This course provides an engaging and methodical insight into the past and present cultural and commercial music industry developments, directions, and trends. It will equip the students with the knowledge and skills necessary to appreciate, understand and more productively participate in today’s music industry field.
Regulations 1: Music Copyright Fundamentals - © and Ⓟ
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Um novo mundo, um novo mapa: GPS para a Indústria da Música
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Publishing and Copyright
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Darko VelichkovskiMusic Industry Program Director
Music Industry
A musical creation, be it a symphony, a children’s song,
or anything in between,
is a result of a personal creative effort,
a product of someone’s work and imagination.
Just like any physical object that one makes
with one’s own materials and tools,
on one’s own time, and with one’s own hands,
a musical creation, is treated by the law
as a special kind of property
“intellectual property”
that initially belongs to its creator or creators,
who have certain legally protected rights
regarding their creation.
Those rights are collectively called
“music copyright” and are itemized and defined
in the U.S. Copyright Act.
The basis for the Copyright Act is the
U.S. Constitution, which in Article I,
Section 8, states:
“Congress shall have power…
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.”
Other words, the Congress has the power
to design and enact the laws regarding
the rights in artistic and scientific work,
generally known as “intellectual property”.
The U.S Copyright Act was enacted by
Congress in 1790, and a number
of revisions followed throughout the
past two centuries. Its terms
and provisions are crucial for the
music business and industry,
and shape many of its components,
methods and practices.
Being that music is an artistic expression,
it is considered an artistic type of
intellectual property and is,
as such, protected under the Copyright Act
together with the works of literature,
drama, pantomime, choreography,
painting, drawing, graphics, photography,
sound recording, architecture, motion pictures,
and other visual and audiovisual creations.
This legal protection, as defined in
the Copyright Act, is a result of
seeking the balance between the
interests and needs of the copyright
owners and the copyright users.
Its purpose is to provide benefits
and an impetus to the creators
to continue creating,
but also to make their creations
available to the public in a
reasonable manner, for the benefit
and the good of the society at large.
The complexity of its numerous provisions
and parameters is largely due to
the pursuit of this balance
between often opposing interests.
The music copyright protection begins
at the material inception of the
musical creation. In order to be
legally considered and classified
as protected, a musical composition
must be fixed in a tangible form
of expression, such as being
written down or recorded.
Other words, it must take some physical
form and be perceptible from
that form, either as a musical
language (or music notation, right?), or as a
physical sound (recording). This legal
requirement constitutes the first
fundamental principle of copyright
in general: copyright protection
does not apply to an idea,
but to a tangible expression of that idea.
For example, the general idea and
the form of blues music are not
protected, but a particular,
original blues song,
written down or recorded, is.
Most of the blues songs consist
of several cycles of a 12-bar
blues chord progression,
containing particular three chords.
Neither this cycle nor its three
chords are copyrightable
as an idea; on the other hand,
an original blues song,
using the blues cycle and chords,
is copyrightable, if it is
written down or recorded.
This copyright principle and issue
is often referred to as the
“idea-expression dichotomy”,
signifying the separation and the
essential difference between
these two intellectual forms
when it comes to copyright.
Current copyright regulation calls
for no registration or paperwork
as required in order to copyright
a piece of music, though
registering it with the Copyright Office
is recommended, as certain
litigation parameters and instruments
are not available to the
creators without it.
But officially and legally,
the moment an original song is
written down, or recorded,
it is protected by copyright,
and its creator is vested with
certain legal rights.
Now, according to Section 106
of the U.S. Copyright Act,
the owners of the copyright have
the following exclusive rights
relative to their original work:
To reproduce the work in copies or phonorecords;
To prepare derivative works based upon the work;
To distribute copies of the work to the public
by sale or other transfer of ownership, or by rental, lease, or lending;
To perform the work publicly
To display the work publicly; and
In the case of sound recordings,
to perform the work publicly by
means of a digital audio transmission.
The first thing important to notice here
is that the Copyright Act distinguishes
between two distinct kinds of
musical creations: a music composition,
and a music recording.
A music composition is referred
to as a “musical work”, and
a music recording is referred to
as a “sound recording”.
The copyright symbol for
a musical work is ©.
The copyright symbol for
a sound recording is ℗.
So, the product of the act
of composing, or songwriting,
is recognized by law as
separate and distinct from the
product of the act of recording.
The product of composing,
a music composition, referred
to as a “musical work”, legally,
exists separately and independently
from its recording.
The product of recording is
referred to as a “phonorecord”
(thus the symbol ℗), right?
and it inevitably includes a
composition as its component and aspect.
Other words, the "XYZ song" is one,
and only one, unique, original
“musical work”, but it can have
many different “sound recordings”.
The XYZ song composition does
not have to be recorded in order
to exist as a copyrighted entity.
It can be only written down,
and as such copyrighted as a
“musical work” (©).
If, and when, the XYZ song is recorded,
its recording becomes another and
distinct copyrighted entity,
a “sound recording” (℗).
Therefore, every music recording inherently
contains two types of music creations:
a composition (“musical work”)
Get used to that terminology in general.
and a recording (“sound recording”).
each one protected separately
by its respective copyright.
Naturally, being separate entities,
each can have a different copyright
owner as well, and it usually does.
The musical work (©) is usually owned
by a composer, or his or her publisher,
and the sound recording (℗)
is usually owned by a recording artist,
or his or her record label.
The other thing important to notice
in the list of the exclusive rights
of copyright owners is that
it includes reproductive rights,
and that those rights mean different
things for the two types of music
creations we just discussed.
The list begins with the right
“to reproduce the work in copies or phonorecords”,
which, given different nature of
the music products, and different
potential uses of each,
creates a number of various rights.
The owners of the musical works are
given the exclusive reproductive
rights of printing (music compositions
printed as sheet music),
of “synchronization” (the use of
music compositions in movies,
television productions, videos,
and so forth
and mechanical reproduction
(music compositions recorded on CDs,
records, tapes, digital files).
The owners of the sound recordings
are given the exclusive reproductive rights
of copying their product
(to reproduce, multiply their recordings),
and of “master use” (the use of
sound recordings in movies, television
productions, video, and so forth).
These, and other exclusive rights,
which we will cover separately,
are the basis for much of the music
business licensing and commerce
that will be discussed later on in the course.
So how long does the music copyright last?
The duration of the copyright is
somewhat complex issue, and
it depends on when the work was created,
and under which circumstances.
As the copyright code evolved and was
being amended over time, its scope,
parameters and requirements were
changing and affecting differently
musical works written at different
times in history. In addition,
sound recordings created before 1972,
according to the 1976 Copyright Act,
do not fall under the federal copyright law,
but are under the jurisdiction of
the state laws until 2067.
That’s because before the 1972
Sound Recording Amendment to the
Copyright Act there was no federal
copyright protection for sound recordings,
only the state laws protection.
And the state laws, by and large,
treat the copyright of the pre-1972 recordings
through common law and criminal law,
and thus as a property protected by ownership;
meaning, that virtually no pre-1972 recording
will become free for the public use until 2067.
On the other hand, post-1972 recordings
do fall under the federal copyright law,
and are treated as all other copyrighted material
regarding the duration of the copyright.
We will look at some of the most common
and relevant regulations and categories regarding
the copyright duration, starting with the
works created on or after January 1, 1978.
By the way, January 1, 1978 is pivotal for
the copyright regulations in general,
because the 1976 Copyright Act went into
effect on that date, and that version
of the Act is the basis for much of
today’s copyright. On the other hand,
today’s copyright duration regulations
are based on the 1998 Copyright Term Extension Act,
which generally extended the copyright protection
duration by 20 years in comparison to
the 1976 Copyright Act.
Let’s look at some of the important particulars
of current copyright duration regulations.
The works created on or after January 1, 1978
are automatically protected, from the moment of their creation,
for the lifetime of the artist plus an
additional 70 years after the artist's death.
In the case of a joint work,
prepared by two or more artists,
who did not create the work under
the “work for hire agreement”,
the term lasts for 70 years after the
last surviving artist's death.
Notice the mention of the “work for hire” term here.
We will discuss this issue later in this course,
but for now we should simply say that it is
the work created by an artist who was hired
by someone to create the work.
For such works, for works made for hire,
and for anonymous and pseudonymous works,
the duration of copyright is 95 years from first publication,
or 120 years from creation, whichever is shorter.
Therefore, if the author of a song died in 1980,
the song is copyrighted until 2050 (life of the author, plus 70 years).
If the song was created as a work for hire in 1980,
and published or registered the same year,
it’s copyright would expire in 2075
(95 years from publication or registration).
The second broad category is the works published before 1923.
What we should be aware about here, is that
because of various changes and a number of amendments
to the U.S. Copyright Act over the years,
all the music published before 1923 is today
in the “public domain”, which simply means that it
is not protected by the copyright any more,
and is available for free use.
And why works published before 1923?
Until 1998 the longest copyright protection available was 75 years
from the publication. In 1998 another 20 years
were added to the protection, but only for
the works that were still copyrighted at the time,
which means only the post-1922 works.
Thus, if a work was published in 1922 or earlier,
its copyright has expired by this time,
and it entered the public domain before the extension was added.
(1922 or earlier + 75 years = 1997 or earlier)
And while on the topic of the public domain,
we should know that a work enters the
public domain category in several different ways:
First, through the Copyright Term Expiration
when the work’s copyright protection expires,
the work enters the public domain and becomes freely
available to public. Second, by the Lack of Copyright Renewal
the works published before 1964 had a copyright term lasting 28 years,
and were required to file for term extension in the
28th year in order for the copyright to be extended
to another 28 years. Failure to file for
such extension placed the work in the public domain,
after the original 28 years of protection.
Third, by the Lack of Copyright Notice
The works published before March 1, 1989,
were required to have a copyright notice affixed (©),
in order to be copyrighted. Lack of such notice
would place the work in the public domain.
And lastly, through the Public Domain Dedication
– the author has a right to intentionally place the work in the public domain,
and to “dedicate” it to the public.
Such works are available for free use like any other public domain work.
It is important to realize that the term “public domain”
should not be confused with public access.
The fact that some works are publically accessible
does not mean those works are in the “public domain”.
The public domain refers only and strictly to the subsistence
of the copyright protection, not to the accessibility.
For example, the Internet is full of publically accessible material,
much of which is not in the public domain.
A web page, a photograph, a movie, a song, etc.,
may be publically available on an Internet site,
but still be protected by copyright,
and not in the public domain category of works.
Continuing on with our consideration of the copyright duration,
the next category is works created between January 1, 1923
and January 1, 1978. These works fall under several
different subcategories of the copyright duration.
First, for works originally created in this period, but not published,
the duration of copyright is generally computed in the same way
as works created on or after January 1, 1978:
the life-plus-70, or 120 years from creation
in case of the works made for hire,
as in our first category. However,
the law does provide that for works in this subcategory,
if published between January 1, 1978 and December 31, 2002,
the term of copyright will in no case expire before December 31, 2047.
On the other hand, If published after 2002,
these works are copyright protected like the works in the first category:
for the life of the author, plus 70 years,
or in case of works made for hire,
95 years from publication or 120 years from
creation, whichever one is shorter.
Confused yet? This is what it means:
if a song was written before 1978, but not published,
its copyright lasts for the life of the author, plus 70 years,
or for 120 years from creation if it was a work for hire.
However, if it was written before 1978,
and published between January 1, 1978 and December 31, 2002,
its copyright is computed the same way,
except that it will in no case end before December 31, 2047.
For instance, if the author died in 1940,
the copyright of his unpublished songs would expire
in 2010 (life of the author, plus 70 years).
But, if the songs were published by his estate or a
publisher in year 2000 (which clearly falls between 1978 and 2002),
the copyright would not expire in 2010,
but would subsist until 2047. Now, that's a huge difference. On the other hand,
if the songs were published anytime after 2002,
the copyright would expire in 2010,
like in the case where the songs were not published.
Still confused? Don’t worry. Go over this a few times and it will sink in. I promise.
And lastly, works originally created and published or
registered before January 1, 1978,
if their copyright is still subsisting on October 27, 1998,
the date when the 1998 Copyright Term Extension Act
went into effect, have a total term of protection
of 95 years from the date of first U.S. publication.
For instance, if a song was published in 1930,
it would originally have had a copyright protection
lasting 28 years that could be renewed for another 28 years,
totaling 56 years, which would expire in 1986 (1930 + 56 years).
However, the 1976 Copyright Act extended the total
copyright protection to 75 years,
taking that song’s copyright to 2005 (1930 + 75 years).
That would make its copyright subsist in 1998
when the copyright was extended by the Extension Act
for another 20 years, to 95 years total,
extending the song’s copyright protection until 2025
(which is 95 years from the original publication in 1930).
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