Rob Monath
Corporate Counsel

Napster II
Why Observe The Copyright Law?
Copyright In Sound Recordings
Music for Film, Video and the Internet
Mechanical Fees
Extension of Copyright Duration
Copyright Notice and Registration
Copyright Myths
More Copyright Info & Links

Napster II

Online music has taken several major steps toward mass market adoption in the year 2004. Digital sales are projected at $271 million dollars for 2004, increasing to an estimated $1.7 billion dollars annually by 2009.

Incredibly, Napster, which was once the scourge of content providers, and driven into bankruptcy through collective publisher/label suits against it, has re-emerged as a darling of the industry. One major reason is the Napster has teamed up with anti-piracy forces to combat illegal downloading at colleges and schools.

A new pilot program allows on-campus students at institutions such as Penn State, for example, to automatically obtain a Napster subscription as part of their tuition fees. Over 100,000 songs were downloaded in the first few hours after the program was launched on January 12, 2004, and the services are now being implemented at other schools as well.

Napster announced, late in the summer of 2004, that it is going public. Despite these successes, it will have plenty of competition from Yahoo's new music service and the impending debut of Microsoft's MSN Music Service, along with existing single song download outlets that are thriving such as I-Tunes and Wal-Mart.

Legitimate online music sites, especially subscription services, present a win-win situation for listeners and publishers: prices are lower, but publishers and composers still benefit from payment of mechanical and performance fees from downloads and streams. Maybe there is hope for the recording industry after all.

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Why Observe The Copyright Law?

Published Reports of blatant copyright infringement, such as unauthorized downloading of recordings via Napster, may leave you asking: "Why should I respect the copyright law?"

Well there are two primary reasons. First, observance is in your own self-interest. When you violate the copyright law, you risk your professional reputation. Let us assume, for example, that you direct a choir that sings from photocopied music. A choir member or other individual at your church or school who dislikes you, for whatever reason, reports you to the music publisher. Then publisher then contacts your superiors and commences and inquiry that may well culminate in the loss of your job, along with considerable embarrassment and personal liability. Some publishers (not Hinshaw) actually hire private investigators to document the infringement prior to contacting the school or church. Though this scenario may seem unlikely, careers have indeed been ruined in precisely this way.

Beyond personal self-interest, copyright compliance yields social dividends. Consider your fellow composers and arrangers, whose livelihood depends on the royalties and revenues derived from the proper purchase and use of their work product. Our Founding Fathers recognized the broad benefits to society at large of offering limited monopoly as a creative inducement. Accordingly, copyright protection is a fundamental tenet of our Constitution expressly to encourage and promote the arts.

To fully reap these benefits, we must rely on individual honor. For the same reasons that we would never visit an unattended roadside fruit stand and take a bushel of tomatoes without leaving any money for the farmer who grow them, we also observe the copyright law. When the honor system works and we pay for what we use, we are upholding our values and contributing to what makes America a great country

As you can see, observance does have important ramifications.

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Copyright In Sound Recordings

Many musicians are surprised to learn that there are actually two separate copyrights in music.

Most are aware that original works of music are protected by a copyright in the musical composition itself. Sheet music, performance rights and mechanical licenses are all covered under this copyright.

However, if a recording of a musical composition is made, then this recording is protected by a new "sound recording" copyright. A sound recording copyright protects the particular series of sounds "fixed" (embodied in a recording) against unauthorized reproduction and distribution. The sound recording copyright is completely separate from the copyright that protects the musical work featured on the recording.

A sound recording copyright even arises when the underlying musical work recorded is in the public domain. For example, if a choir records a public domain work such as Bach's B-Minor Mass, and releases it on a CD, then the choir would hold a sound copyright in its recording of the Mass. Any third-party that might want to use the choir's Bach recording, say in a commercial or a motion picture, would have to request and obtain a master use license from the choir.

The special form of copyright notice for sound recordings is the symbol "P in a circle" combined with the year of publication and the name of the owner of the copyright. For additional protection, particularly after public release, a sound recording owner may wish to register the copyright with the U.S. Copyright Office by using Form SR and paying the applicable registration fee.

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Music for Film, Video and the Internet

Music rights clearance for film and video production has grown increasing complex over the years. Particularly for popular hit songs, rights are typically cleared on a song-by-song and use-by-use basis. The process can be time-consuming and the fees, even for the use of small sound bites, can be high, depending on the selection.

Since ownership of music copyrights and sound recording copyrights is generally split between the publishers and record companies, show producers must obtain separate permission from, and make separate payments to, both entities. These payments are referred to as "sides." A television commercial producer might typically pay a minimum of $100,000 for music rights (the music side) and an additional $100,000 for master use sound recording rights (recording side) for use of a particular recorded song in a nationwide ad running for up to one-year.

The Harry Fox Agency does batch-clear groups of songs on the music side for entire shows and movies. There is no comparable clearinghouse for master use licenses. There are number of professional agencies that assist producers with music rights clearance on a project basis, but these agencies still must contact individual publishers and record companies on a song-by-song basis to receive permissions and fee quotes.

Major publishers and record labels have been very hesitant about the internet. There is tremendous concern about downloading. Very few licenses have been issued. Fees vary widely. Even where permission has been granted in principle, actual licenses have not been forthcoming because there is no accepted model yet for internet licenses.

One possible explanation for reluctance to license is a concern with endorsements. Ordinarily, one would not conclude that music playing in the background at a bar denotes any kind of sponsorship of that particular bar by the performing artist. However, many artists' representatives fear that use of a well-recognized popular music selection on a website might be construed as an endorsement of some kind by, or association between, the particular artist and the issues being promoted on that website.

As a result of the complexities and costs associated with licensing popular music, many movie, television and video producers turn to music libraries to license production music and sound effects. Music libraries hold all rights to both the music and sound recordings. They issue synchronization and master use licenses, and can also issue performance licenses directly if the licensor does not already have blanket ASCAP and BMI licenses. These libraries often have thousands of selections arranged by style and genre. Because the selections are by unknown composers and artists, the fees are usually lower than they would be for popular songs. Music libraries also have experience with multimedia and internet licenses.

At Hinshaw Music, we routinely issue synchronization licenses allowing inclusion of the music we publish in a broad range of film and video productions.

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Mechanical Fees

I recently presented a seminar on copyright law at the Iowa Choral Directors Association annual meeting. The conductors in attendance displayed an impressive sensitivity and interest in music copyright issues. In particular, there were many questions about recordings.

More and more choirs are recording their performances and releasing CD's, very often for sale. Conferences now regularly include exhibitors who specialize in producing these recordings and CD's for choirs. However, ultimately, it is the responsibility of the choir director, not the production company, to obtain necessary clearances, though some production companies do assist in the process.

The primary authorization required for creation and distribution of a recording is a mechanical license. A mechanical license authorizes the manufacture and distribution of compact discs for a specific copyrighted musical composition. A license is necessary for each copyrighted selection featured on the CD, and may be obtained directly from the publisher of the composition, or, alternatively, through the Harry Fox Agency in New York, which acts as an agent for music publishers and also issues licenses.

The statutory rate for a mechanical license is typically 9.1 cents per selection per CD (the rates are higher for longer pieces). So, if, for example, a choir's new CD includes ten selections, the total mechanical fees per CD would be $00.91 (9.1 cents X 10 selections). In this example the fees could be readily recouped by raising the sales price for the CD an additional 95 cents.

For further information about mechanical licenses, please visit our Mechanical License information at  http://hinshawmusic.com. Our site includes a link to Harry Fox, which addresses mechanical licenses in detail. And, as always, we invite you to contact us if you have any questions regarding use of our publications, for recordings or otherwise.

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Congress Passes Copyright Term Extension Act

The United States recently extended the duration of copyrights through enactment of the "Sonny Bono Copyright Term Extension Act". The Act effectively extends the term of copyright protection in the United States for an additional 20 years. By adopting a term of "life plus 70 years", U.S. law is now consistent with other territories, and U.S. works should become eligible for extended protection abroad.

Even before enactment of the Bono Extension, calculating the duration of copyright protection for a U.S. work could sometimes be confusing. This confusion arises from the fact that separate durations are prescribed under the old Copyright Act of 1909 and the new Copyright Act of 1976 (effective 1978). Under the Copyright Act of 1909, works received protection for an initial term of 28 years, and then were eligible for a second renewal term of an additional 28 years, for a total of 56 years of protection.

Then, beginning in 1978, under the new Copyright Act of 1976, a new duration scheme was created. For works created on or after January 1, 1978, protection endured for the life of the author plus an additional 50 years after his or her death. At the same time, protection was extended for works created before 1978 by extending the length of the renewal term. Pre-1978 works were now eligible for protection for a period of 75 years from the date of first publication. Special terms were also established for "works made for hire" and unpublished works.

In the past 20 years, many early 20th century musical compositions have fallen into the public domain as their 75 year copyright terms, established under the Copyright Act of 1976, expired. Basically, any copyrighted musical composition first published in 1922 or earlier is now public domain in the United States. Copyright protection for a work first published in 1922 expired at the end of 1997, 75 years after first publication.

The Bono Extension does not affect these pre-1923 compositions: Works which have fallen into the public domain by January 1, 1998 remain in the public domain even under the new law. The Bono Extension is not retroactive in its effect.

However, any work under copyright protection on October 27, 1998, the effective date of the Bono Extension, will have its term extended an additional 20 years. Accordingly, works first published in 1923 or later, which would have fallen into the public domain after 75 years (a 1923 work would have become PD on January 1, 1999), will now remain protected under the Bono Extension for 95 years, instead of 75 years. Now, a work first published in 1923 will not fall into the public domain until 2019.

At the same time, works created on or after January 1, 1978 will remain protected for the life of the author plus 70 years (instead of life of the author plus 50 years under the original Copyright Act of 1976). An additional 20 years has also been added to the special terms for "works made for hire" and unpublished works.

This article is not intended as legal advice, particularly since laws and procedures change frequently, and are subject to differing interpretations. As always, you should consult your own attorney about your specific copyright issues.

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Copyright Notice and Registration

Choral musicians often ask about the requirements of copyright notice and registration, and, consequently, we thought a brief discussion here might be helpful. These comments pertain to copyright law in the United States only.

In general, under current copyright law, a work is automatically "copyrighted" upon its creation. A manuscript, lyrics or a sound recording enjoy copyright protection even if a copyright notice is omitted and the work is not registered with the U.S. Copyright Office. In 1989 when the United States joined the Berne Convention, an international copyright treaty, we had to conform our copyright law with the laws of other Berne countries by eliminating any notice or registration requirements for protection.

Nevertheless, even though copyright notice is no longer required, placement of a copyright notice on your original manuscripts or other works of authorship is strongly recommended. Using a copyright notice preserves special legal remedies and provides additional international protection in the event someone plagiarizes your work. A special danger arises from posting original material on the internet without a copyright notice. Postings to web pages, discussion forums and bulletin boards actually comprise publications of your work.

The copyright notice should state "Copyright © [year of creation] [name of author]." We also sometimes add "All rights reserved." The "©" is an international symbol and should not be omitted or substituted with "(c)." Sound recordings require a different copyright notice using a "p" in a circle instead of "©".

Whether and when to register are more complex issues. If you are planning to self-publish your work, you will want to educate yourself thoroughly about registration requirements and forms. If you are submitting your unpublished manuscript to a choral publisher like Hinshaw Music, the general practice is to allow the publisher to register the work as your assignee under your publication contract. Registration, like notice, provides valuable, if not essential, legal rights. In particular, registration qualifies you for awards of statutory damages, costs and attorneys' fees. Most people would not even bother filing an infringement suit if they were not eligible for these remedies. Furthermore, registration is actually a prerequisite for instituting a copyright infringement suit in federal court.

The Copyright Office has several excellent circulars on copyright notice and registration which we urge you to consult for more information on these topics. This article is not intended as legal advice, particularly since laws and procedures change frequently, and are subject to differing interpretations. You should consult your own attorney about your specific copyright issues.

The music profession does have a responsibility to establish and follow copyright guidelines and restrictions. Fortunately, good, free resources are increasing, particularly on the Internet. The United States Copyright Office, for example, has established a very useful website which includes its copyright circulars such as "Copyright Basics" online.

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Copyright Myths

At Hinshaw Music, we hear many comments from people about music copyright law. Like a familiar tune, certain beliefs about copyright law arise again and again. Given the complexity of the subject, it is understandable that most of these commonly held beliefs are incorrect. For this reason, we call them "copyright myths." Examples include the following:

• "I mailed my composition to myself and now retain it in the post-marked envelope, so it's copyrighted." Actually, self-mailing is unnecessary and meaningless.
• "I can use up to four measures from an other copyrighted composition without permission; it's fair use." There is no four- measure rule; the amount of borrowing that constitutes infringement varies from situation to situation and can include very small amounts of material, provided it is original, distinctive and significant.
• "We do not need a performance license because this performance is sponsored by a non-profit group." Even non-profits need to obtain a license for certain "non-exempt" performances.
• "I can photocopy anything I want to for my classroom." There is a classroom exception for photocopying, but it is very limited.

The perpetuation of copyright myths like the ones above illustrates how hard it is to establish clear guidelines for intangible intellectual property, which is what the copyright laws seek to do. The Federal Copyright Act is labyrinthine, even for attorneys. Most choral musicians do not pursue careers in music because they want to immerse themselves in esoteric questions of music copyright law.

For our part at Hinshaw, we hope to establish our website as a useful forum for addressing copyright issues of particular interest to choral musicians. By the same token, if you ever have a copyright or permission question about a Hinshaw title, please do not hesitate to contact us about it. We try to be as accommodating as possible, while at the same time honoring our obligation to our composers to protect the intellectual property rights which they have entrusted us to administer on their behalf.

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More Copyright Info

There are a number of web sites containing copyright information of interest to the choral musician. Here is a listing of several sites with our comments:

The United States Copyright Office

The Copyright Office publishes a number of circulars covering a wide range of topics on copyright. These immensely clear and useful treatises are now available online. For instance if you have copyright questions about a recording you have made, Copyright Information Circular 56 entitled "Copyright for Sound Recordings" is an excellent starting place.

The National Association for Music Education

This site features an online version of "The United States Copyright Law: A Guide for Music Educators."

Choralist

The information center for choral music includes a copyright section in "Reference." There are also posted discussions about copyright and fair use. We suggest caution in relying on posted discussions about copyright issues. The author may not be an authority and could be wrong. Furthermore, copyright law varies from country to country, and even from region to region in the United States regarding judicial interpretation. A posted e-mail from England on copyright duration will have little relevance to this issue in the United States, since the law on duration is different in each country.

Kohn on Music Licensing

The book featured on this site is very helpful for music licensing questions. Kohn is available at many major university law libraries.

PLEASE NOTE: In the preparation of these web pages, every effort has been made to offer the most current, correct, and clearly expressed information possible. Nonetheless, inadvertent errors can occur, and applicable laws, rules, and regulations often change. Further, the information contained herein is intended to afford general guidelines on matters of interest. The application and impact of the laws can vary widely, however, from case to case, based upon the specific or unique facts involved. Accordingly, the information in this site is not intended to serve as legal advice. You are encouraged to consult with your own legal counsel for any such advice. Hinshaw Music, Inc. disclaims any responsibility for any misunderstanding on the part of users. Certain links on these pages may lead to resources located on servers maintained by third parties over whom Hinshaw Music, Inc. has no control. As such, Hinshaw Music, Inc. makes no representation as to the accuracy or any other aspect of the information contained on such servers.

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