Music Industry Copyright

Copyright

It means “the right to copy” It means the right to make copies of the

original . It means the right to sell those copies

and make a profit. The most important thing is to

understand that it can be OWNED.

Copyright can be owned, bought, sold, even rented.

It has the same qualities as a physical asset – such as a house or land or a car.

As far as the law is concerned, copyright is property.

Because it is intangible (it cannot be felt) it is called Intellectual Property

In some ways you can consider owning copyright to a number of songs to owning a block of apartments.

Music Publishers A music publisher is an agent. They find people who want to exploit (i.e.. Use to make money) the songs written by songwriters. These maybe:1. Record Companies needing songs for bands and solo performers who don’t write their own material2. Film producers who need music and songs for movie soundtracks3. Managers of bands needing songs to record4. Game Designers for soundtracks5. Advertising Agencies - Commercials

Songwriters can :

1. Assign (sell)

2. License (rent)

Their songs to others.

When songs are licensed, the publisher gets to “use” or “exploit” songs for a set period of time.

The best example of the fate of songs that were sold by the songwriters is the “Beatles” catalogue.

Conglomerate ATV in 1969 had purchased Northern Songs, a publishing company established by the Beatles. The catalog included some 4,000 songs, including more than 200 Beatles tunes, worth an estimated two-thirds of the catalog's value.

This was primarily early Beatles songs. ATV was then owned by Australian tycoon Robert Holmes a Court,

whose company, Bell Group, negotiated with Michael Jackson for 10 months before striking a deal in August 1985 to sell the song catalogue.

Jackson paid around $48Million USD for the entire catalogue. Jackson then licensed the right to use the song “Revolution” in a

commercial for NIKE. The Beatles, especially Paul McCartney, were devastated. In 1995, Jackson cut his stake to 50 percent after merging ATV with

Sony's publishing. Jackson also has a 50-percent stake in new songs added to the catalog.

The Sony/ATV catalog also includes songs like Bob Dylan's classic "Blowin' in the Wind" and the works of artists such as Joni Mitchell and Stevie Nicks.

Today Michael Jackson’s stake in the song catalogue is reported to be worth $500Million USD. (2006)

Lifespan of Copyright

Copyright has a limited life-span In most countries copyright exits from when

the song is written until 70 years after the death of the songwriters. If there are multiple writers, the copyright last until 70 years after the last writers death.

Once this time period has concluded, the song passes into the public domain and can be freely used by anyone.

History of Copyright

The first law containing the word copyright was the UK Copyright Act of 1709

International Copyright was initiated with the signing of the Berne Convention in 1886.

This convention aimed “to protect in as effective and uniform manner as possible, the rights of authors in their literary and artistic works.”

The Berne Convention protects the following rights:

1. Translation (into different languages)2. Reproduction (CD’s cassettes etc)3. Public Performances4. Broadcasting5. Public Recitation6. Adaptation (altering parts of songs)7. Cinematography8. Moral Rights9. Droit de Suite (Applies to painters in re-sale)

Copyright and the Internet Taking something from the internet can be a breach of

copyright. Do not assume that everything on the internet is free. Anything that is copyright protected in other forms e.g., books,

cd’s; is also under copyright legislation when published on the internet.

A song in mp3 format on the web has the same protection as a song recorded onto a CD.

If you want to copy a CD or play it in public – at a gig, by broadcast or on the net, you need permission of the copyright owner.

If you download an mp3 and want it share it with a friend or use it on another web site, the same rules apply.

Rights of the copyright owner.

1. REPRODUCE THE WORKThis includes, recording the music and/or lyrics on to CD, Analogue or Digital Tape, Hard Drive or Computer Disc or on a film soundtrack.

2. PUBLISH THE WORKThis means put the work out to the public for the FIRST time.

3. PERFORM THE WORK IN PUBLICThis could be at a live gig, from a recording in public or in a film soundtrack.

4. COMMUNICATE THE WORK TO THE PUBLICThis includes broadcast over the internet, radio, television or even as music on hold.

5. ADAPT THE WORKThis includes arranging the music, transcribing the music or translating the lyrics.

6. RENT A RECORDING OF THE WORKThis is about the rental of a recorded CD (for example).

The copyright owner has the right to do a number of things with their “property”. If another person wished to do any of these things they need permission from the copyright owner and will generally need to pay a ROYALTY (fee)

RIGHTS The rights in the music industry are divided into

three groups:

1. The mechanical right: This is the right to record a work on record, cassette or CD. This is usually administered by either the Australasian Mechanical Copyright Owners Society (AMCOS) or by music publishers.

2. The synchronization right: This is the right to use music on the soundtrack of a film or video and is usually administered in the same way as the mechanical right.

3. The performing right: This is the right to perform a work in public or to communicate a work to the public. It is administered by APRA.

COPYRIGHT OF SOUND RECORDINGS

Separate copyright exits on a sound recording. The owner (often the record company) has the

right to control when the recording is copied, recorded, performed to the public (broadcast) and rented.

THIS IS DIFFERENT TO THE COPYRIGHT OWNER OF THE SONG.

If you own the copyright of your song – you may not own the copyright of the recording.

How do you protect your music

In Australia there is no formal way of registering copyright.

Once you create something it is deemed to be under copyright.

Copyright exists as soon as it is first written down or recorded in someway, so long as it is your ORIGINAL work and creation.

You do not need to use any formal copyright notice and there is no formal way of registering the notice of copyright.

You can place a copyright notice on your original work in the following way:

© (or "Copyright") + copyright owner’s name + year of first publication —for example: © Joe Blow 1968.

MORAL RIGHTS Moral rights ALWAYS belong to the creator of

a work. Even if the creator does not or no longer has

ownership of the copyright. This means the creator can object if he or she

believes the work is being used inappropriately.

An example might be a songwriter who’s creation is being used to promote a product or service that they have a moral objection to.

This includes the right of the creator to be recognized and “derogatory treatment” of a work.

THE COPYRIGHT OWNER As a rule the composer / writer / author / creator of

music and/or lyrics is the original copyright owner. If you have created a work as part of your

EMPLOYMENT, then the company would be the original copyright owner.

If you are commissioned to write music the person who has commissioned the work is not the copyright owner unless agreed before hand in an agreement or contract.

If you write with others (collaborate) then you should work out BEFORE writing a song, who the copyright owner is or what percentage each party owns.

In sound recordings, generally the person who paid for the recording would be the first copyright owner.

HOW SONGS EARN MONEY1. THE SALE OF RECORDED MUSICMechanical Royalties Every time a recording is sold, a portion of

the sale price MUST be paid to the songwriter. This is the LAW.

The Australian Copyright Act mandates that the Mechanical Royalty Rate is 6.25% or the retail selling price.

The INDUSTRY agreed current rate is 8.7% of the "published price to dealer" (wholesale)

Digital Downloads – Industry agreed rate of 6.25% plus a 1.75% transmission fee totaling 8% or the retail price. (what the consumer pays for the download)

HOW SONGS EARN MONEY2. SONGS PLAYED ON RADIO, TV, INTERNET or AT

LIVE VENUES. Public Performance Royalties These royalties are collected for songwriters and

publishers by APRA. APRA issues licenses to businesses that wish to use

songs and music as part of their operation. Radio stations are charged a Blanket License which is

a percentage of their advertising revenue. The higher the music usage the higher the fee.

Non-commercial stations such as Triple J pay a fee based on a percentage of their Government Funding.

Community Radio Stations pay a nominated flat fee. APRA allocates money to songwriters according to

information collected from TV and Radio Surveys and information supplied by bands in the form of LIVE PERFORMANCE RETURNS.

HOW APRA COLLECTS FEES AND DISTRIBUTES ROYALTIES

RADIO STATIONS

RESTAURANTS

LIVE VENUES

SHOPS

TVSTATIONS

INTERNETBROADCASTS

BARSCLUBS

APRA

Royalties paid to writers and/or music publishersThe “owners” of the music.

$ $ $ $ LICENCE FEES $ $ $ $

HOW SONGS EARN MONEY

3. FEES PAID TO INCLUDE SONGS AND MUSIC ON FILM AND TV SHOW SOUNDTRACKS

Synchronisation Royalties Fees are paid to songwriters to have songs they have

written included on soundtracks or they may have been hired to write new music and songs specifically for the sound track.

The fee will depend on a number of things:1. How big a hit the song used was originally.2. Where the song is featured.3. The size of the film budget.

Many songs have benefited in terms of exposure and therefore record sales from being the theme song in a hit movie.

HOW SONGS EARN MONEY

4. MUSIC AND SONGS ON ADVERTISEMENTS Fees are generally paid depending on how big

a hit the song used was originally and what the size of the budget is.

5. SALE OF SHEET MUSIC AND SONGBOOKSPrint Royalties This was once the major source of income for

songwriters in the days when most homes had a piano and people would gather around for singalongs.

Sheet Music Sales are still a steady income stream.

HOW SONGS EARN MONEY6. LEVIES ON CD’s & CD Rental These levies differ from country to country: Canada

imposes a levy on blank CDs and audio tapes – and in the case of iPod-like devices it could be as much as $US25. That money goes into a fund to pay musicians and songwriters for revenue lost from personal copying.

An attempt to introduce similar legislation in Australia in the 1980s failed on Constitutional grounds.

APRA Put a proposal forward in 2005 to have similar levies introduced in Australia.

7. INCOME FROM COVER VERSIONS When another artist records a version of your song, YOU,

the copyright owner earns all the income for that version as listed in the pervious 6 categories.

Carol King earned more money from cover versions of one song, “Locomotion”, than she did from world-wide sales of her multi-platinum album “Tapestry”.

WAYS COPYRIGHT CAN BE INFRINGED

1. COPYING ALL OR PART OF THE MELODY OR LYRICS OF A SONG

Chords CANNOT be copyrighted! To legally use “samples” you must have permission of the

owner of the recorded version you are using and the songwriter.

2. DELIBERATELY CLAIMING SOMEONE ELSE’S SONG IS YOUR OWN

This might sound obvious but was prevalent in the USA until the 1960’s.

Example – Buddy Holly’s manager’s name found it’s way onto the songwriting credits for a number of his songs. This is why Buddy left the Crickets.

Example – Chuck Berry’s first hit “Maybellene” gained its first New York airplay after disc jockey Alan Freed was listed as a co-author of the song as an inducement to play the track.

WAYS COPYRIGHT CAN BE INFRINGED

3. SIGNING A BAD PUBLISHING AGREEMENT This is less of a problem today as artists and managers are

more informed. Most deals until the late 1960’s gave the artist only 50% of

royalties at best. This is why the Beatles Catalogue is so valuable – Lennon

and McCartney only receive a 50% royalty4. TECHNOLOGY, PIRACY & BOOTLEGGING Changes in technology means that it is easy for people to

burn CD’s, share files and distribute music for free to others – without the songwriter receiving a royalty.

Piracy is when CD’s are reproduced and sold often as the original but without the copyright owner receiving any royalties.

Bootlegging is the illegal recording of live performances, manufacturing and selling a product of those recordings.

A loophole in Australian Law allows unauthorised recordings of live performances to be sold.

MISCONCEPTIONS All lawyers understand copyright – No! Copyright is a

specialist area. The copyright is in the notes, not the way it is arranged –

No! There are only 12 basic notes in Western Music so it is obviously the way those notes are arranged.

The band who played on a CD has the copyright of that recording – No! There are two types of copyright, the song and the recording of that song.

If you wrote it, no one else can change it – No! It depends on your publishing contract.

You can record any song no matter who has written it – Songs can be re-recorded (cover versions) but mechanical royalties must go to the songwriter (AMCOS)

Always go for the biggest advance you can get – No! You have to pay back all the advance from YOUR SHARE of the royalties.

You own all rights at the end of your contract – It depends on the contract. If you have assigned your rights, they are SOLD!

MORE INFORMATION

AUSTRALIAN COPYRIGHT COUNCILwww.copyright.org.au

APRAAustralasian Performing Rights Association

www.apra.com.auAMCOS

Australasian Mechanical Copyright Owners Societywww.amcos.com.au

PPCAPhonographic Performance Company of Australia Limited

www.ppca.com.auIP AUSTRALIA

Intellectual Propertywww.ipaustralia.gov.au

REFERENCES www.apra.com.au www.copyright.org.au http://rubens.anu.edu.au/copyright.html Moorhead, G, Basic Copyright in the Music Industry,

Ausmusic, Melbourne, 1995 http://journal.media-culture.org.au/0507/02-collins.php www.austlii.edu.au www.zdnet.com.au

Complied and Edited by Mark Pullin for Ausmusic Ltd 2006