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 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.

Copyright Rights

What are the Copyright Rights?

Last time we talked about how copyright can be obtained for artistic works, 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.  But what rights does copyright provide?

Rights under a copyright are a creation of law, rights created by Congress.  Section 106 of the Copyright Act gives six specific exclusive rights to a copyright owner: 

1. to reproduce the copyrighted work;
2. to prepare derivative works based upon the copyrighted     work;
3. to distribute copies of the copyrighted work to the public;
4. to perform the copyrighted work publicly;
5. to display the copyrighted work publicly; and
6. for sound recordings, to perform the copyrighted work publicly by a digital audio transmission.

          Under the reproduction right, no one other than the copyright owner may make any copies of an artistic work.  A derivative work is a work based upon a preexisting artistic works that is transformed, or adapted, such as transformation of a novel into a motion picture.  Distribution is the right to make an artistic work available to the public for sale, rental, lease, or lending.  

         The public performance right allows a copyright owner to control when an artistic work is performed publicly.  Public performance includes television and radio broadcasts.  The public display right is similar to the public performance right.  And the right to perform the copyrighted work publicly by a digital audio transmission made digital broadcasts similar to the public performance right. 

These exclusive copyrights rights are different from the rights of a person who buys a copy of an artistic work.  Buying a copy of an artistic work gives a property right in a copy, and the copy can be sold.  But the buyer does not own any part of the copyright.  

As an example, when a person purchases a song, on a compact disc or as a download, the person has received a property right in a copy of a copyrighted work (the song).  The person buying the song does not receive any copyright rights when the person purchases the song.  The copyright rights are held by the song’s creators (writers and performers) until the song’s creators specifically transfer them to a record label and/or music publisher.  

The person who bought the song may not make copies of the song for distribution, because the right to reproduce and distribute the song are exclusive rights granted under the Copyright Act.  But a copyright owner can sell copies of an artistic work, without giving up the copyright rights.