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From: daver@felix.UUCP (Dave Richards)Subject: US Copyright (was Re: Dealing with ASCAPDate: 23 Apr 91 00:39:33 GMT

THE COPYRIGHT LAW AND THE MUSICIAN David RichardsA Guide to the 1976 Copyright Law, Revised 6/90updated to include the 1988 "Berne Act" 4/22/91 posting

INTRODUCTION

This article describes the United States Copyright Law insofar as it relatesto musicians (including singers) and members of organizations which utilizemusic, such as schools, churches, amateur and professional musical groups orclubs, etc. Information on the various licenses required to perform or recordmusical works is included, however this is not a step-by-step guide. Morecomplete information is available from the sources listed at the end of thearticle. For legal advice consult a copyright attorney.

From time to time a case will come before the Court which will result in aruling on "fair use", which means a use of copyrighted material for which per-

mission is not required. One example of this is the decision allowing the tap-ing of radio and television broadcasts in the home. These decisions are notincorporated into the law, but must be considered along with it. Some of theserulings are included below, where appropriate.

SECTION I: What is Protected by Copyright

The idea behind the law is that the product of a person's mind (in this casea musical composition) is just as much his or her property as the product ofa person's hands. Nobody works for nothing, and authors and composers haveto pay for rent and food just like everyone else. If they could not earn en-ough from creative work such as writing songs which the public likes, theywould be forced to work at something else. The result would be much less mu-

sic for everyone to enjoy. The copyright law exists to ensure that songwriters(and other writers) can make a living at it, and to protect their creationsfrom misuse.

The first U.S. copyright law was enacted in 1909, and took effect in 1910.Any musical work published prior to 1910 is in the public domain (it has nocopyright protection). A work published between 1910 and Dec 31, 1977 may beprotected under the 1909 law, but there are several ways that protection couldhave been lost. The protection for a work published under the 1909 law lastedfor 28 years at which time it could be renewed for another 47 years.To retain copyright protection, the copyright holder MUST actively prosecuteall known infringers. If infringement is allowed or ignored by the copyrightholder, the work will be considered to be in the public domain. As a result,

many infringements are prosecuted that woule otherwise be considered minor,and not worthy of the effort.

Also, under the 1909 law a copyright notice must appear on all printed copiesof the work. If that wasn't done, or if the copyright hasn't been renewed,or actively exercised by the owner, or if the total 75-year period has expired,the work is in the public domain. However, a new arrangement of a public do-main piece would be subject to copyright protection.

The copyright law was essentially rewritten in 1976, and the new law took ef-fect January 1, 1978. The 1976 law was not retroactive, in other words it did

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not restore copyright protection to any work that had fallen into the publicdomain. Once copyright protection is lost, it can never be regained. For com-positions (or arrangements) published after January 1, 1978, the copyright iseffective until 50 years after the death of the author(s). If the author re-mains anonymous or the work was created for hire, the copyright is effectivefor 75 years from the date of first publication.

As if those weren't enough laws to keep track of, the United States has recent-

ly entered into an international treaty, the Berne Convention for the Protec-tion of Literary and Artistic Works. This caused some changes to the existinglaw and took effect on March 1, 1989. One of the revisions to the law made asa result of the Berne Act was the elimination of the requirement to put a copy-right notice on all copies of a published work. For works published for thefirst time after March 1, 1989 the inclusion of the C inside a circle (or Pinside a circle for a recording label) is purely voluntary. Its omission won'tcause a loss of copyright protection. However, publishers are encouraged tocontinue including it. One reason is to make it easier to prove "wilfullinfringement" in a suit for damages, resulting in a higher award amount by thecourt. For works first published prior to March 1, 1989 the notice must stillbe included in order to preserve protection, even in future printings.

At present, a copyright exists from the moment the work is first written down,whether a copyright notice is included or not. However, the work must be reg-istered with the U.S. Copyright office before an infringement case can be init-iated.

The copyright holder might be the original writer of a piece, or someone whohas been assigned ownership through contractural agreements (such as a publish-er). The copyright holder has the following EXCLUSIVE rights as defined inSection 106 of the 1976 law:

1. To reproduce the copyrighted work in copies or recordings.2. To prepare derivative works based upon the copyrighted work.

(A musical arrangement is a derivative work.)

3. To distribute copies.4. To perform the work publicly.5. To display the work publicly.

An infringement occurs when someone other than the copyright holder assumesone of these rights without permission. As musicians we are mainly concernedwith items 1 through 4. These items are addressed in more detail below. Theyare divided into sections on copying, arranging, recording, and performing.

It is often asked how much a person may use of a copyrighted work without itbeing considered an infringement. Everyone seems to have their own rule, butthis is not called out in the law. It is open to the interpretation of thecourt. So ANY recognizable passage is risky (samplers take note). The single

exception is for a teaching situation as described below.

SECTION II: ON PAPER -- Copies and Arranging

A. Copies

For the purposes of this section, "copying" could mean photocopying, photo-graphing, writing music out by hand, or any method of duplication that resultsin a visually-perceptible copy. It is considered visually-perceptible evenif a machine is required to read it, such as a computer or microfilm reader.

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The law not only prohibits anyone other than the copyright holder from makingcopies (#1 above), but also prohibits distribution of copies (#3). In otherwords, one could be prosecuted for both as separate offenses. Or, if illegaldistribution was taking place on a large scale, the printer could be prosecutedunder section 106(1), and the distributor under section 106(3).

B. Arranging

You may not create an arrangement of a copyrighted work without written per-mission from the copyright holder (usually the music publisher in this case).This permission must be obtained before starting work. If permission isgranted to do an arrangement, it will allow the arrangement and a limitednumber of copies to be made in exchange for a fee. It is important to rememberthat even if permission is granted, YOU DO NOT OWN YOUR ARRANGEMENT. It re-mains the property of the copyright holder. If a greater number of copies weremade of the arrangement than permission was given for, they would be regardedthe same as any other illegal copies.

You may secure permission to do an arrangement from the copyright holder dir-ectly, but you may find it easier to do this through a representative. TheNational Music Publishers Association created the Harry Fox Agency specifically

to act as an intermediary between publishers and the music user. (see the ap-pendix for address.)

Summary of things you may not do with copyrighted material on paper:

You may not copy printed music that you have purchased, except asnoted below under "Fair Uses".

You may not copy someone else's illegal copy.

You may not write down the words or music from a recording.(transcribing)

Fair uses, or things you may do with a copyrighted work on paper withoutpermission:

For educational purposes, the instructor may make one copy per studentof up to 10% of a composition for class study, as long as that 10%does not constitute a performable unit.

You may edit or simplify a piece of printed music that you have pur-chased, provided that you do not alter or distort the fundamentalcharacter of the work, and your changes are marked directly on the

original.

You may write parody lyrics to a song, as long as you use very littleor none of the original author's lyrics and you do not write downthe music with your lyrics.

SECTION III: Recording

Note: Throughout the following section the term "recording" or "record"means any type of recording medium such as phonograph records, audio and

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video tapes, etc.

You may not duplicate a recording of a copyrighted work.

You must have permission to record a performance of any copyrighted piece ofmusic. However, you may make one and ONLY one recording of a performance forstudy, critique, or archival, etc. (Section 107)

Producing an album for sale:

You must have permission to produce a record of a copyrighted work. The copy-right holder may refuse to allow a work to be recorded, however once permissionhas been granted to someone, it cannot be withheld from anyone else. So if thearrangements you wish to record have ever been recorded before (in any style),you will automatically get permission. Permission is given in the form of a"mechanical license". This license is obtained by paying a fee to the copy-right holder. Once again you can avoid having to deal with each artist ormusic publisher individually by using the Harry Fox Agency.

The information required for the issuance of a mechanical license is:

1. The name of the person to whom the license is to be issued.2. The title and writers of the composition (and publishers if known).3. The performing artist(s).4. The playing time of the composition(s) in minutes and seconds.5. The release date of the recording.6. The number of copies you plan to make.

You will get a response from the agency in the form of a contract granting youthe license to record at the going rate, which is currently $.057 per compo-sition or $.011 per minute of playing time, whichever is greater, per record,tape, or CD made (as of November 1, 1989).

The Harry Fox Agency does not represent every publisher, and they cannot grant

a license for publishers that they do not represent. So the contract they sendyou may not include all your selections. For any material that doesn't appearon your contract you must negotiate with the copyright holder directly. Everyitem on your recording MUST be licensed to avoid serious legal trouble.

Rearranging a piece for a recording:

Section 115(a)(2) of the law says: "A mechanical license includes the privilegeof making a musical arrangement of a work to the extent necessary to conform itto the style or manner of interpretation of the performance involved ... butthe arrangement shall not be subject to protection as a derivative work exceptwith the express consent of the copyright owner."

That sentence is open to interpretation, but seems to say that if you have per-mission for a recording via a mechanical license, you may create an arrangementof the work for that recording. But you may not perform that arrangement anyother time or place, or claim copyright protection for it unless you have ex-plicitly been granted ownership of it by the copyright holder.

Summary of things you may not do with recordings without permission:

Duplicate them.

Transcribe from them (write down the music or lyrics, see above).

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Play them over a PA system to a large group of people (see performing).

Make a recording of a performance for sale.

Things you may do with recordings of copyrighted works:

You may make one recording of your performance for review or archival.

You may purchase a recording and play it for your own entertainment.

You may loan, give or sell a legal recording to someone else, just likeany other property. (you own the physical recording, but not thesounds that it contains.)

SECTION IV: Performing

This section is included for the benefit of individuals or groups that put onpublic concerts or shows.

According to the law almost every public performance of a copyrighted work re-quires a license for that purpose. The exceptions are clear:

1. Performances in the course of religious services at a place of worship.

2. Face-to-face teaching activities at a non-profit educational institution.

The law defines a "public" performance as one "at a place open to the publicor at any place where a substantial number of persons outside the normalcircle of a family and its social acquaintances is gathered." The courthas found that even a performance at a private club is a "public" performance.The law requires a license not only for a performance by live musicians, but

also for performances by means of a record or tape player, or radio-over-loud-speaker system.

If a performance takes place without a license, it is the owner of the estab-lishment that is liable for copyright infringement, not the musician. However,if an organization has rented a hall or auditorium for a performance by payinga fixed price, the court has found that the renting person(s) is liable for theinfringement, since the establishment owner had no share of the profits (andpresumably no control over what material was performed).

Organizations exist for the purpose of issuing licenses to perform. The mainones are ASCAP and BMI. They take care of distributing the show royalties totheir publisher members, which immensely simplifies the work of the person

organizing the performance.

Some music publishers are represented by ASCAP, some are represented by BMI,and some are represented by both. ASCAP is the older organization, and rep-resents some 40,000 authors, composers and publishers. BMI is newer, butlarger, having over 80,000 members. To determine if your material is ASCAPor BMI, you may contact the indexing department of the ASCAP and BMI officesclosest to you. There are offices for both organizations located around thecountry. To find them, contact the head office listed below, or consult thetelephone directory if you live near a major city.

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ASCAP and BMI do not issue licenses for dramatic musical purposes, such asopera, ballet, musicals, or any performance that includes a story or plot,dialog, dance, pantomime, etc. Permission for these types of performancesis still required, but must be obtained from the copyright holder directly.However, a concert including excerpted musical works from a dramatic show (orshows) would be covered by an ASCAP or BMI license.

Most auditoriums, clubs, lounges, etc, already have blanket licenses from both

ASCAP and BMI. As a musician, the only time you should be concerned about thisis if you rent a hall or auditorium for a public performance, or if you give apublic performance on your own property.

C. Music in Motion Pictures and Television

Although this probably applies to very few people reading this, it is includedfor completeness. The recorded use of music in combination with visual images("synchronization") doesn't fall within the scope of the compulsory licenseprovisions of the Copyright act. This means that each of these uses must benegotiated individually with the copyright holder. This may also be done usingthe Harry Fox Agency synchronization department as an intermediary.

Summary on performing:

You may not perform any copyrighted work in public without permission,given in the form of a license.

Performing you may do without a license:

You may perform for family or friends a legal arrangement that you havepurchased, or one that you learn by listening to a performance or arecording (but remember not to write down the music or lyrics).

SECTION V: Penalties for Infringement

The minimum fine for "innocent" infringement is $200 per infringement. Withthe passage of the Berne act, the maximum fine has been raised to $20,000.For "wilfull" infringement the maximum fine is now $100,000. Each unauthorizedperformance, recording, or paper copy of a work is a separate offense. Forexample, if you made ten copies of something, or performed it ten times, youcould face a fine of one million dollars. This is the statutory rate. It isthe choice of the copyright holder whether to accept the statutory amount orto request the actual damages including court costs and attorney's fees.

If it is a corporation that infringes, not only is the corporation liable, butthe officer of the corporation that is responsible for the infringment is also

PERSONALLY liable. He/she cannot hide behind the corporate status. You shouldalso be aware that according to federal law a fine for "wilfull injury" cannotbe discharged by bankruptcy. So there is no escaping a fine of this type.

APPENDIX: CONTACTS

For a license for musical concerts and other non-dramatic performances contact:

American Society of Composers, Authors and Publishers:

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ASCAP (212) 595-3050One Lincoln PlazaNew York, NY 10023

- and/or -

Broadcast Music, Inc.:

BMI (212) 586-2000320 W. 57th Street (800) USA-BMI1New York, NY 10019

For permission to do an arrangement, a license to record, or a license toproduce a dramatic show incorporating music, contact the particular musicpublisher(s), or:

The Harry Fox Agency, Inc. (212) 370-5330205 East 42nd StreetNew York, NY 10017

If you would like your own copy of the copyright law, or for information aboutthe copyright status of a particular work, or if you would like an applicationform to register your own composition, recording, or your arrangement of apublic domain work:

The Copyright Office (202) 479-0700 public informationLibrary of Congress (202) 707-9100 forms ordering (leave msg.)Washington, DC 20559.

The complete text of the law is included in circular #92, but there are othercirculars and information packets available containing excerpts of the lawthat pertain to a particular activity. So be specific when you inquire.

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