Copyright Rights Demystified: A Practical Guide to Copyright Licensing

Are you an artist that is registered with BMI or ASCAP (or SESAC)? What about an artist with a publishing deal? A record deal? Is someone interested in placing your song in a movie, tv, etc.? If so, you are probably REALLY confused about how copyright works and exactly what you're getting paid FOR.

What the hell is a "mechanical" license? A "synch"? Over the next couple of blog entries, I'll be breaking down the maze that are the copyright "rights" and giving you a practical guide to managing and licensing them.

Ok, first and foremost, copyright is actually 6 different rights rolled into one, each of which can (and should) be licensed separately; that means, for each "right" someone needs to use your music, they should be paying a fee. Here's a run down of the rights:

1) right to copy (or "reproduce");
2) right to distribute;
3) right to publicly perform;
4) right to publicly perform via digital transmission;
5) right to create derivative works;
6) right to publicly display

Before we even get to those rights however, lets talk briefly about recorded music. Recorded music almost always contains TWO copyrights: one for the actual underlying song - this invokes so-called "publishing rights" - and one for the actual recording of that song - often referred to as a "master." So, for example, if you want to re-record someone else's song, you only have to licensing the song's copyright. In contrast, if you want to use a "sample" of a song, you're often dealing with the copyrights for both the song and master (which are often owned by different parties). This is often why you might hear a bit of a song that isn't the "original" recording you know and love, say, on a Television commercial. That is because there is often an additional (and substantial) fee for using the recording itself.

The difference between song rights and masters rights are VERY important, especially if you're a musician signed to a label. Often, you technically don't OWN the actual recording copyright; the label does. So you actually don't have the right to give out the recording or treat it in any way that isn't consistent with your contract (or with the label's consent). Something important to keep in mind.

Alright, let's get back to copyright in general. Let's look at the rights to copy and distribute first, which are normally licensed together.

The right to copy technically means any of the song. In the physical sense, this incorporates any burned copies of your work, any downloaded copies, and, technically any "streaming" (because the work is considered to be temporarily copies onto the listener's computer). Contrary to popular belief, people are not allowed to make additional copies of CDs they own, even for so-called "archival" purposes. That idea came from a judge in a very old case, BetaMax, but it was actually never enacted into law. So why can you put a copy of your CD onto your iPod? Well; from a strictly legal perspective, you can't. And back in the mid-late 90's, record companies tried to stop you by putting DRM ("digital rights management") onto the CD to prevent it. However, it also had the unfortunate side effect of crashing your FUCKING computer... so public policy forces this kind of copying to basically be "overlooked."

However, it is still faux pas - legally and ethically - to make copies of CDs for your friends or send them Mp3. That is why, for example, iPods can only synch to one iTunes account, and why Napster only let's you maintain your library on 5 computers. They are limiting your "license" to use the music.

Which brings us back to copying; as an artist, when you sell a CD, you're actually only selling a LICENSE to your listeners to listen to that one copy privately, or to sell that ONE copy as they see fit. Nothing more. If they want to make additional copies, they have to license that right from the owner of the song (usually the songwriter or a publishing company), and from the record company (if they want to use a particular recording).

Well, what if you want to do a cover of a song? This is where the "statutory" or "mechnical" license comes in. It's the right to copy and distribute a song, and it MUST be granted to anyone that agrees to pay the fee of 9.1 cents PER song, PER copy. These licenses are very easy to get and are administered through the Harry Fox Agency. Simply type in the song info, how many copies you're going to press and VIOLA! Instant license. Now it is important to note that there are TWO rights being licensed here; the rights to copy AND to distribute. Practically, one is really no good without the other.

In tandem with this, I would like to touch briefly on live performances of covers. Musicians, please note - it is NOT your responsibility to get or to pay for a license to do this IF you are playing in a venue. It is the venue's reponsibility to buy "blanket" licenses from BMI, ASCAP and SESAC. If they don't, THEY are on the line for it, not you. The only time this comes into play is if you are performing in a public place - but we'll get to that later.

Let's switch the to "other side" of licensing the rights to copy and distribute - for masters. This comes into play usually when musicians want to use a "sample" of a recording, or for compilation CDs (i.e. "Now that's What I Call Music 1,567!") If you want to use a sample, the first part is easy - just log onto Harry Fox and license the song. The second part is usually a bit more complicated because it's usually a label that owns the rights to the actual recording. However, if you're licensing a song from an indie artist, you can often call them right up and ask; usually they will grant it for a small fee, or sometimes for free if they really want the exposure. The most important thing to note here is that, unlike mechanical licenses, there is no absolute right to use a recording, nor is there a set fee. You have to go straight to the owner, who CAN tell you no and technically set any price they'd like. Neither will probably be the case, but just be aware.

So you've got to reach the record company; yes, I understand that can be a complete pain in the ass. However, many labels do have licensing departments and even with some of the bigger indie labels, you can send an email to customer service and get a response. After all, you want to give them money! They'll respond.

One small note before we stop for the day - all this counts for digital distribution too. So make sure if you are contacted to license music, you ask if the person wants to distribute it online; that's an expansion of right that has a value!

Until next time, then.

www.newleaflegal.com