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.