather using Otis Redding’s composition, she needed to secure a license to use the underlying musical composition. Ms. Franklin, however, went into the studio and recorded her own version, so it was not necessary to secure a license for Mr. Redding’s sound recording.

Now consider a different situation: a film producer wants to use Ms. Franklin’s cover of “Respect” for his upcoming film. In this situation the producer would need to secure two licenses: one to use Ms. Franklin’s sound recording and another to use Mr. Redding’s musical composition. If the producer wanted to instead use Mr. Redding’s version in his film he would still need to secure two compositions: one for the musical composition and one for Mr. Redding’s sound recording.

Exclusive Rights:

Holding a copyright in a work means that you have exclusive rights to the use of that work. These exclusive rights include the rights of:

  1. Reproduction. The right of reproduction allows you to decide who may make a copy of your work, such as using it in a movie, using a sample, or publishing it as sheet music.
  2. Distribution. This right allows you to decide who may sell copies of your work.
  3. Derivative Works. This right allows you to decide who may make a new work based on your original work, such as the creation of a parody song.
  4. Public Display. This right is commonly seen in other copyrighted works such as art, but is not particularly applicable to music.
  5. Public Performance. This right controls the performance of your song on the radio, in clubs or restaurants, on television, or anywhere else where the performance would be deemed “public”.

While copyright holders for musical compositions and sound recordings enjoy the same exclusive rights in many respects, Congress imposed a limitation on the public performance rights of sound recordings through the Digital Performance Right and Sound Recording Act. Under this Act, the exclusive right of public performance exists for both the musical composition and the sound recording, but you only need to secure permission to use a sound recording if the recoding is being transmitted to the public through digital means. Depending on the nature of the digital audio transmission, that is whether it is interactive/non-interactive or subscription based, will determine the license that must be paid.

For public performance of musical compositions, licensing for public performance is usually handled through 3 main performance rights organizations (PRO): ASCAP, BMI, and SESAC. For sound recordings that are digitally transmitted, licensing may be handled by SoundExchange or with the sound recording copyright holder depending on the nature of the license needed.

This blog has provided a brief introduction to the different copyrights involved when we speak of music copyright. In the next part of our series we will discuss the duration of copyrights for both musical compositions and sound recordings.

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Maria Scheid was a legal intern at the Copyright Resources Center at OSU Libraries and is an alumna of The Ohio State University Moritz College of Law.