GrindEFX is back, w00t! Over at Techdirt, Michael Masnick highlights an interesting development in machine-generated music: a company claims to have created software that can recreate musical performances by famous musicians, living or dead.

As described on the blog, “Zenph Studio’s approach is to work out how the musician and the instrument acts and responds, then get a computer to play that track again as a real-time, real-life performance, which in turn can be recorded using modern techniques.”

It’s essentially MIDI on steroids. Zenph claims that through its software process, it can capture the nuances of any performer’s style and translate that into an algorithm to generate new recordings of old songs – or make entirely new songs that sound like they were performed by a famous musician.

Leaving aside whether this is a good idea in the first place – how long before we have Kurt Cobain hawking deodorant? - Masnick concludes with what I can only describe as an excellent law school final exam question -

So, now, take this software that supposedly can perfectly mimic a certain musician’s playing, and have it record a song. Say it’s a new song. Who owns the copyright? What if it’s adding John Lennon to a Rolling Stone’s song? Who owns the copyright? What if it’s an old song, updated in some slight way? Who owns the copyright? What if it’s just the same song but “remastered”? Who owns the copyright? The legal questions raised by this kind of software are going to keep copyright lawyers busy for a long, long time.

Being the slightly sadomasochistic law student I am, I couldn’t resist analyzing the issues raised in this situation. I am not a lawyer, and this article is only for general informational purposes; nothing here constitutes legal advice.

Who owns the copyright in a new song created by this software?

So, there’s this girl you like, named Ann Tates. You, being a musician, want to write a song for her (”She makes me pancakes!”) Her favorite artists are Jerry Lee Lewis, Jimi Hendrix, and Yo Yo Ma. Let’s say (assuming the software eventually does this type of thing) that you create your new song with this software.

The song itself is entirely new, including all music, lyrics, and backing parts. But the piano part sounds like it’s being banged out by Lewis, the guitar sounds like something Jimi would play, and the cello part has the characteristics of a Yo Yo Ma performance.

As far as ownership of copyright is concerned, nothing in this situation changes the fact that you, as the musician, wrote and composed the song, so you would own the copyright. But let’s make it more interesting and say the computer program is more like Jammer or Microsoft Songsmith. Instead of actually writing the song yourself, all you have to do is pick the performers you want to emulate, select a music style, and hit ‘go’ – the program does the rest of the work.

Who owns the copyright now? Copyright protection does require only the barest “modicum of creativity“, but here all you’re doing is pressing a couple buttons – theoretically you could do this all day and generate millions of songs.

Intellectual Property attorney William T. Ralston explores the answer to this question in his 2005 article “Copyright in Computer-Composed Music: Hal Meets Handel.” (52 Journal of the Copyright Society of the USA 281). Noting the struggle that copyright law has had with new technologies since the very first Copyright Act, he points out that “no direct legal challenge to the status of copyright in a machine-generated musical work has been raised” to date. He comes to the conclusion that yes, a computer-composed musical work would be protected by copyright, and the user of the program (not the programmer) would typically be the owner of that copyright.

What if it’s adding John Lennon to a Rolling Stone’s song?

Remember that when you’re talking about recorded music, you’re dealing with two entirely separate copyrights – a copyright on the underlying music composition, and a copyright on the sound recording itself. While both copyrights might be held by the same author (for example, an independent artist who records her own songs), it’s important to note that copyright protection in one of the copyrights doesn’t extend to the other.

That is, you’re free to record yourself playing a song in the public domain – Beethoven’s 5th perhaps – and you would receive copyright protection on the sound recording, but that doesn’t stop anyone from recording their own version of Beethoven’s 5th. Your copyright protection on the recording doesn’t give you any exclusive rights to the underlying composition. The same is true for cover versions of songs – anyone and everyone can make their own recordings of a track. None of them have any claim to the underlying musical composition though. And because of the scope of copyright protection on sound recordings, none of them can sue someone else who made a recording of the same song for copyright infringement, no matter how similar the two recordings turned out.

Just like Sir Mix-a-lot, copyright law likes big buts. The ‘big but’ here is that while you get a copyright on a sound recording of someone else’s musical composition, along with the exclusive rights copyright gives you, you still need permission from the composition’s owner to reproduce, distribute, publicly perform, etc, (I’ve truncated the ‘etc’ in this list for simplicity purposes) your sound recording, since you are simultaneously reproducing, distributing, or publicly performing the songwriter’s copyrighted work.

Getting back to the original question, the answer is clear. Since the software is generating its own sound recording (rather than ’sampling’ the sounds from any existing sound recording), you would own the copyright on a sound recording of John Lennon playing on a Rolling Stone’s song. You would not, however, be able to do anything with that recording without the permission of John Lennon or the Rolling Stones (or whoever happens to own the copyright on the musical composition you’ve used).

What if it’s an old song, updated in some slight way? What if it’s just the same song but “remastered”?

The same answer for the previous question holds true here. Again, so long as you’re not actually using the sounds from the original sound recording itself, you would own the copyright on a new sound recording you create from an old song, but the owner of the copyright to the musical composition still retains his or her rights to the song itself. You would need permission from them before distributing, reproducing, or publicly performing your sound recording (or not, if you qualify for a statutory compulsory license).

If you have made changes to the original composition’s  ”basic melody or fundamental character,” you may need additional permissions from the composition owner for creating a derivative work. (’Remastering’ or altering the arrangement to the  ’extent necessary to conform it to the style or manner of interpretation of the performance involved’ does not create a derivative work.)

You may be fine under copyright law, but there are other laws too

Masnick was only asking about the copyright issues that come into play with the software described here. Appropriating an artist’s “style” of playing may implicate various state and federal laws concerning right of publicity or unfair competition, to name a few.

Bette Midler, Nancy Sinatra, and Bert Lahr are just a few of the celebrities who have sued after discovering someone else had used a “sound-alike” to create a new work that mimicked their vocal styles. Copyright doesn’t work here – you can’t copyright a vocal style. Instead, they sought remedies through other laws, including those mentioned above.

These types of claims are complex to analyze. Tort law varies from state to state – what might be a valid claim in California may not be in Wisconsin – and the elements required to plead a case under each law differ. And while you can’t copyright a vocal style, you may still find yourself losing your case if the claim you bring clashes with federal copyright law, as Sinatra found out.

Additionally, you have state common law copyright to contend with, as well as First Amendment implications that may protect certain transformative uses of a performer’s right to publicity! Are you getting a headache yet?

In short, recreating the performance styles of famous musicians using this software may not be legal in areas of the law outside of copyright. The same things that hold true for a vocalist’s right to some control over the use of her vocal likeness would hold true for a performer’s right to the use of his musical likeness. In most states, right to publicity extends to the heirs of a deceased celebrity.

If Zenph Studio’s software does what it says it does, it is likely that we will see some kind of legal challenge in the future from one of the performers it adds to its software.

Image courtesy of misterbisson

The National Music Publishers’ Association filed complaints on Monday, August 24th against two companies alleging copyright infringement for their unauthorized use of song lyrics.

The companies – Motive Force and LiveUniverse – both operate web sites which allow users to read and search for song lyrics from thousands of songs. Both companies also use many “web 2.0″ features to allow users to access the lyric database in Facebook, iTunes, and other third-party applications.

A look at one of the complaints reveals that the Publishers’ Association is alleging, among other things, copyright infringement on the basis of unauthorized public display – one of the few times this particular exclusive right is relevant to musicians. The Association also alleges this infringement is not innocent: both companies, they claim, earn significant revenue from advertising, soliciting donations, and driving traffic to their other ventures.

Billboard reports that NMPA President David Israelite has been leading the NMPA in an effort over the last three years to protect songwriters’ lyrics by contacting hundreds of unauthorized lyric sites providing them opportunities to properly license their content or risk a lawsuit. Says Israelite, “Music fans are the biggest losers when licensed businesses, like LyricFind, Gracenote and TuneWiki can’t survive and prosper because unlicensed, illegal businesses are allowed to thumb their noses at the law.”

Bob Dylan isn’t one to bite his tongue and in the past he has shared his antipathy for digital music. His latest outburst is directed at online streaming sites and last week he ordered sites such as Spotify and we7 to remove his music from their catalogues.

Dylan apparently has issues with the way in which music is consumed and shared in this new digital era. The sites were contacted by representatives for the singer/songwriter’s record company, Sony, and were asked to prove they have the rights to stream his music. Consequently; Dylan’s 30+ album catalogue has been removed from streaming services until an agreement is reached.

Clive Gardiner, we7’s digital music SVP, said: “We took it off the site a few days ago. Spotify would have had the same instruction.  But it may be a short listing and it may come back again.

“There are some artists that will take umbrage at this from time to time. We expect this sort of thing, especially with streaming, and it not being fully understood where it sits yet. “

Publishing.

This one word has caused more musicians to pull their hair out than any other word in the music business. It’s a tricky and confusing subject – confusion that’s aided by the unintuitive nature of copyright law, the use of archaic terms left over from the history of music publishing, and the general craziness of the music business.

But music publishing is one of the most important aspects of the music business. Every musician wishing to earn money from their music needs to have at least a general understanding of publishing.

If you’ve been following the Music Business 101 series here on GrindEFX, you should have a leg up on copyright and licensing, which form the basis for music publishing. If you haven’t read them yet and are unfamiliar with those concepts, why not check them now – I’ll wait!

What is Publishing?

If you recall, the law recognizes two separate copyrightable works in the music world: musical compositions and sound recordings. Musical compositions are merely “songs” – melody, rhythm, arrangement, lyrics (if there are any). Sound recordings are songs fixed on a physical media – CD’s, records, mp3’s (collectively referred to as phonorecords). Sound recordings, then, always incorporate an underlying musical composition.

Licensing is the act of granting a third party rights to your work, presumedly to make money. You can license musical compositions and sound recordings.

Publishing, at its very simplest, is the name given to licensing musical compositions. Other than the name, there is no legal or practical difference between publishing and licensing any creative work besides musical compositions – it’s just that history and custom has given the licensing of musical compositions a unique name (probably to confuse musicians).

Just as you automatically receive a copyright whenever you create a work in a fixed form, you become your own publisher when you create a musical composition. Again, don’t let the word trip you up – all this means is that, as with any other work, you are able to do anything you want with your song, including licensing it to other people to help make money from it.

So, if you’ve created a song, congratulations! Not only are you the owner of a copyright, but you are also officially a publisher. But simply being a publisher won’t make you money – you have to act as a publisher, or find someone else to do it for you.

Music publisher extradordinaire Michael Beall describes publishing this way:

There is no money generated by the act of writing a song; it’s just what you do. Music publishing is the business of turning songs into something that earns money. So if you want to earn money from your songs, you have no choice but to take on that role of the music publisher. Songwriting is the act of creating the music, and publishing is looking at your creation and thinking of revenue outlets for it.

A Brief History – Or, Why is it Called ‘Publishing’?

So why, you may ask, do we give the act of licensing musical compositions the fancy name “publishing”? The answer lies in history. Before the invention of recorded music, there were pretty much only two ways to propogate music: play it live, or write it down as sheet music. During the 19th and early 20th centuries, sheet music was big business. The most popular songs would sell millions of copies, and the sheet music publishers were the big players of the time (perhaps you’ve heard of Tin Pan Alley).

Around the beginning of the 20th century, the player piano became immensly popular. With specially-made piano rolls, anyone could enjoy the sounds of popular songs in their own home without needing the ability to play the piano. Music publishers and songwriters began licensing their songs to piano-roll manufacturers, creating a lucrative new revenue stream. The “mechanical license” was born – a license of a musical composition to the manufacturer of a mechanical device that plays that musical composition.

With the invention of radio and recorded music, publishers expanded their role to incorporate these new avenues for licensing. Today, the publishing of sheet music is only a small part of any song’s licensing income, but the term “publishing” is still used to describe any and all licensing of a musical composition. And while piano rolls have fallen off the map, the mechanical license remains. It now refers to the licensing of a musical composition for any phonorecord – from albums to digital files and even ringtones.

Enough With the Yackety-Yak, Show Me the Money!

If you’ve made it this far, you’re probably thinking “Wonderful, I can call myself a publisher, and you even managed to sneak in a history lesson. Now can you get to the part where you tell me how I can use this information to make some moolah?”

Okay then.

Remember, any income from licensing stems from one or a combination of any of the exclusive rights encompassed by copyright: reproduction, distribution, public performance, etc. I’ve listed below just a few of the most common ways musical compositions can generate revenue.

• Mechanical licenses – physical and digital sales of sound recordings, ringtones
• Public performance licenses – radio, internet streaming, concerts, background music in retail establishments, jukeboxes – any music that is performed or transmitted to a public audience alone and not with a visual element falls under this type of license (most are administered by Performance Rights Organizations, the subject of next week’s entry in the series)
• Sync licenses – use of the song in movies, television, television commercials – as the name suggests, any use of music synced to visuals (including video games)
• Sheet music licenses – still around, but not a very large income generator, especially for the hip-hop and electronic genres
• Public display licenses – yes, if your song has lyrics than you can license the public display of those lyrics – for example, on lyric websites (though I’m unsure if many lyric websites operate above-ground)

The first three licenses by far generate the majority of income for songwriters. Let’s take a real quick look at how you go about getting these licenses.

If the songwriter is also the recording artist then the mechanical license is a moot point. If the songs are being released by a record label, than the record label will provide for a mechanical license payment to the songwriter through the recording contract (usually this involves a controlled composition clause). If the songwriter is selling the album himself, then he’s already collecting the mechanical license from the proceeds of the sales (in a very strict sense, the musician as songwriter has granted an implied mechanical license to the musician as recording artist, and the musician as recording artist ‘pays’ the musician as songwriter a percentage of the gross sales.)

It’s only when a recording artist other than the songwriter wishes to use the song that the mechanical license comes into play. These may be entered into directly between the songwriter and the recording artist (or record label). A large number of mechanical licenses are administered through the Harry Fox Agency, which acts as a clearinghouse for many music publishers and licensees. Finally, in the United States (and several other countries), once a song has been published, any recording artist can obtain a compulsory mechanical license to make a new recording of the song without needing permission from the songwriter.

Except in rare cases, public performance licenses are administered by blanket licensing organizations known as Performance Rights Organizations – ASCAP, BMI, SOCAN, PRS, etc. I will be explaining PRO’s in more depth next week.

Sync licenses are negotiated one-on-one between publishers and producers or between music placement agencies and producers.

Music Publishers

Not only is publishing a difficult subject to learn, it involves a lot of work. Fortunately, as with pretty much anything in life, you can find someone else to do that work for you. When it comes to music publishing, that someone else is known as a (wait for it) music publisher.

The biggest advantage of working with a music publisher is clout. Someone with connections and contacts in the industry can do a lot more with a song then an unknown artist. Even if you have your own connections, doing your own publishing takes up a lot of time – time that could be spent writing more music. And even though musicians should educate themselves about the basics of the music business, many don’t care for the business side of music and are more than happy to let someone else take care of those things.

Along with shopping and placing your songs, music publishers take care of administrative duties – all that fun stuff like registering copyrights, doing the paperwork for PRO’s, accounting, and keeping an eye out for infringement.

Of course, music publishers don’t work for free. They typically make money by taking a cut of your publishing income – most commonly anywhere from 10% for a basic administrative publishing agreement all the way up to 50% for a publisher taking an active role in shopping and placement. While it is starting to become less common, music publishing agreements may call for a songwriter to assign a portion or all of his copyright to the publisher. You may have heard people warn you that whatever you do, never give your copyright up! Why would a songwriter want to enter into such an agreement then? The simple answer is that in some cases it may make sense. Giving up your copyright to get 50% of a lot of money that a well-established publisher can generate from your song is a lot better than getting 100% of nothing on your own. It all comes down to the individual songwriter (and his lawyer hopefully) to decide if the benefits outweigh what he is giving up.

Signing with a music publisher is getting more difficult. Like major record labels today, music publishers are more likely to sign artists who are already generating income from their songs rather than unestablished musicians.

Conclusion

Hopefully you understand a little more about publishing, but I’ve only scratched the surface – given you the broad strokes in an incredibly detailed and complex area of music business.

More Resources

• All You Need to Know About the Music Business by Donald S. Passman – The closest thing to a bible for the music business. Any musician – independent or not – who is serious about earning money from their craft should have a copy of this on their bookshelf.
• Taxi: Publishing – An excellent collection of articles going into music publishing and how music publishers operate. Includes an article by Donald Passman about setting up your own music publishing company.

Previous posts in this series

• Music Business 101 – Copyright
• Music Business 101 – Copyright Registration
• Music Business 101 – Licensing

Image courtesy of Now I’m Always

We discussed previously the exclusive rights a copyright owner gets in connection with her copyrighted work. To recap, a copyright owner has the exclusive right to:

• Make copies of the work
• Make derivative works based on the work (translations, remixes, etc)
• Distribute the work to the public
• Publicly perform the work (a big one for musicians)
• Publicly display the work (more for painters and sculptors)

Anyone can exercise these rights by himself, but it’s a lot of work – never mind getting your own CD’s printed up and selling them yourselves, could you imagine having to own your own radio station in order to promote your songs? Most musicians want to reap financial benefits from their work, and most are also happy to let someone else handle that part of the business. But aside from selling the copyright itself, how does one accomplish this?

The answer is licensing.

(I am not a lawyer, the following is based solely on my personal opinion and research, and nothing that follows should be construed as legal advice. The following should only be used for informational purposes. Anyone with specific questions should consult with their attorney.)

What is Licensing

Licensing is granting someone else the permission to exploit your own copyrighted work. You can license all of your rights to a third party, just one of the rights, or a combination of the rights. For example, you can grant someone a license only allowing them to distribute your work to the public. In effect, a license is saying that the licensor (you) won’t sue the licensee (the third party) for engaging in what would normally be considered copyright infringement.

Along with what rights you are granting to a third party, a license typically includes limitations on the length of time the license is in force and the territory it covers. It may also include certain conditions that must be met for the license to remain effective – perhaps requiring the licensee to account for all profits made off your work, or not allowing the work to be used for certain purposes like selling toothpaste or appearing in pornos.

Except for exclusive licenses, which must be in writing to be legit, licenses may be oral or even implied. If your buddy has connections in the industry, and you give him a copy of your song to shop around, you’ve more than likely also given him an implied license to reproduce and distribute your work for that purpose. Likewise, if you make a free download of your song available online, you are giving anyone who visits your site an implied license to download (reproduce) your song onto their computer.

When licenses are in writing, they are usually included in a contract which can include additional conditions and agreements on payment in exchange for the license grant. Note: any recurring payment a licensee gives to a licensor in connection with the copyrighted work is customarily called a royalty.

Although it may seem like legal nitpicking or semantics, license grants and contracts are two separate things. The importance of that distinction will be discussed in more depth below.

While license agreements are usually entered into on a one-on-one basis, there are times when it makes more sense to have blanket licenses. Blanket licensing societies exist to administer licenses in those situations where it would be far too complicated and cumbersome for individual licensees and licensors. Playing music on radio stations is a prime example – imagine if every single songwriter had to enter into a license agreement with every single radio station (and vice versa) to give them permission to play a song.

You’ve probably heard of many blanket licensing societies already – they include the Harry Fox Agency, SoundExchange, and the PRO’s: ASCAP, BMI, SOCAN, PRS, etc. I’ll explain PRO’s in more depth in a future article, but for now all you have to know is that these blanket licensing societies act as a go-between for the millions of content owners and millions of content users.

101 Contracts For Free!!!

Stay away from contracts you download off the internet, find in books, or otherwise come across from anywhere besides your own lawyer. You can find many people who say they work just fine, but ask them if they’ve ever had a dispute over one of those contracts that ended up in court. It’s kind of like saying a bag of spoons works just as well as a parachute as long as you never have to jump out of a plane.

Except in very specific cases, oral contracts are just as enforceable as written contracts. Should a dispute arise over an oral contract, courts look at all the evidence available to determine the intention of both parties.

But when you throw a form contract in the mix, the intentions of the parties may become obscured. While some judges may not give too much weight to a contract that was downloaded off the internet, others may – putting you in a worse situation then having no written contract at all. Thousands of cases have made it to court where the meaning of a contract hinges on a single word. Do you really want to take the risk that a judge will give weight to a written contract that you downloaded off the internet stating the opposite of what you intended?

As mentioned above, a copyright license – while wrapped in a contract – is a separate entity from the contract. Now you’re dealing with two very complex areas of the law. Do you still want to put your faith in a document you picked out of a zipped file of contracts? Intellectual property licenses typically have to mirror the statutory language that governs the underlying intellectual property rights being granted – language that changes from time to time. How sure are you that the contract you downloaded from RapidShare is up to date?

When it comes to licensing, you’re dealing with a tricky subject best left to trained professionals. Attorney Ken Adams, who literally wrote the book on drafting contracts, once asked why certain portions of intellectual property licenses couldn’t be phrased better. It was quickly pointed out that this would probably be a bad idea because of the nature of intellectual property licenses and how they differ from everyday contracts. This illustrates just how important it is to have a lawyer familiar with IP to draft your contracts. Even the most skilled lawyer may be unaware of some of the pitfalls of IP licensing if she is not familiar with that area of the law.

Exclusive and Nonexclusive Leases

I wanted to discuss a practice that has become commonplace among many independent hip-hop beat writers, particularly on the internet. This is the practice of selling beats either as “exclusive” or “nonexclusive” “leases.” The idea is that the beat writer can sell the beat to as many artists or rappers for a lower price (the “nonexclusive lease”), or to a single rapper for a higher price (“exclusive”).

The practice certainly makes sense. My problem is in the terminology used. As mentioned above, intellectual property licenses should mirror the statutory language as closely as possible to avoid ambiguity or unenforceability.

Intellectual property is licensed – not leased. While the two terms imply a similar grant of rights, there are differences. Leases typically involve tangible property, as opposed to intangible intellectual property – one rarely sees contracts drafted by lawyers familiar with intellectual property talking about leases.

The biggest problem is that a “lease” also typically infers exclusivity. If a landlord leases you a storefront, the landlord gives up the right to enter the premises without your permission. I doubt many beat writers would want a judge to interpret a lease – especially a nonexclusive lease – as implying that they no longer can use their own beat.

“Exclusive” and “nonexclusive” are accurate ways to describe the type of licenses a beat writer wishes to set up, but in the realm of copyright licenses, these terms have specific, statutory meanings. An exclusive license (which must be in writing) acts similar to a transfer or assignment of copyright. The original owner no longer can exercise the rights given by copyright during the term of the license. And yes, there have been cases where the original creator of a copyrighted work has granted an exclusive license to a third party and then was sued for copyright infringement when he made use of his own work. Again, I doubt that this is what a beat writer has in mind.

Even rappers who get beats under these types of contracts are putting themselves at risk. An exclusive licensee can sue for copyright infringement as if he was the original creator of the work. If a beat writer has already licensed a nonexclusive beat to rapper A, and then licensed it exclusively to rapper B, rapper B can potentially sue rapper A if A is distributing the beat. Yikes.

This is just my take on the subject, and because I have not found a case where interpretation of these types of contracts are at issue, I can’t say for sure how a judge would interpret the use of “nonexclusive” or “exclusive.” But I can say for sure that use of these terms raises huge risks. Any decent entertainment or intellectual property lawyer can draft up an agreement that does exactly what these types of contracts are supposed to do in a way that sidesteps this ticking time bomb.

(One more reason to stay away from premade form contracts!)

Creative Commons

If you’ve spent any time on the internet, you’ve probably heard of Creative Commons by now. Since this is the internet, there is a lot of hyperbole thrown around between supporters and critics of Creative Commons. But with Creative Commons licenses already covering millions of works – among them the best-selling mp3 album of 2008 – artists and musicians are likely to want to know more about the what, how, and why of Creative Commons licenses. Hopefully I can sift through the hyperbole to help you understand Creative Commons a bit better.

Creative Commons licenses are public licenses, much like the licenses that are used by open-source software (GNU, Mozilla, etc). But while those licenses govern programming code, the various Creative Commons licenses creative works – writing, photos, artwork, and music.

Creative Commons licenses work similarly to end user license agreements (EULA’s), or “click-wrap” licenses that you see when you install a new piece of software. There is no “meeting of the minds” like you find in traditional contracts – you agree to be bound by the terms of the license agreement by using the work being licensed.

All Creative Commons require attribution as a condition to reproduction and distribution of your copyrighted work – if someone wants to post your song on a blog, for example, they have to give you credit. From there, you have your choice of a variety of licenses and combinations of grants of rights. Creative Commons has licenses that limit the grant of rights to non-commercial uses, allow or don’t allow derivative works (new works based on or incorporating your work), etc.

People use Creative Commons licenses for many reasons. Some use it because they subscribe to a philosophy of art that encourages sharing and giving back to the creative community. Others feel that freely sharing their work is a great promotional tool and like the added control of a Creative Commons license (see Jonathan Coulton). Jonathan Bailey points out several lesser-known benefits of using Creative Commons licenses – most importantly that they provide more clarity than implied licenses.

Whatever the reasons for using one, the bottom line is that Creative Commons licenses act pretty much like any other copyright license. They grant third parties permission to participate in specific rights given to a copyright owner under certain conditions. Whether or not Creative Commons is right for an individual musician is a choice for that musician.

More Resources

• US Copyright Office: Copyright Internet Resources
• BitLaw: Copyright Licenses and Assignments – More information regarding transferring, recording, and terminating copyright licenses
• Kohn on Music Licensing – exhaustive list of links to sites relating to music licensing and more

Previous posts in this series

• Music Business 101 – Copyright
• Music Business 101 – Copyright Registration

Image courtesy of thinkpanama

In the last article I discussed the basics of copyright – what it covers, how to get a copyright, what you can do once you have a copyright, etc. If you recall, in nearly every country, copyright protection manifests automatically as soon as an original work is in fixed form.

But you’re also probably aware that you can register a copyright in the United States. I’ve seen a lot of confusion about this, so I’m going to try to lay it out in more detail.

Disclaimer: I am not a lawyer. Anything in this post is for informational purposes only – if you have specific questions, seek out the counsel of a practicing attorney.

Copyright vs. Copyright Registration

Getting a copyright and registering your copyright are two entirely separate things. Getting a copyright is automatic. In the US, and nearly every country in the world, once you put your music, writing, artwork, or whatever into a tangible, fixed form (like a computer file), you have a copyright.

That’s a very big point so read that last paragraph again because I see most of the confusion about copyrights and registration coming from not understanding that point.

Registering your copyright, as I said, is an entirely different matter. Outside of the US, most countries don’t even have an official government registration of copyrights. But the United States still holds on to having a registration process that authors and musicians can take advantage of.

Important! – Registration fees increased on August 1st. Electronic registration is still the best way to go, both in price and processing time. Second is using the universal Form CO. If you somehow manage to get your hands on the old PA or SR forms (only available by request at the Copyright Office), be prepared to pay more than the other two options – and be prepared for a much greater processing time.

Benefits of Registration

So why would you want to register your copyright? Copyrights are automatic, right? Sure thing! Registering your copyright merely provides certain additional benefits. Most of these are only benefits you would see if you ever sued someone for infringing your copyright.

The US Copyright Office lists the following benefits of registration:

• Registration establishes a public record of the copyright claim.
• Before an infringement suit may be filed in court, registration is necessary for works of US origin.
• If made before or within five years of publication, registration will establish prima facie evidence in court of the validity of the copyright and of the facts stated in the certificate.
• If registration is made within three months after publication of the work or prior to an infringement of the work, statutory damages and attorney’s fees will be available to the copyright owner in court actions. Otherwise, only an award of actual damages and profits is available to the copyright owner.
• Registration allows the owner of the copyright to record the registration with the U. S. Customs Service for protection against the importation of infringing copies.

Probably the biggest benefit relating to an infringement lawsuit is that you cannot sue someone without a copyright registration. I know, it seems kind of silly to say you don’t need to register your copyright to get protection, but you can’t do anything in court about it without a registration. That’s just how it works.

The second biggest benefit is the establishment of prima facie evidence of ownership and date of creation. That means that if you sue someone for copyright infringement, your registration certificate is all you need to show the court that you are the owner of the work in question, and that it was created on the date listed on the certificate. If the defendant wishes to challenge any of that, he has the burden of proof – in this case a very high burden.

Important! When is the effective date of a copyright registration – the date the Copyright Office receives your application, or the date the Copyright Office completes the registration process for your application? Good question! Unfortunately, courts are split on this question. Some take the first approach, some take the second. With the time-sensitive nature of many of the registration benefits, it’s very important to be aware of which rule the venue you are suing in follows. A good copyright lawyer is highly recommended if you have questions about this.

Proving Ownership and Poor Man’s Copyright

Many people often ask how to prove ownership of a song or other work if someone else has plagiarized it. The answer is the same as any other case – evidence. There is nothing special about copyright infringement and what types of evidence are needed to prove ownership. Registering your copyright, however, goes a long way in proving ownership. As you can see above, it establishes prima facie evidence of your ownership – meaning that you don’t need any more evidence than your registration certificate as proof. (People also ask what happens if someone swipes their song and registers a copyright as if they were the original owner. In that case, not only would they be liable for copyright infringement, but also fraud on the Copyright Office and probably state and federal unfair competition and misappropriation causes of action, to name just a few.)

But this belief in “special” evidence for copyright ownership leads to belief in the “Poor Man’s Copyright.” Poor Man’s Copyright refers to any practice besides official registration that is used to preserve evidence of ownership of a copyright – like mailing a physical copy of the work to yourself and keeping it unsealed. The idea is that, if you ever find yourself in court,you can pull out the unsealed envelope – which was stamped with the date it was mailed – and dramatically open it in front of a judge, proving that you created the work on the date you said you did.

A couple things are wrong with this scenario. First, this type of evidence is very easy to forge (you could mail an unsealed envelope to yourself and keep it around until its needed.) More importantly, if you’ve been paying attention, you’ve noticed that you can’t even get into court without a copyright registration. And, a copyright registration provides prima facie evidence of your ownership – making any additional evidence mostly unnecessary.

I’ve seen online services that claim to provide private “registration” services for copyright owners – upload your song, and it will be “time-stamped” on a “secure server” to provide evidence of ownership and date of creation. Basically, these services are providing a high-tech version of the Poor Man’s Copyright. Again, pretty much unnecessary if you ever find yourself in court. I have yet to find a single case where any version of the Poor Man’s Copyright was needed or used successfully to prove ownership and date of creation. If you know of one, I’d be happy to hear about it!

Important! This section applies only to musicians in the United States. In other countries, especially ones without a government registration process, the Poor Man’s Copyright might provide some benefit in the event of an infringement lawsuit. The Jamaican Intellectual Property Office website, for example, recommends this method for establishing proof of ownership and date of creation.

Foreign Authors

In many other countries, registration is not required in order to protect your copyright in court. A lot of countries don’t even have a registration process like the one in the US. Some do, primarily for public record and evidentiary purposes. You can look up your country’s copyright laws to see what sort of registration process is available in your specific country. (Check out the links in last week’s post on copyright.)

But what if you’re not a US citizen, yet you are releasing your work in the US (pretty much a given if your work is online)? Do you need to register in the US to protect your copyright?

Under the Berne Convention, “foreign authors are given the same rights and privileges to copyrighted material as domestic authors in any country that signed the Convention.” In the United States, this means that foreign authors are not required to register to receive many of the benefits of registration – including the ability to sue for copyright infringement. A foreign author may still register if he wishes (to establish a public record, for example).

Important! While registration is not required for a foreign author to sue for copyright infringement in the US, it probably is required in order to seek statutory damages and attorney fees. The same time frame for registration applies to foreign authors. This is probably the biggest reason a foreign author should take into consideration when deciding whether to register her copyright in the US. Again – check with a lawyer!

More Resources

• US Copyright Office Circulars and Brochures – these documents contain a wealth of information about the registration process and should answer many questions that pop up.
• Volunteer Lawyers for the Arts (New York) – Contains a wealth of information and links about copyright and other legal issues relating to musicians and artists.
• VLA National Directory – National directory of organizations that provide low-cost and pro bono legal assistance for musicians and artists. A good place to start if you think you may need an attorney but don’t know if you can afford one.

Previous posts in this series

• Music Business 101 – Copyright

Image courtesy of Gregoryjameswalsh

On Friday, a jury handed Joel Tenenbaum a verdict of $675,000 for illegally downloading 30 songs. This marks the second time in as many months that a jury has ruled in favor of the RIAA.

The verdict – $22,500 per song – is neither surprising nor as large as the one in last month’s trial against Jammie Thomas-Rasset. Ben Sheffner of Copyrights and Campaigns has a detailed post-verdict writeup. Among the highlights:

· Tenenbaum is planning an appeal of the verdict, and possibly declaring bankruptcy if he loses that appeal.

· While the RIAA has stopped filing lawsuits against new filesharers, it is continuing to move forward on currently filed lawsuits. In all, there are over 100 pending lawsuits, with about a dozen actively in litigation.

It remains to be seen how many of those pending lawsuits actually make it to trial. Of the 18 – 35 thousand downloaders the RIAA has sued, this is only the second case to reach a verdict. It also remains to be seen whether the RIAA’s strategy as a whole has resulted in a reducing the growth of P2P filesharing, or deterring internet users from engaging in the same behavior as Tenenbaum.

Rumor has it that Tenenbaum’s attorney, Charles Nesson, is planning on joining forces with Thomas-Rasset’s attorney Kiwi Camara in a class-action suit against the RIAA for its filesharing litigation strategy. The federal judge in Tenenbaum’s trial has announced that she is planning on a post-trial proceeding to determine whether the amount of damages awarded is constitutional.

Volokh Conspiracy’s David Post points out some interesting math in the amount of damages the jury chose to award the RIAA. The minimum statutory damages available for willful copyright infringement is $750. If you multiply that amount by the number of songs at issue in this trial (30), you come up with $22,500 – the amount the jury awarded for each song. He wonders if the jury meant to award the minimum amount but inadvertently awarded what would have been the total in that situation for each song. $22,500 is a rather arbitrary amount, considering the range of damages available is from $750 to $150,000 per work. The amount awarded per song in the Thomas-Rasset case – $80,000 – at least makes some sense, since it is roughly half the maximum award.

Putting a positive spin on things, Pete Cashmore at Mashable notes that, compared to $22,500 for an illegal download, iTune’s 99 cents for a legal mp3 is a damn good bargain.

In other news, a major record label embraced an infringement of one of its copyrights rather than go down the punitive route and made a ton of money.

I leave the question of which approach the music industry should take in the future to you. The latter approach – admit that digital media and internet architecture make it impossible to exert control over ones copyrights and find other ways to monetize content? Or the former approach, illustrated by the Tenenbaum lawsuit?

Image courtesy of Ilken

Welcome to the first installment of GrindEFX’s introduction to some of the most important, and most confusing, concepts in the music business. These are concepts that serve as required knowledge for anyone wishing to take their music beyond the hobby level. They are also concepts that serve as a constant source of frustration and consternation to those same musicians.

Most, if not all, of this information can already be found on the internet. However, a lot of it is not targeted to musicians – it may be good information, but too complex or irrelevant to musician’s concerns. A lot of it might also provide a good explanation of the concepts but not explain the practical application of the concepts to the music business. And finally, there is plenty of bad or outdated information out there; a new musician may not be able to tell the difference between the good and the bad.

So we at GrindEFX are bringing you, the independent musician, this series that lays out the concepts in an easy to understand and relevant fashion. Standard disclaimer: I am not a lawyer, and nothing in these posts should be constituted as legal advice. It is only provided for informational purposes. If you have questions about a specific situation you are in, you should contact an entertainment lawyer.

Let’s begin.

Copyright

One way to look at the business of music is that everything starts with the copyright. But what is copyright, and how does it work?

A quick note, I will be discussing copyright primarily from a United States perspective. Most of what I am saying is similar in other countries, though not all of it. I will try to make note when that is not the case.

Copyright can be thought quite simply as a form of property. Legal types call it “intellectual property” to distinguish it from other forms of property – houses, land, personal possessions. Those other types of property are tangible – you can see and touch them. Intellectual property acts in many ways like these forms of property, but it covers things you can’t see or touch – intangibles.

Actually defining property is beyond the scope of this post; you can literally write pages and pages on the subject. To keep it simple, we will define the property of copyright by what intangibles it covers, and what rights are given to the “owner” of those intangibles (and if you haven’t guessed by the quotation marks, we’ll then spend time defining who exactly is the owner.)

What Copyright Covers

Copyright protects the expression of ideas. That’s the cute, but not very useful definition, though it does signify the fact that copyright does not protect ideas alone. Good thing too, otherwise Hollywood would have run out of movies it could make a long time ago! No, copyright only protects the “expression” of those ideas, whether written in a book, painted on canvas, or for our purposes, recorded. The US, and most other countries, also add the requirement that this expression must be “fixed.” So, if you think of a melody in your head, and can hum it whenever asked, that melody is not protected by copyright. It is an expression of your idea, but it is not in a fixed form until you write the melody onto sheet music or hum it into a recording device.

The other requirement for copyright protection is that the expression has to be “original.” That’s original in the sense that you didn’t copy it from someone else, not that it’s unique. Copyright protection has no requirements for how “good” the expression is, or how novel or creative it is – it just has to be an original expression of an idea in a fixed form.

Getting a Copyright

Getting a copyright is easy in the US and any other country that is a member nation of the Berne Convention (nearly every country on the planet). Once your original expression is in fixed form, BOOM! Copyright. That’s all there is to it. So once you put pencil to paper you got your copyright, or once you hit save on your DAW, you got your copyright.

That really is all there is to it. A lot of confusion, especially in the US, comes from the copyright registration, which I will discuss in more detail in a future post. For now, just know that copyright registration can provide certain legal benefits, but it is not necessary or required to get copyright protection.

What You Get With a Copyright

Remember when I said the property of copyright can be defined by what rights it grants the owner? Well, let’s look at those rights:

In the US, a copyright owner has the exclusive (she is the only one who has these rights unless she agrees to sell, transfer, license, or give them away) rights to:

• Make copies of the work

• Make derivative works based on the work (translations, remixes, etc)

• Distribute the work to the public

• Publicly perform the work (a big one for musicians)

• Publicly display the work (more for painters and sculptors)

Note: The rights associated with a copyright for “sound recordings” differ slightly from these – we’ll get into that more when I discuss “sound recordings.”

Another note: Many countries outside the US recognize certain “moral rights” for the creators of a copyrighted work. These may include the right to attribution (you have to be credited anytime someone exercises one of the above rights) or the right to the integrity of the work (no one can distort, mutilate, or otherwise ‘ruin’ your work).

I’ll get into licensing in a future post as well, but for now I wanted to mention that licensing is the tool used by copyright owners to allow other people to exploit (in the good sense of the word, ie, make money off of) any one, or any combination, of those above rights. Again, whatever form the license takes, it will stem from one, more than one, or all of those specific rights.

How Long Do You Get Your Copyright

Copyright is not forever, but it will feel that way for you. In the US, copyright begins when you create the work and lasts until you die, plus an additional 70 years after that (typically inherited by your heirs, and inherited by their heirs if they don’t live that long, and so on). Again, in many other countries, the time-frame is the same, though at the end of this post, I will list several links where you can find out the exact time period for the particular country you may be in.

Once the time-period of copyright is over, the work goes into the public domain. The owner of the copyright (the heirs of the creator) no longer has any of the above exclusive rights. Anyone is free to distribute, copy, publicly perform, etc. the work.

Music is so (P)(C)

Ok, now hopefully you know what a copyright is. You know what it covers, how to get it, what it protects, and how long it lasts. Now comes the tricky part. Don’t worry if you don’t get this part right away, I’ve seen fellow law students pulling their hair out trying to understand this! But pay attention: this is an extremely important part of understanding the music business, and I will be referring back many times to this discussion in future posts.

When we’re talking about MUSIC, we’re talking about two possible copyrights at play. You get a copyright on the “music,” and you can also get a copyright on the “sound recording.”

Think of “music” as traditional sheet music: a piece of paper with the notes of the song on a staff and the lyrics written down (if there are any). The “sound recording” is when a band puts that sheet music in front of them and records it onto tape, or DAT, or a computer hard drive. The music and the sound recording are two entirely separate copyrights. So you can say a sound recording will always consist of two separate copyrights since it has its own copyright and there is always an underlying musical composition with its own copyright. The musical composition, on the other hand, consists solely of one copyright until someone records it and makes another copyright.

Confused? Let’s look at it this way. Beethoven has long been dead; any of his music is clearly in the public domain. You can perform it in public, make copies of it, whatever you want with it. You can even record yourself playing Beethoven AND get a copyright on that sound recording. Someone else can do any of those things with Beethoven’s music as well. What they CAN’T do is distribute or copy (or whatever) YOUR recorded version of you playing Beethoven.

Another example. Say you have a CD with an awesome song that you want to put in your movie. You potentially have to deal with two copyright owners. First, you need a license from the copyright owner of the song itself, then you need a license from the copyright owner of the sound recording of the song. Maybe you get permission from the songwriter, but not the recording artist. No problem! You can then get permission from the songwriter to make your OWN sound recording of the song (I’m leaving out the issue of compulsory licenses now for simplicity’s sake, I’ll get to them in a future post). Now you have permission from the songwriter, and since you’re the owner of the sound recording copyright, you can use the track in your movie. Yeah, weird, but the owner of the other sound recording copyright doesn’t have the right to stop other people from making their own sound recordings of the exact same music they used.

Sound recording copyrights are sometimes called the red-headed stepchild of copyrightable subject matter, and not only for that reason. I mentioned earlier that the rights a copyright owner of a sound recording differ slightly from the rights of other copyright owners. At least in the US, the copyright owner of a sound recording does NOT have the exclusive right to publicly perform the work (at least not yet). That is why radio stations pay royalties to songwriters whenever they play a song but not to the recording artists.

You might be asking yourself right now, what if the person who wrote the music is the same as the person who made the sound recording? Or, do I really have “music” if I created a song in a program like Reason and hit save? I created a sound recording at the same time! Yup. If the same person wrote the song and recorded it, they still own two copyrights. And even if you wrote the song while they were recording it, which is what happens when you use a DAW to create music, you still have created two separate works with two separate copyrights.

Confusing? Yes. Important in the music biz? Heck yeah.

More Resources

• US Copyright Office – chock full of materials, pdfs, forms, and other information explaining US copyright
• WIPO – CLEA – This site provides full-text documents of copyright laws (among other things) for over 180 countries around the world.

Other countries:

• Australia (Not a government site, but provides comprehensive information on Australian law and practices)
• Canada
• United Kingdom

Image courtesy of n3wjack