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.

Music in Movies, TV and Advertisements

Any time a song is used in a movie, tv or advertisement there are two licenses required:

Synchronization (synch) License: This license must be obtained from the songwriter or publisher (if the writer has assigned his/her rights to a publisher) of the composition.  A Synch License gives the movie or tv producer the right to synchronize the composition (not the recording of the song, but the underlying composition – lyrics and melody) with the moving images in the movie, tv show or ad.  The fee for a Synch License is negotiated between the movie or tv producer and the songwriter/publisher. 

            Master Use License:  The movie or tv producer also must obtain a license from the  person that owns the copyright to the sound recording (the version of the composition found on a CD).  Typically, a record label owns the sound recording copyright and thus holds the master use rights.  If there is no label, the recording artist usually owns the master use right.  The fee for a Master Use License is negotiated between the movie or tv producer and the label/recording artist. 

So, for an artist/songwriter who has not assigned their publishing rights and self-releases their own record (without a label), the movie or tv producer negotiates “both sides” - the Synch License and Master Use License - with the artist/songwriter directly.  If the artist has a publisher and a record deal, the movie or tv producer negotiates with the publisher for the Synch License and the label for the Master Use License. Either the master use rights holder or the publisher/songwriter can refuse to grant a license and the recorded song then cannot be used. 

The license fee paid by the movie or tv producer is typically split between the publisher/songwriter for the synch rights and the label/recording artist for the master use rights.  When the movie, tv show or advertisement containing the licensed song is publicly performed (broadcast on tv), a performance royalty is generated for the publisher/songwriter, typically paid by ASCAP or BMI.  There is no performance royalty from public performance in movie theaters.

What Are ISRC and ISWC Codes?

I’ve talked about how ASCAP and BMI pay publishing royalties when a composition is publically performed.  And that Sound Exchange is the organization that pays a digital performance royalty when a sound recording is played on internet or satellite radio.  But, how do these organizations know when a song (composition and sound recording) has been played.  Traditionally it was done by surveying and referring to music industry charts.  But now technology is playing a big role.

            When a song is played on the internet, satellite radio, and even traditional radio, that play is tracked by reference to a digitally encoded number in the metadata of the song.  That is, a unique number that is given to a song, that is not seen or heard, but within the digital coding, and that can be identified and referneced electronically.

            The digital reference systems becoming common in music are the ISRC and ISWC numbers.

            ISRC means international standard recording code.  ISRC numbers identify sound recordings.  ISRC numbers allow radio stations and digital broadcasters to automatically credit a label or publisher with a play and download sales sites to track sells.  An ISRC number can be thought of as being an electronically encoded bar code.  You can get more information at www.usisrc.org.

            ISWC means international standard music work code.  ISWC numbers identify musical works – the composition or underlying song.  ISWC numbers are a unique and permanent reference number for the identification of musical works.  ISWC numbers are used by to identify when a composition has been publically perofmed.  For more information see www.iswc.org.

            Use of ISRC and ISWC numbers is growing in importance.  Songs without ISRC or ISWC numbers are much less likely to be credited for being played.  Labels and artists should ensure that all versions of their sound recordings are properly coded.  ISRC and ISWC coding is supported by most mastering software. 

What Does Sound Exchange Do?

I’ve described how a song contains two different legal elements: 1) the underlying song or composition; and 2) the recorded performance of the song.  Whenever a song is performed a royalty is owed to the songwriter (or the songwriter’s publisher) for the use of the underlying song or composition.  ASCAP and BMI collect and administer that royalty.

So how does a recording artist get paid when the record performance gets played?  Traditionally, when a sound recording gets played on the radio or in a business, no royalty is owed for the use of the sound recording.  That is, the sound recording artist (the band) and its label do not get paid for the use (playing) of the sound recording.  Only the songwriter gets paid a royalty for the use of the composition.

However, the Digital Performance in Sound Recordings Act of 1995 and the Digital Millennium Copyright Act of 1998 granted a performance right for sound recordings.   But it only applies to digital transmissions – internet and satellite radio must pay the sound recording owner (label or band) for the performance of the sound recording.

Sound Exchange is a private, non-profit organization authorized to administer and collect the performance royalty for digital plays of the sound recording.  Sound Exchange issues licenses to internet and satellite radio and collects a fee.  Sound Exchange monitors play of songs on internet and satellite radio.  Sound Exchange then pays the sound recording copyright owner (label), the performing artist (the band), and even featured performers, a royalty based on the number of plays a song receives.  And although the royalty rate is fractional, many plays can add up to significant revenue.

Because the performance right for sound recordings only applies to digital transmission, traditional radio and businesses do not have to pay a royalty for use of the sound recordings they play.  This was traditionally seen as good promotion for the artist.  But most songs receive the majority of its play on traditional radio and in retail, restaurants, bars and clubs.  A major war is going on in Congress between record labels and artists against corporate radio over the Performance Rights Act, which would apply the royalty for use of the sound recordings to traditional radio and others.

Next time:  What is an ISRC and an ISWC?

Who Is Harry Fox?

Last time I discussed how Mechanical Royalties are moneys a songwriter receives when another artist records their song.  When an underlying song (composition) is recorded and reproduced a Mechanical Royalty is owed to the owner of the underlying song (publisher and/or songwriter) for the use of the underlying song.  The Mechanical Royalty is typically paid by the record label to the song writer or publisher for use of the underlying song in a recording.  The same mechanical royalty applies for digital downloads (internet) or physical (cd or album) reproductions of a song. 

If you are recording a song that you wrote, your label owes a Mechanical Royalty to your publisher (more on this in the next issue).  If you record a cover version of a song that has already been recorded, you or your label must obtain a mechanical license and pay a Mechanical Royalty to the publisher/songwriter of the underling song. 

            Harry Fox Agency is a private company that issues mechanical licenses and collects mechanical royalties.  Publishers or songwriters sign up with Harry Fox Agency.  When a recording artist wants to record a song represented by Harry Fox Agency, the artist or label contacts Harry Fox Agency, who issues the mechanical license.  The Harry Fox Agency then collects the Mechanical Royalty, for the use of the underlying song, and pays the publisher or songwriter.

            That is how a songwriter gets paid for the use of his/her song when it is recorded.  The Harry Fox Agency coordinates issuing Mechanical Licenses and collecting Mechanical Royalties.  To record a song not listed with the Harry Fox Agency, a recording artist must contact the publisher or songwriter directly and obtain a mechanical license. 

            In the next Night Light newsletter I talk about what happens with Mechanical Royalties when you record your own songs. 

What Do ASCAP and BMI Do?

As we have talked about before, a song contains two distinct legal elements that implicate different rights, different royalties and different revenue streams: 1) the underlying song or composition; and 2) the recorded performance of the song.        The composition 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 recordings of a song, but only one composition.  ASCAP and BMI are only concerned with the composition, and the rights, royalties and revenue generated by use (performance) of the composition. 

ASCAP (American Society of Composers Arrangers and Producers) and BMI (Broadcast Music, Inc.) are private, independent organizations that are owned by their member songwriters and publishers.  Congress has granted ASCAP and BMI the right to administer royalties for use of compositions.  Almost every time a composition is performed – live, on the radio, television, internet or other media, the songwriter is entitled to a royalty for the use of the song, which is usually called a performance royalty or publishing royalty.  (17 USC 106)  So how does that work:

Songwriters usually sign with a music publisher (or can be their own music publisher), giving the music publisher the right to administer some or all of the songwriters compositions.  Music publishing deals are historically 50/50 between the songwriter and music publisher, but there are many different types of deals. 

The music publisher then associates with ASCAP or BMI and tells ASCAP or BMI what songs the music publisher controls and who the songwriters are.  ASCAP and BMI issue a blanket license to the venues, bars, restaurants, radio, television, internet broadcasters for the use of the compositions in ASCAP and BMI’s respective catalog.  (A download is treated like a sale and does not generate a performance royalty.  An internet stream is a performance and generates a royalty.)  The blanket license fees are set by ASCAP and BMI, who consider the size of the audience, among other things, in setting the fees. 

ASCAP and BMI then survey the number of performances of each composition.  The songwriter gets paid for performance no matter who the recording artist is – Lennon/McCartney get paid a performance royalty when the Beatles recording of Help is performed and when the Deep Purple, Dolly Parton and Tina Turner recording of Help is performed.  A fraction of a penny is paid for each performance of a composition.  But with the huge number of venues, bars, restaurants, radio, television, internet broadcasters playing a popular song, the composition can generate a large amount of performance royalties.   ASCAP and BMI then pay the music publisher who controls the composition.  The music publisher then calculates the royalties owed among the compositions’ songwriters (if more than one), and pays the songwriters their share.  (Music publishers do other things also.)

Next time:  How does a recording artist get paid when their recording gets played?

What is a Song?

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. The two parts of a song are: 1) the underlying song or composition; and 2) the recorded performance of the song.

            The 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 recordings of a song, but only one underlying song or 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 underlying song or composition, unless sold or licensed to a music publisher.  Every time the underlying song is performed, live on the radio, television, internet or other media, the songwriter is entitled to a royalty for the use of the song, which is called a performance royalty or publishing royalty.  (17 USC 106)  The performance or publishing royalty is typically collected by ASCAP or BMI, usually through a publisher who pays the songwriter.

            The recorded performance of a song is a different copyright and different royalty.  Unlike the underlying song, there can be many recorded performances of Help by many bands, including the Beatles.  The recorded performance of the song is usually owned by the person paying for the recording – a music label or the recording artist if no label.  The label pays the artist who records the song a royalty based on the sales of the recording, called a sales royalty or artist royalty.  The amount of the sales or artist royalty is negotiated between the label and artist. 

            There is also a royalty owed by internet, digital or satellite broadcasters who play a recording of a song for use of the recording, usually called the Digital Royalty.  The Digital Royalty is collected by Sound Exchange.  The Digital Royalty is paid to the recording owner (usually the label) and is based on a statutory amount.  (14 USC 114(d)). 

            Lastly, there is the Mechanical Royalty, which is a royalty paid by the record label to the song writer or publisher for use of the underlying song in a recording.  The amount of the mechanical royalty is $.091 for songs 5 minutes or less, based on each recorded copy of the song.  (17 USC 115).  The same mechanical royalty applies for digital (internet) or physical (cd or album) reproductions of a song. 

            That is just the basics.  Over the next several Night Light newsletters I will address the many details and sub-issues raised by each of these royalties and begin to paint a picture where the art, business and law of music combine.

How Does a Songwriter Get Paid When His/Her Song is Recorded?

Last time I discussed “what is a song” and explained that a song contains two distinct legal parts: 1) the underlying song or composition; and 2) the recorded performance of the song.

            The underlying song is notes on a page of written music, the composition or that thing created by the songwriter.  There can be only one underlying song or composition.  Every time an underlying song is performed the songwriter is entitled to a royalty, which is called a performance royalty or publishing royalty, typically collected by ASCAP or BMI, usually through a publisher who pays the songwriter.  The recorded performance of the song is usually owned by the person paying for the recording – typically he label - who pays the performing artist a royalty based on sales of the recording.  There can be many recorded performances an underlying song. 

            So how does a songwriter get paid for the use of his/her song when it is recorded by artists?  This is the often misunderstood Mechanical Royalty. 

A bit of history:  Before recorded music, in the 1900s songs got popular on the vaudeville circuit.  Musicians would buy the sheet music to perform songs.  The sheet music was published by music publishers, who then paid the songwriter a percentage of the sheet music sales.  Then player pianos were invented.  Player pianos used a thick piece of paper punched with notches that caused the piano keys to play the song – a mechanical process.  Live piano players were no longer necessary and sheet music wasn’t being sold as much.  But the underlying song was being reproduced or performed by the piano scrolls used by player pianos.  The publishers lobbied Congress and the Mechanical Royalty was created.  The Mechanical Royalty was a royalty that the manufacturers of the piano scrolls were obligated to pay to publishers for use of the underlying song.  When albums and tapes were invented, the mechanical royalty was extended to those formats, which were also mechanical reproductions (a needle in a groove and electrical current from tape to tape head).  When cds were invented there was no mechanical process involved (only digital code), but in the 1980s, after much debate, the mechanical royalty was extended to cds.  And the same thing happened with digital downloads.

            When an underlying song is recorded and reproduced, in any format, a Mechanical Royalty is owed to the owner of the underlying song (publisher and/or songwriter) for the use of the underlying song.  The Mechanical Royalty is typically paid by the record label to the song writer or publisher for use of the underlying song in a recording. 

The amount of the mechanical royalty has increased over time and is now $.091 for songs 5 minutes or less, based on each recorded copy of the song.  (17 US Code 115).  The same mechanical royalty applies for digital downloads (internet) or physical (cd or album) reproductions of a song. 

            The Mechanical Royalty is somewhat difficult to grasp, but first understanding the different rights and royalties for an underlying song or composition and a recorded performance of a song is the first step.  This is just a basic outline.  Over the next several Night Light newsletters I will address more about Mechanical Royalties and other royalties that can provide revenue to songwriters, publishers and recordings artists.

How to Register a Copyright

We’ve recently discussed what a copyright is and when it is created, and what rights a copyright provides.  But how do you register a copyright?

You register a copyright a www.copyright.gov.  That is the US Copyright Office website.  There is no other website where you can personally register a copyright.  Registration is $35 per submission (for songs a submission can be up to 80 minutes of songs by the same songwriters).  Paper submission is now an $80 fee. All other websites are other companies trying to make money off you. 

The copyright.gov website contains much good information that can be overwhelming and the registration interface is good, but still somewhat confusing.  After completing the online registration form you can either upload or mail to the US Copyright Office a copy of the artist work being copyrighted, such as a cd or manuscript.  For songs, the composition (PA copyright) and sound recording (SR copyright) can be done together, for one fee, or separately if the songwriter and recording artist are different.

Copyright registration serves two important purposes.  The first is to establish a verifiable record of the date and content of an artistic work.  Once the copyright of an artistic work is registered there is an official government record, that carries a presumption of accurateness, regarding when you created the artistic work. 

The second reason is that copyright registration entitles the copyright holder of statutory damages of up to $150,000 per infringement in cases of copyright violation.  In the case your artistic work is misappropriated the chance of recovery of substantial damages are much greater if the artistic work is formally copyrighted. 

Remember, the registration of the copyright is not the same as the creation of the copyright.  The registration is a formal method to put the world on notice of your copyright and secure the right to damages if your copyright is violated.

What about the poor-mans copyright – mailing a copy of your artistic work to someone who keeps the envelop sealed?  It is not the same as registration.  It may be evidence of a date of creation, based on the post-mark, but is not a verifiable government record.  There is no notice to the world of your copyright.  And most importantly, you would not be entitled to the statutory damages, but much lower common-law damages.

 Next time I will discuss the duration of a copyright. 

What is a Copyright?

After a short break, I am back.  In the next several issues of The Night Light, I intend to review the basics of copyright.  Copyright is a creation of law, an ownership right created by Congress.  Under the Copyright Act of 1976 artistic works created in the United States are given special rights and protections.  The copyright law protects:

…works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device… 17 U.S.C. § 102.

            What this means is that that an artistic work must be fixed – that is written down, recorded, or somehow preserved outside the brain of its creator.  When the artistic work is fixed, the creator owns the copyright in the artistic work.  Because the artistic work must be fixed, copyright does not protect ideas or concepts.  Copyright only protects the expression of ideas or concepts.   For example, Johnny Cash’s lyrics and melody to “Folsom Prison Blues” is copyrightable.  But the idea of an imprisoned man longing for release is not. 

The Copyright Act contains eight categories of artistic works that can be copyrighted:

            1.         literary works;

            2.         musical works, including any accompanying words;

            3.         dramatic works, including any accompanying music;

            4.         pantomimes and choreographic works;

            5.         pictorial, graphic, and sculptural works;

            6.         motion pictures and other audiovisual works;

            7.         sound recordings, and

            8.         architectural works.

In sum, copyright can be obtained for artistic works in those eight general categories.  Copyright can be obtained when the artistic work is fixed, but not the mere idea or concept.  And, the creator owns the copyright in the artistic work when it is fixed.

            Next time, what rights does copyright provide.