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.

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.