Ausmusic; Excerpts by S.Simpson & C. Seeger's 'Music Business' (Warner Chappell)
30/11/2004
Understanding copyright is as important as learning to perform or write songs. If you do not fully understand everything that is written here, then you are in danger of ending up like the Beatles who through ignorance lost control of their own songs and millions of dollars.
What Is Copyright?
Copyright means exactly what it says: it is a copyright. In other words “the right to copy”.
The right to make copies of an original and to sell those copies and make a profit is the right of the owner. The most important thing to grasp in understanding copyright is that it can be owned.
It can be owned, bought, sold, even rented. It has the same qualities as a physical asset- such as a house, a car or a piece of land.
As far as the law is concerned, copyright is property. Because it is intangible (i.e. It cannot be seen or felt) copyright is called intellectual property, as opposed to houses and land, which are physical property.
How Do I Protect My Songs?
In Australia, the Copyright Act provides automatic protection. Copyright exists as soon as the song has been “fixed” (i.e. Given some material form). This could be by recording the song, writing on paper or even by performing the song in public in front of a paying audience.
“As soon as a thing which is capable of protection is given a material form, copyright exists in it.” Music Business
Although it is not necessary in Australia to label material as copyrighted, it is advisable to mark the work (i.e. The material form) with a copyright symbol, the year of first publication (when it was written or recorded) and the name of the owner. For example: © 1995 Bill Smith.
The situation regarding proving copyright ownership varies from country to country. However once ownership is proved in one member of the Berne Convention then this proof of ownership works in all others.
Proving copyright ownership in Australia requires no formalities. Many songwriters are paranoid that someone else will steal their “hit” so they are at pains to find ways of proving their ownership. In fact, most documented instances of song stealing take place after the song has become a hit.
“… Keep a regular diary of your work, showing when you worked on a particular song, what it was called, when it was finished, to whom you played it and when…all the diary provides is some proof as to what you wrote and when you wrote it. It is just evidence that what you say is true.” Music Business
The other obvious and easy proof of ownership is when you record your material. Like studios, keep master copies of all recordings and note the dates of recording.
The object of all of this is to be able to prove that wrote a certain song on a certain date. However, the point must be stressed, this is not how most copyright theft in songs occurs.
What Are the Different Types of Copyright?
These are essentially two main areas of copyright with the music industry…
1. The copyright in the song and,
2. The copyright in the recorded version of the song (i.e. The mster recording that is made when the band puts its songs to tape in the recording studio and which is used to make the CDs and cassettes sold to the public).
There is also copyright in videos and copyright issues relating to merchandising which will be discussed at the end of this section.
1. The copyright in a song
Songs are often referred to as “musical works”. This is the copyright that has occupied most of the discussion in the preceding sections.
The law refers to the songwriter as the “author”. The author (songwriter) is the owner of the copyright.
The law distinguished between the writer of the music (who is called the composer) and the writer of the lyrics (who is called the lyricist). Where there is only one songwriter, then this person is both composer and lyricist.
Despite what the law says about how ownership of songs is to be shared between co-writers, the writers themselves actually determine how shares in a song will be apportioned. If two people co-write, a fifty/fifty split is the obvious to share; if three, then one third each is, again, logical.
Sharing song ownership becomes complicated when bands decide they want all members to have a piece of the action. This is a commendable attitude. Many bands have broken up in the past when non-writers realized that the songwriters were earning a great deal more money than the rest of the band. It is also recognition of the fact that a band recording and playing is one of the best ways to make money out of songs. Such formulas could look like this:
Example A:
Five piece band in which all members usually make some contribution to writing
· Initial song idea 10%
· Lyrics 15%
· 5 x equal shares of 15%
In this example, if one member had the original idea and wrote the lyrics, that person would own 40% of the song. The others would own 15% each.
Example B:
Six-piece band with two main writers who do most of the writing work but wish to reward other band members.
· Song writers 40%
· 6 x equal shares of 10%
Here the two main writers would each own 30% of the song; the other band members would own 10%
The key point to remember is that all co-writers must agree right from the start as to how the shares in a song are to be allocated. Young songwriters are usually advised to agree on ownership shares as soon as the song is written.
If co-writers leave the room where they have written the song without reaching this agreement and writing it down, then they are headed for trouble.
For songwriters in the popular music industry, the practical issues around songs fall into two areas.
The first involves the songwriting process itself and the second involves the “exploitation” of the completed songs; how to gain maximum exposure and income from songs. The songwriter may, of course, sell or lease the copyright at any time.
Exploitation of the song and ownership
Most songwriter sign contracts with music publishers as a means of getting their songs in front of the biggest audience (and making the most money possible from the songs).
These contacts are discussed in more detail in the publishing info sheet. However, there are a couple of points, which are basic and need to be understood. These involve the effect on the ownership of the song by signing a publishing contract.
Publishing contracts may involve the actual sale of the song to the publisher or the leasing of the songs for a set period of time. In both cases, the contract will provide for a fixed percentage (usually 70% or 80%) of the money earned by the songs to be paid to the writers.
Whether the publisher insists on the sale of the song or will settle for leasing depends on other factors involved in the contract, such as whether and how much of an advance is being paid to the writers.
2. Copyright in the Recorded Masters.
Ownership of the copyright in the recorded masters is deemed to be with however paid for the recording to take place. In other words, who paid for the hire of the recording studio, engineer, tape, outboard equipment and associated costs?
In most cases this is the record company.
Again, there will be a contract between the record company and the band which specifies that the band is to receive a share of the money earned by the sale of those recorded masters as CDs and cassettes; however, the ownership of the master tape is with the record companies.
Most record contracts require the band to repay costs of recording the master tapes out of the bands royalties. BUT, even when these costs are fully repaid, the ownership of the master recording still remains with the record company.
Copyright in Music Video Clips
The same principle applies as with record master tapes. Whoever pays for it, owns it. Usually the copyright lies with the record companies who pay for the videos.
Early in a bands career, it is not uncommon to be offered the chance to make a “free” video clip. The offer is usually made by a young video clip producer keen to establish a reputation.
The copyright is such a video would be the producer’s, not the bands.
‘…. If a video clip were made “no charge”, the producer would be the owner, unless specified otherwise…” Music Business
How Long Are My Songs Protected by the Copyright?
There is one important difference between owning a physical asset and owning copyright.
Copyright has a limited life span. It does not last indefinitely like physical property.
In most countries, copyright exists from the moment the song is written until 50 years after the death of the songwriter. If there are two co-writers, then the copyright lasts until 50 years after the death of the last surviving writer. Thus most of the Beatles’ songwriting copyrights, no matter who owns them, will last until 50 years after the death of Paul McCartney.
Once this time period has elapsed, copyright simply ceases to exist and the songs are said to have “passed into the public domain”.
Songs in the public domain may be used (i.e. Performed, recorded, used on soundtracks, etc.) without the necessity for paying any songwriting royalties.
HOW IS COPYRIGHT INFRINGED?
There are a variety of ways in which copyright can be infringed. At the end of the day, no matter how you dress it up, such infringement is theft. In the best case, the songwriter loses some income earned by the song to which they are entitled; in the worst case they lose the song itself.
Following are a number of examples of the ways copyright can be infringed.
1. Copying all or part of the melody or lyrics of the song
First Example: the Puccini/Al Jolson case.
In 1920, the classical composer Puccini sued pop singer Al Jolson. Puccini claimed that Jolson’s hit song “Avalon” was a rip off of his opera, “Tosca”. The judge had an orchestra perform both songs simultaneously in court and decided that they were the same. He awarded Puccini $50000 in costs and all future earnings from Avalon.
Many commentators feel this case is an exception. It is normally difficult to prove “sound-alike” claims and most fail in court. There are bound to be similarities between works are of conscious or subconscious influences on writers.
Also, there are only 12 notes that make up most pop tunes. There is bound to be some duplication.
Second Example: Sampling
Sampling ahs become an established recording technique, especially for dance and hip-hop artists.
There was an initial reluctance to test the legality in court until 1970’s artist Gilbert O’Sullivan sued Biz Markie in the USA. Biz Markie had used a piece of one of O’Sullivan’s songs without authorization. O’Sullivan won and now most samplers seek permission if they intend to sue anything that is recognizable as coming from another song.
Permission is usually forthcoming as long as the sampler guarantees a satisfactory fee or royalty.
2. Deliberately Registering or Claiming Someone Else’s Song as Your Own
This may sound a little blatant, however, it was very prevalent in the USA up until the 1960’s.
Shady music business executives would often include themselves as “co-writers” on a song in order to benefit from some of the royalties.
Buddy Holly’s manager’s name found its way onto the songwriting credits for a number of his songs. This was the reason Holly left the Crickets.
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 inducement to play the track.
3. Signing a Bad Publishing Agreement
This is less a problem these days as publishers are generally more reputable and artists and mangers more informed; however, up until the late 1960’s, most publishing deals gave artists only 50% of royalties at best. This is why the Beatles Catalogue is so valuable to a publisher. Lennon and McCartney receive only a 50% royalty.
The most famous example of this kind of rip off is Billy Joel. He signed such a bad publishing deal early in his career that he received only $7763 in songwriting royalties for the Piano Man album even though it sold over a million copies.
4. Changes in Technology
Technological change that makes it easier for people to home tape sees artists losing royalties. Recordable CDs will be the next nightmare for those countries with no blank tape (and blank CD) levies. The recent music industry summit in Canberra addressed the problems relating to this area and the music industry is in constant consultation with the government to introduce legislation to ensure copyright protection is in step with technological advancements.
5. Piracy and Bootlegging
Piracy is the illegal manufacture of authorized recordings. At time of writing, the USA is placing heavy pressure on China to curb the number of pirate CDs of US artists being produced in that country. Piracy steals from the owner of the copyright in the song and the owner of the copyright in the master recording.
Bootlegging is the illegal taping of live performances and the subsequent manufacture of recorded product of those recordings.
A loophole in the law in Australia allowed unauthorized recordings of live performances to be legally sold.
What Happens When You Accuse Someone of Stealing a Song?
When there is any dispute over ownership of copyright or entitlement to royalties NO-ONE gets paid until the matter is settled. All royalties are placed in a suspension account at the record and publishing companies until things are clarified.
Most European countries recognize moral rights, i.e. The creator of a work has some say in the way hi/her creation is used, even though the copyright of the work may be assigned or licensed to a recording, publishing or film company.
What is the Difference Between Copywrite, Patents and Trademarks?
Copyright protects works that are artistic in nature, patents protect new and useful inventions and trademarks are words or symbols (such as logos), which distinguish products in the market place.
Patents and trademarks are also classed as intellectual property.
Trademarks are of importance to a band’s merchandising. Merchandising can be a very lucrative sideline to activity in the music industry. The more successful you become, your potential to earn through merchandising grows with you.
The items that will be sold by the merchandisers have value to your fans because they will carry the band name, photos or likenesses of some sort and perhaps a logo. It is vitally important that the band own all copyright in these items, especially photos, distinctive designs and logos.
History of Copyright
Many classical composers used to blatantly “borrow” melodies and ideas from other composers. There was no great outrage felt at this because at the time there was no real way of making money out of the “borrowings”
Copyright became important only when technological progress began to provide a means of putting original works (i.e. Songs and music in our case; otherwise books, plays, poem, etc.) in front of a mass audience prepared to pay for the privilege of hearing, reading or seeing those works.
Initially, this technological progress was the development of printing.
The first recorded law containing the word “copyright” was the United Kingdom Copyright Act 1709. This Act gave authors of books already printed the sole right of printing them for 21 years.
Over the next 200 years these laws were constantly adapted and expanded to include other types of original works (e.g. Plays, scultputres, paintings, drawings and engravings).
In the field of music, printing also provided the first chance for mass production exploitation with the growth in popularity of sheet music in the 19th century.
International Copyright
Copyright received protection within a country when that country’s parliament passed a law protecting the copyright. However, copyright protection in other countries depended on international treaties or conventions.
The most important and far-reaching legal development in international copyright protection was the signing of the Berne Convention in 1886.
The Berne Convention, or to give it its full title, the “Berne Convention for the Protection of Literary and Artistic Works”, aimed: “to protect in as effective and uniform a manner as possible, the rights of authors in their literary and artistic works.” (Preamble to Berne Convention)
The Convention applied certain minimum standards of protection for writers and artists (including songwriters) in all countries how became signatories.
It worked on the principle of reciprocity (which could also be called the principle of giving as you receive, or “tit for tat”). All countries that sign the Convention guarantee the same rights to writers and artists in other countries as they do for their own writers and artists.
The Berne Convention protects the following rights:
(“Protects” means the copyright owner can exercise control over how the song or music is used as well as collect a fee called a royalty for this usage.)
1. Translation (into different languages)
2. Reproduction (on CDs, cassettes, etc)
3. Public performance (playing the songs live)
4. Broadcasting (on radio and TV)
5. Public recitation (not such a major earner these days)
6. Adaptation (altering parts of the song, changing lyrics, etc)
7. Cinematography (music on film)
8. Moral Rights (to prevent distortion or mutilation through bad adaptations or alterations. In the music industry, this would have most application in the use of songs in commercials).
9. ‘Droit de Suite’ (applies to painters and gives them a right to a royalty from any re-sale of their paintings).
Not all countries, which have signed the Convention, grant all of these rights. The last two in particular have been ratified (formally accepted) by only a few European countries. There are also differences in the length of time rights are protected. Recently some European countries took steps to lengthen the life of copyright from 50 to 70 years after the death of the songwriter.
The rights conferred by the Berne Convention of significance to the music industry are as follows:
1. Right of reproduction
In the music industry this leads to two different royalties:
(Another way of understanding what a royalty means is to see it as a share of any money earned from the song.)
· The mechanical royalty (this is a royalty paid from the sale of recorded music on CDs, cassette tape, etc.).
· The print royalty (this is paid from the sale of sheet music, song books and any printed material).
2. Public Performance and Broadcast.
These rights give rise to what are called performance royalties. Performance royalties are paid whenever the song is played on radio, TV, or in a public venue to a live audience.
3. Cinematography
When songs are included on a movie soundtrack a fee called a synchronization royalty must be paid to the owner of the copyright in the song.
(We will look at these rights and royalties, what the mean, how they are calculated and how they are collected in more detail in the next section “How Songs Make Money” and in Part Four, “The Different Types of Copyright”.)
The Australian Colonial Governments became automatic signatories to the Berne Convention in 1886 when the British Parliament signed it.
In Australia today, copyright is based on the Copyright Act 1968, which updated and amended the earlier Acts.
The provisions of the Act are designed to link with the provision of the international copyright treaties, such as the Berne Convention, to which Australia is a signatory.
More Copyright Details
Ausmusic has another Info Sheet relevant to copyright that details how money is made from copyright. This details how songs earn money, how royalties are paid, information on performance royalties and details on how publishing works.
MUSIC INDUSTRY
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EXCERPTS TAKEN FROM THE
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MUSIC BUSINESS
BY SHANE SIMPSON & COLIN SEEGER
