What is a Song, Legally.

     The Night Light returns by going back to basics - with a review of what a song is, in the copyright law context. 

 

          As you may know, I am an entertainment attorney, but also a musician and producer.   Along with representing musical artists, I also run a small label and publishing company.  Music comes in all flavors, but the laws of music apply across the board. 

            So when I ask, What is a Song?  I get many answers.  Music and lyrics?  Melody and harmony?  Rhythm and groove?  Yes to all.  But legally a song contains two distinct elements that implicate different rights, different royalties and different revenue streams. Under United States’ copyright law, the two parts of a song are: 1) the musical composition or underlying song; and 2) the recorded performance of the song.

         The musical composition or underlying song is embodied by the notes on a page of written music but exists in a more metaphysical sense as the thing created by the songwriter.  There can be many sound recordings of a song, but only one musical composition.  For example, the song Help was written by Lennon/McCartney – they are the only songwriters and only Lennon/McCartney (or their publisher) will always own the musical composition.  Every time the musical composition is performed, live on the radio, television, internet or other media, the songwriter is entitled to a royalty for the use of the musical composition, which is called a performance royalty or publishing royalty.  The performance or publishing royalty is typically collected by ASCAP or BMI, usually through a music publisher who pays the songwriter.

        The recorded performance of a song (sound recording) is a different copyright and different royalty.  Unlike the musical composition, there can be many recorded performances of a song like Help by many bands, including the Beatles.  The sound recording of a song is owned by the person performing the song, unless there is a contract giving the person paying for the recording (a music label) ownership.  The music label pays the artist who records the song a royalty based on the sales of the sound recording, called a sales royalty or artist royalty.  

       That is just a crash course in the basics.  Over the next few months, this newsletter will fill in some of the details.  I believe it is important that music artists get educated in the basics of the music business.  If you want music to buy your groceries, your are at least as much music business-person as music artist. 

   

3345 Music Xmas Gift Mix - Dreams Become You: 2007-2011

3345 Music Xmas Gift Mix - Dreams Become You: 2007-2011

A 3345 Music sampler free download mixed by 3C - from us to you that make it all happen - Happy Holidays!

3345 Music - Dreams Become You: 2007-2011

Groovalicious - So Right Tonight (Moodswinger Vocal Vibe)
3C - Dream State (Ander's Nordic Mix)
Castillo & Face feat. Jennifer Perryman - Funky Little Dots (Intensity of Sound Plotted Dots Mix)
Alexander East - Supposed 2 Be (Aarta's Architects Mix)
Craig Stewart - Not What You Know (Audio Soul Project Instravox)
Ciappy DJ - Just Believe (Brazil Dream Mix)
Intensity of Sound - From Chicago to Detroit
Jennifer Perryman - Wake Up (Ralf GUM Remix)
Triple Threat - Gone! (High Maintenance Remix)
Face feat. Jennifer Perryman - Free (Rick Preston West Coast Mix)
Pepper Mashay - Thing U Do (Chuck Love Network Rework)
Groovalicious - So Right Tonight (City Soul Project Club Mix)

Fair Use – When Is It Fair?

Fair Use is the concept that sometimes copyrighted material – such as a song created by a songwriter – can be used without permission or payment.  Fair use is a limitation or exception to the exclusive rights given to the creator of an artistic work by copyright law.  But Fair Use is limited to narrow categories: news reporting, research, teaching, scholarship, commentary, criticism. 

There are four elements to determine whether use of copyrighted material is a Fair Use:  the purpose and character of the use; the nature of the copied work; and amount of the work copied; and the effect of the copying on the copyrighted work’s value.  Generally, the greater the amount of the copyrighted work used, the less likely there is a fair use.  And if the use reduces the copyrighted work’s value, the less likely there is a fair use.

            Using a sample of music is probably never Fair Use.  Using a copyrighted work for a non-commercial reason is not necessarily fair use.  Using a copyrighted work for a commercial reason – to make money – is probably not a fair use.  But parody, even for profit, can be a fair use.  In the Supreme Court case Campbell v. Acuff-Rose Music, Inc., Roy Orbison's music publisher, Acuff-Rose Music Inc., sued 2 Live Crew for their use of "Oh, Pretty Woman."  The Supreme Court said 2 Live Crew’s version with altered lyrics was a ridiculing commentary. Because the parody was the product, rather than used for advertising, commercial sale did not bar the Fair Use.

            But remember, while Fair Use is a defense against copyright infringement, it does not stop anyone from suing to get a court’s opinion on whether a use is Fair Use.  Fair Use is a very technical aspect of copyright law and should not be taken lightly.  It is always best to get permission, or pay the proper royalty, before using any copyrighted material – and of course, get proper legal counsel.

5 Top Characteristics of Full Time Musicians

Check out this interesting article:

http://www.hypebot.com/hypebot/2011/08/5-top-characteristics-of-full-time-musicians.html?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+typepad%2FDqMf+%28hypebot%29&utm_content=Twitter

Material Terms of a Contract

          Any agreement for two people (or businesses entities) to do something can be an enforceable contract, as long as the contract is not for something illegal.  For instance:  “I will pay you $100 to perform songs for one hour” could be a valid contract.  Enforcing a contract means that a court can make a party pay what was owed under the contract:  If you perform and I don’t pay you, you can ask a court to make me pay you. 

            Contracts start with an offer, there must be acceptance of an offer, and agreement about the terms of the contract.  But there are several essential or material terms that must be part of the agreement, so that the contract is clear enough to be enforceable.  Those include:

                        Parties – Who is the contract with?

                        Term – How long is the contract for?

                        Consideration – How much is being paid?

And lastly, what good or service is being provided.  Contracts can have many elements, but if there is offer, acceptance, and agreement on the who, what, when, how long and how much, there is probably a legally enforceable contract.

            Oral contracts are enforceable, but hard to prove, unless both sides agree on the terms.  Unsigned contracts can be enforceable if both sides agree the terms were intended to be followed.  Notes scribbled on a crumpled napkin and initialed can be an enforceable contract.  And an email exchange where the parties reach agreement can be a legally binding contract.  Written contracts are best because the writing memorializes or documents the terms of the agreement. And because contract can be enforced by a court, they can be very powerful.

35 Conferette

Music Legal Checklist presentation:

Thursday, March 10
3 to 4:30 at Denton Banter
219 West Oak Street
Denton, TX 76201
Banter: (940) 565-1638
Tamera’s cell: 972-333-8254

Banter is 1 block NW of the Square in Denton.

How Long Does a Copyright Last?

            Copyright duration or term is a complicated question depending on when the work was created and whether the work has been published or registered, and when. Law on copyright duration was changed by the Sonny Bono Copyright Term Extension Act of 1998.  As a brief overview:

            For works created on or after January 1, 1978 (today for example) the term is the author's life, plus an additional 70 years after the author's death.  For works co-authored, the copyright term is 70 years after the last surviving author's death.  For works made for hire, anonymous and pseudonymous works the copyright duration is 95 years from publication or 120 years from creation, whichever is shorter.

            For works created and published before 1978, the rules are complex and depend on whether the copyright has been renewed.  Under the law in effect before 1978, a copyright lasted for a first term of 28 years from the date of copyright.  A copyright could be renewed for an additional 28 years.  If no renewal was filed, the work entered the public domain after the initial 28 years. 

            Now, for works published with a copyright notice between 1923 to 1963, and the copyright owner got a renewal, the work has a 95 year copyright term.  For works published with a copyright notice between 1964 to 1977, a renewal is not needed, and the work automatically has a 95 year term. 

For works created before 1978, but not published, with exceptions, the copyright term is life of the author plus 70 years, or 95 years from publication or 120 years from creation, extending at least until December 31, 2002, whichever is longer.  For works created before 1978, but published between January 1, 1978 and December 31, 2002, the copyright term is life of author plus 70 years or December 31, 2047, whichever is longer.

Lastly, the easiest Copyright duration rule is that for works registered or published prior to 1923 – the copyright has expired and all such works are in the public domain.

Because copyright duration is complicated, please consult a legal professional with any specific issues.  Next time I will talk about transferring copyrights.