Music Copyright: Avoid Mistakes That Can Cost Big Bucks
COLUMN: People have been sharing my music ever since I released my first album in 2002. True, I offered free tracks from “Grin Groove” to DJs, producers and remixers, but those efforts garnered publicity that led to revenue. Plus, it introduced “The G-Man” to other musicians around the globe. This sharing was my choice. In other words, I was exercising my right as copyright holder of my intellectual property.
Today, the “sharing” of music has gotten totally out of hand. The firm called Big Champagne, which tracks online activity of music files, estimates that more than 90% of all file-shared music results in no compensation for the copyright holder. “File-sharing should really be called file-stealing,” states composer Richard Gibbs, who is so active in this area that he is calling for a massive day of protest (see related article “National Day of Sharing May Take Your Stuff,” MIN, Feb. 25, 2009).
The problem goes beyond out-and-out theft of music because even musicians and songwriters often do not know enough about their own rights in the area of licensing someone to use their music.
What follows is an attempt to touch on aspects of music copyright that are commonly misunderstood. Comments, observations, corrections, and opinions are all welcomed and encouraged.
Fiction: “You get to use eight bars of music without any trouble.”
Fact: A variation I’ve heard goes like this: “It’s all right if it’s less than 7 seconds.” Or 8, 6, 5, 3 seconds, etc. Sorry, but no. Unlawful use of music is unlawful use of music. You need to get permission in writing to use someone’s song. Also, keep in mind that permission may or may not involve a license payment of some kind. Another thing to remember is that there may be two copyrights involved: one on the music/lyrics and another on the recording itself.
Myth: “It’s okay if I slightly change the music.”
Truth: Define “slightly” and then we’ll talk. This gets tricky because infringement is somewhat in the ear of the beholder and somewhat in the analysis of the two pieces of music. People have won and lost copyright lawsuits over what seemed like the same song as well as what seemed like two different songs. “He’s So Fine” and “My Sweet Lord” are clearly musically the same, while “Handyman” and “Karma Chameleon” seem different enough to me, yet I believe both infringement lawsuits were successful. Note: Charles Cronin maintains the Copyright Infringement Project Web site at http://cip.law.ucla.edu where you can read about a wide variety of cases.
Fantasy: “I bought the music on a legal CD so I can use it the way I want.”
Reality: Sorry, but you have the right to play the music for yourself and friends but not in a public place (like in a store or on a Web site). You need two permissions to play anything from the CD in public: one from the holder of the music copyright and another from the holder of the CD copyright.
Fiction: “Dead composer, man, so no more copyright problems.”
Fact: Copyright for a music composition can last for up to 70 years from the death of the composer. (This statute has changed over the years, hence the “up to 70 years” part of that sentence.)
Myth: “I can use public domain music any way I want.”
Truth: There are compositions that are not subject to copyright: for example, works created prior to 1923 are in the public domain. There is a Web page about public domain maintained by Lolly Gasaway of the University of North Carolina that might be helpful (http://www.unc.edu/~unclng/public-d.htm). But remember, when someone records a public domain work, the recording itself has a copyright. So you legally cannot use the London Philharmonic Orchestra’s recording of a work by Bach or Beethoven. If you want to play and record a public domain tune yourself, go for it.
Fantasy: “It’s for a non-profit organization, so music can be used for free.”
Reality: There are some very well-defined exemptions for playing music for a non-profit event put on by veterans, county fairs, and so on. If you don’t follow all the rules of those exemptions, your non-profit project (Web, video, civic presentation, etc.) may result in people hearing music that wasn’t legally obtained and you could be legally accountable.
Fiction: “Playing a song in public only helps sell the music.”
Fact: While a record store can play songs without breaking copyright laws, that leads to a direct benefit for the copyright holder. Just playing someone’s song in public does not have that benefit and would therefore be against the law.
Myth: “Music is free when you find it on the Internet.”
Truth: You may have the opportunity to steal someone’s music via the Web. Just as they have the opportunity to take you to court for doing so. Penalties can be large: a court could make you pay the actual damages the copyright owner suffered plus all profits made from the infringement, or $30,000 in statutory damages, or up to five times that much if the infringement is deemed willful.
Fantasy: “I can use music because the Web site did not post a copyright notice.”
Reality: After March 1, 1989, it was no longer necessary to display the copyright notice to protect intellectual property. Think of it this way: you don’t pick up furniture in a shop or food from a grocer and think you can walk away without paying just because there was no sign saying stealing is illegal.
Fiction: “The concept of copyright is stifling the creation of new works.”
Fact: It’s actually the other way around. That fiction sometimes sounds intriguing when presented by out-of-touch college professors who have rarely created anything, but it is just an excuse for individuals and corporations to take the work of others and use it for their own purposes. Besides, when those same professors publish their anti-art views, you’ll see a copyright notice on their articles because they want to protect their intellectual property. Also take a look at “The Engine of Free Expression: Copyright on the Internet,” posted by the NMPA (National Music Publishers’ Association). http://www.nmpa.org/music101/copyrights.asp
Myth: “Copyright holds back invention and innovation.”
Truth: Without the protection of intellectual property, no one would ever do any of the following: compose music; write a song, book, play, poem or script; create a new software program; and so on. Instead of stifling creation, copyright encourages it and allows it to continue.
Fantasy: “A copyright is an old fashioned concept.”
Reality: It is in Article 1 of the U.S. Constitution, so if you also claim that democracy is an old fashioned concept, I suppose you’re correct. Literally, a copyright holder has five rights: the right to reproduce copies of the work; the right to create works based on the copyright (derivative works); the right to distribute copies of the work; the right to perform the work; and the right to display the work. In the years since the ratification of the Constitution have come certain “moral rights” and a digital performance right, and this helps demonstrate the validity of copyright since owners’ rights are being extended, not curtailed.
Fiction: “Copyrights don’t mean much anymore.”
Fact: From a songwriter’s standpoint, a copyright on a song is important because it helps protect your intellectual property against pirated use or any use without your permission. For every songwriter, a copyright is a bright and shiny thing of beauty (and could become a retirement fund or legacy for your children).
Myth: “Copyright forces people to conform to rigid rules and regulations.”
Truth: A copyright holder can decide what to do with his or her intellectual property, including giving it away. Just like I did with my music tracks on The G-Man “Grin Groove” album, any copyright holder can waive the right to control the use of their property under whatever set of circumstances seems appropriate. Again, it’s the copyright owner who has the right to determine how their work is performed, reproduced, displayed or distributed.
Fantasy: “People who make a big deal about copyright already have enough money.”
Reality: Every time someone violates copyright law, a composer is having his royalties stolen. That composer may be attempting to live off of royalty checks that don’t add up to minimum wage. Not that the total income of a writer is the point, but what if a successful composer transfers one song copyright to a niece or nephew as a college graduation gift? That song could now be representing all the income for someone who’s looking for a job while just starting a family.
Fiction: “I have the right of ‘fair use’ so I can’t be prosecuted.”
Fact: Fair use is limited to using materials in news reporting, commentary, education, parody and research. Usually, it involves a brief excerpt and is always attributed to the author or copyright holder. Outside of that, you can be prosecuted.
Myth: “I can do what I want with someone’s song because I have a compulsory license.”
Truth: As soon as a song has been distributed publicly, anyone can obtain a license to record (“cover”) the song. It can be obtained directly from the copyright holder (the songwriter if self-published, or the song’s publishing company) or through a mechanical licensing firm such as Harry Fox Agency or RightsFlow. But the law states that in your new version of the song, “…the arrangement shall not change the basic melody or fundamental character of the work.”
Fantasy: “Copyright owners can make money in ways other than charging for the use of their songs.”
Reality: Songwriters are not always performers. If you do not perform your songs, you may never have the opportunity to tour or sell merchandise. Earning a living from your work could become impossible without copyright protection. Besides, authors of fiction and non-fiction should not be required to forego book sales in favor of selling t-shirts.
Fiction: “Digital files cost nothing so the download of a song should be free.”
Fact: Taking a wallet out of a purse or pants costs nothing so the picking of your pocket should be free, right?
Myth: “Who says what something is worth, anyway?”
Truth: The holder of the copyright gets to choose. While creative works have a relative market value, the true value may not be apparent until some point in the future. The modern classical composer Arvo Part has never been as popular as Mariah Carey, but his creations will outlast hers. (For many of us who cannot hum a bar of Ms. Carey’s tracks, Mr. Part’s glorious works have already outlived the top-selling pop confections.)
Fantasy: “Copyright is wrong because it is a monopoly.”
Reality: While artists and inventors are given “the exclusive Right to their respective Writings and Discoveries” in the Constitution, none of us get any exclusive rights in any industry or trade. I own a copyright to my songs, but only my songs. That doesn’t give me any extra rights anywhere else in the music business. This is hardly a monopoly in the business sense.
Fiction: “Copyright is not a real property right.”
Fact: A variation of this silliness is: “There is no such thing as intellectual property.” Or, if the speaker has more education than brain power, they say something like: “Intellectual property is an oxymoron.” Intellectual property is real, folks. Get used to it.
Finally, let’s look at some from the songwriter’s point of view:
Myth: “Mailing a registered letter to yourself is just as good as a copyright.”
Truth: For this one, we turn to Dorothy Richardson, of the Law Offices of Dorothy Richardson, for an answer: “A common myth is that you can obtain the same protection as a federal copyright registration by mailing a copy of your script or song lyrics to yourself, or by registering a script with the Writers’ Guild of America. These methods are sometimes called ‘the poor man’s copyright.’ The truth is that at best, these methods may serve as proof of the date on which a work was created but they will not provide you with all of the remedies available for copyright infringement under U.S. law. These include the ability to recover attorney’s fees and statutory damages of up to $150,000 per infringed work.”
Fantasy: “Registering a work in a country that signed the Berne Convention on copyright covers all participating nations.”
Reality: Again, let me turn this over to Dorothy Richardson: “Another common misperception is the notion that if you register a work in a foreign country that is a party to the Berne Convention, there is no need to register the work in the United States. While the Berne Convention and the laws enacting it in the United States provide that you have automatic copyright protection if you register a work in another Berne Convention country, you do not have the right to recover attorney’s fees and statutory damages for infringement in the U.S. unless you register the copyright with the U.S. Copyright Office.”
Fiction: “I’m protected because my song is automatically copyrighted as soon as I finish it.”
Fact: While it is nice to know you have an automatic copyright as soon as your song is in “fixed form” (sheet music or a demo recording), it is nicer to have some way to prove your ownership. Carefully dated session files or discs, for example; but for maximum protection, register your work with the Library of Congress (see below).
In addition to those sites mentioned in the article, more information is available here:
Library of Congress’ Registrar of Copyrights:
World Copyright Summit:
International Confederation of Societies of Authors and Composers: