Copyright
Limited duration monopoly
Article 1 Section 8
To promote the Progress of Science and useful Arts, by securing for limited times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries
To Acts
1909
1976 (Effective Jan 1, 1978)
Copyright notice
c Year of Copyright, Copyright owner
Exclusive Rights
- Reproduce
- Distribute
- Perform
- Derive
- Display
- Perform by means of digital audio transmission
Exceptions of exclusive right
Cable TV rebroadcast, PBS, Jukeboxes, Digital performance records, phono records and digital downloads of non-dramatic compositions
Mechanical Royalties
Paid for the sale of phono records, royalty is set by the Copyright Act (9.1 cents)
Compulsory license- Section 115
-Owner can determine first use
-Must issue licenses thereafter if fits all categories
(non dramatic musical work, previously recorded, previously distributed as a phono record, new recording does not change the basic melody or fundamental character, new recording only use in phono records)
Ownership
- 2 writers-joint work
- Work for hire- work is within your scope of employment
- If not within scope of employment, to be a WFH must meet the following:
1. commisioned
2. created under written agreement
3. created for use in one of the following - motion picture for other A/V work
- collective work
- compilation
- translation of a foreign work
- supplementary work
Collective works
Collection of individual works, each of which is capable of obtaining copyright
Compilation
Where the parts are separately copyrightable
Supplementary work
IE intro to a bok
Duration of Copyright act of 1909
- Initial term of 28 years from publication
- Renewable for 28 more (failure to renew=PD, dead writer/heirs or publisher could renew)
- Total 56 years-> public domain
- Designated with EU and EP numbers
Duration of Copyright Act of 1976
-1909 act works until 12/31/1977 First term: -had to be renewed -47 more years -total of 75 years Second term: -automatically extended from 28 to 47 Second term expired-> public domain
Amendments to Copyright Act
DMCA
-Digital Copyright Act
-Set compulsory licesnse for webcasting
Sony Bono Copyright Term Extension Act 1998
-Add 20 years to term
Digital Performance Right in Sound Recordings Act 1995
-Extended compulsory license to include digital distribution
-Created right for artist and labels to get a performance right
Administrator
- Does not own copyrights,
- Takes care of copyright registration, issuing licensing, collecting royalties, accounting to publisher or publisher and writers
Publisher
- Owns copyrights
- Does everything admins do
- Nurtures and develops songwriters
- Exploits material
Administration Department
Copyright-Licensing-Royalty-Accounting-Legal
Creative Department
- Song pluggers (nurtures and develops talent, writers, artists)
- Sync
- Special products
Major publishers
- International in scope
- Record label affiliation (Sony, Warner, Warner/Chappell, Universal)
- Independent, no major label affiliations (peer music, Kobalt), Hedge Fund Companies (Ole, Round Hill), Smaller companies, one office (Big Yellow Dog, Big Loud Shirt, Mucho Love), Label affiliation indies (Broken Bow/Magic Mustang, Black River Entertainment)
Administration Agreement
- Asset management
- Done by admin or pub company
- minimum 3 year
What deals all have provisions?
Royalty, accounting, warranty-guarantee
Per Song Agreement
- Individual song or small group of songs
- Single or multiple writers (must be same writers on all songs)
- Advance (maybe, exploitation period with reversion)
Exclusive Songwriter Agreement
- Cannot write for someone else
- Defined term
- Includes all songs written during term
- Advances
Exclusive Songwriter Co-Pub agreement
- Same as exclusive songwriter agreement PLUS
- Copyright ownership
Writer is looking for
Protection of rights -proper registration (copyright, PRO) -aggressive licensing Exploitation Accurate accounting and payment
Types of Income
- Mechanical
- Performance
- Synchronization
- Grand Rights
- Foreign
Performance Income
Radio, TV, streaming, restaurant, bar, club, concert, aerobic center, mall
-collected by PRO’s
Performance income Cashflow:
Songwriter and publisher
Mechanical Royalties
Legal downloads, CD, DVD, singing dolls, greeting cards
-mechanical royalty cashflow (retail,Etail, CD’s, record co, mechanical royalties)
Administration
Retail, Etail, CD’s, Record Co., Mechanical Retails (HFA Pays In, Publisher-songwriter)
Illegal Download Hurts
Retail, Record Label, Mechanical Royalty, Publisher, Songwriter
Synchronization Royalties
Movies, TV, Videos, Commercials
3 types of songs
- Written specifically for the project
- Previously written, unrecorded
- Hit song
All sync licenses are fully negotiable
Sync fees, term, territory, media, DVD/Home video buy out (Film and TV), exclusivity
Film
When licensing a previously released recording
- Master rights from label (p)
- Rights to the underlying composition from the publisher
- Most favored nations (MFN)
Commercials
-Ad agency is the “producer”
-Jingle company (“turn key” jon-write+record music, deliver finished product)
-c never transferred to the agency
-AFM and AFTRA/SAG payment in 13 week cycles (quarterly)
Term (13 weeks to 1 year cycle, fee increases with the exercise of options-media and territory)
The pitfalls of synchronization
- Music can become too closely aligned to a product
- Can be the “wrong” choice for a scene or movie
Phonorecord
Includes the material object in which the sounds are first fixed (Digital downloads, CD’s, Vinyl, 8track, 78’s, MP3, WAV, AIFF, etc)
Mechanical income and licensing
- Compulsory licensing Mechanical license
- Mechanical License (Issued by publisher)
Compulsory License
- Retrieved from Copyright Office
- Section 115
- First use: “Once a song has been recorded and released to the public, the copyright owner must license it to anyone who wants to use it in a phono record, for a specific payment established by the Copyright Law”
- Owner required to issue a the license if it fits all following: non- dramatic song, previously recorded, phonorecord of recording distributed publicly, new recording does not change the melody, new recording only used in phono records)
Mechanicals
- “Monies paid by a record label for the right to use a song on a record”
- Mechanical royalty payment depends on the following facts (Date of release, artist, length of recording, record numbers, territory, audit provision)
Statutory Rate
- 9.1 cents or 1.75 cents per minute of playing time
- 6:00 song-10.5 cents
- 6:01 song-12.25 cents
Mechanical Royalty Example
- Traditional writer/publisher split=50/50
- Formula from the label: units sold X mechanical royalty= royalty due
- Publisher pays the writer: royalty received X writer share= writer royalty OR royalty received X .5=writer royalty
- royalty received - writer royalty=retained publisher share
Customary adjustments
75%- mid priced product, controlled composition
50%- budget line product
Methods of Licensing
- Self
- Harry Fox Agency, inc. (HFA)
- CMRRA
Royalty payments
Calendar quarter basis
Reserves
Label holds 50% of units shipped as reserves against returns
Controlled composition
If the recording artist or producer has: written or co-written a song, has ownership in a song, control of a song, interest in any song on the album
- Mechanical rate is 75% of stat
- Does NOT apply to digital sales
75% of statutory rate
- date of recording contract
- at the time of recording
- at the time the master is delivered
- at the time of the release
- Rate NEVER increases