Copyright Law - Scope of Protection Afforded by Copyright
Digital Millennium Copyright Act - Covering New Technologies
Licensing/Royalty Information - It All Begins With A Song

COPYRIGHT LAW

Intellectual Property: Copyright
Scope of Protection Afforded by Copyright

The Copyright Act, Title 17 of the US Code, affords works copyright protection in an effort to encourage both the creation of new works and the free exchange of ideas. Copyright protection exists from the moment a work is fixed and immediately becomes the property of the work’s author (usually defined as the person who created the work). (17 U.S.C. §§ 102, 201.) Other than the author, the only people who can claim to have a copyright in the work are those deriving rights to it from the author via will, intestacy (laws governing the distribution of property when there is no will), assignment (a legal transfer of rights), or license. (17 U.S.C. § 201(d).)

Protections Afforded by Copyrights
The Copyright Act generally gives the owner of a copyright the exclusive right to do and authorize others to do the following:

• Reproduce the work in copies or phonorecords;
  
• Prepare derivative works based upon the copyrighted work (described below);
  Distribute copies or phonorecords of the work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
  
• Perform the work publicly (in the case of literary, musical, dramatic, and choreographic works, as well as pantomimes, motion pictures, and other audiovisual works);
  
• Display the copyrighted work publicly (in the case of literary, musical, dramatic, choreographic and sculptural works, pantomimes, pictorial, graphic, and other audiovisual work, including the individual images of a motion picture); and
  
• Perform the work publicly by means of a digital audio transmission (in the case of sound recordings).
  (17 U.S.C. § 106.)

Reproduction of a work. A copyright holder has the exclusive right to reproduce the protected work—to make as many or as few copies as he or she wishes, and to prevent others from making unauthorized copies. Copies include digital reproductions; for example, MP3 music files available in vast quantities on the Internet.

Derivative works. One of the exclusive rights accompanying copyright ownership is the right to create derivative works based upon the copyrighted work. (17 U.S.C. § 106(2).) A derivative work is a work based upon one or more preexisting works. For example, an English translation of a novel written in French is a derivative work. A movie based on a book is another common example of a derivative work. Therefore, the owner of the copyright for a novel has the exclusive right to prepare or authorize translations or movie versions of the novel. Other examples of derivative works include fictionalizations, motion-picture versions, or, according to the Copyright Act, “any other form in which a work may be recast, transformed, or adapted.” (17 U.S.C. § 101(3).)

Distribution of copies. Since the rights to reproduction and derivative works secure to the copyright holder most of what can conceivably form the basis of distribution, the distribution right can be seen as more of a limitation, and for that reason is sometimes called the “first sale” doctrine. The first sale doctrine allows the copyright holder to be the first to sell the work, but also provides that once the first sale has occurred, the new owner may treat the object, the copy, as his or her own. The new owner and all subsequent owners may sell the object freely without interference from the copyright holder.

Public performance. The public performance right applies only to literary, musical, dramatic, choreographic, pantomime, motion picture, and other audiovisual works. The right to “performance” permits the copyright holder to prevent others from transmitting via mass media, broadcast, or other technological means.

Right to display. The right to display is narrow and permits the copyright holder to limit an owner of a copy to displaying only his or her copy, and not display, project, or transmit multiple copies to more than one location.

Right to attribution. Authors of “works of visual art,” which are very specifically defined by the Act, have the right to prevent the use of their names in connection with works they did not create, and have the right to prevent anyone from distorting their work in a way that would damage their reputation. (17 U.S.C. § 106A.)

Limitations on Copyright Protection
The most prevalent limitation on the exclusive rights afforded to copyright owners is the doctrine of fair use. The fair use provision of the Copyright Act permits the reproduction and other uses of portions of copyrighted works, including quotations, for purposes such as commentary, criticism, news reporting, teaching (including multiple copies for classroom use), scholarship, and research. There are no legal rules specifying the number of words, musical notes, or percentage of a work that the general public may use based on this provision. Whether a particular use qualifies as fair use depends on the circumstances. Additional provisions of the law allow uses specifically permitted by Congress to further educational and library activities. (17 U.S.C. § 107.)

Copyright Infringement
Uses of copyrighted material that are not authorized either by the statute or by the copyright owner are infringements of copyright. A party may seek to protect his or her copyrights against such unauthorized use by filing a civil lawsuit in Federal District Court. If you believe that your copyright has been infringed, consult an attorney. You must apply to register your copyright with the federal Copyright Office before you can file an infringement suit. (17 U.S.C. § 411.) In cases of willful infringement for profit, the US Attorney may initiate a criminal investigation.

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If you are not sure whether your use of a copyrighted work constitutes a permissible “fair use,” the Copyright Office recommends that you obtain permission from the person who owns the rights to the work. If you are not certain who that is, or have other related questions, you may wish to request that the Copyright Office conduct a search of its records for you. The Copyright Office charges a fee for this service. You should be aware, however, that because registration is no longer required as a prerequisite for copyright protection the Copyright Office may not have any information on who is the copyright owner for a particular work.

The Complete Copyright Act, Title 17, may be reviewed at: http://www.copyright.gov/title17

Digital Millennium Copyright Act

BACKGROUND
On October 28, 1998, H.R. 2281, the Digital Millennium Copyright Act ("DMCA"), was enacted into law. Section 104 of the DMCA directs the Register of Copyrights and the Assistant Secretary of Commerce for Communications and Information to prepare a report for the Congress examining the effects of the amendments made by title 1 of the Digital Millennium Copyright Act, ("DMCA") and the development of electronic commerce on the operation of sections 109 and 117 of title 17, United States Code, and the relationship between existing and emerging technology and the operation of such sections.

SUMMARY
The Digital Millennium Copyright Act (DMCA) was signed into law by President Clinton on October 28, 1998. The legislation implements two 1996 World Intellectual Property Organization (WIPO) treaties: the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty. The DMCA also addresses a number of other significant copyright-related issues.

The DMCA is divided into five titles:

Title I, the "WIPO Copyright and Performances and Phonograms Treaties Implementation Act of 1998," implements the WIPO treaties.

Title II, the "Online Copyright Infringement Liability Limitation Act," creates limitations on the liability of online service providers for copyright infringement when engaging in certain types of activities.

Title III, the "Computer Maintenance Competition Assurance Act," creates an exemption for making a copy of a computer program by activating a computer for purposes of maintenance or repair.

Title IV contains six miscellaneous provisions relating to the functions of the Copyright Office, distance education, the exceptions in the Copyright Act for libraries and for making ephemeral recordings, "webcasting" of sound recordings on the Internet, and the applicability of collective bargaining agreement obligations in the case of transfers of rights in motion pictures.

Title V, the "Vessel Hull Design Protection Act," creates a new form of protection for the design of vessel hulls.

The Digital Millennium Copyright Act (Acrobat PDF) may be reviewed at: http://www.loc.gov/copyright/legislation/hr2281.pdf

For more information please visit the U.S. Copyright Office Online

LICENSING & ROYALTY INFO
It All Begins With A Song

Songwriter -- the very lifeblood of the music business and one of the most lucrative aspects of the music industry. Writing one song that becomes a standard (Willie Nelson’s “Crazy”) would set you financially for life if you did not sign your rights away (like the Beatles or many groups of the Sixties). The songwriter needs the publisher for several reasons. They hope the publisher collects, distributes and administers all royalties to him from: live performances of the writer's song(s), radio airplay of his song, jukebox collections, sale of albums via an artist, TV rights, commercial rights (Nike, Coke, Reebok), derivative works (parodies, Muzak and other variations) and now Karaoke licenses. A publisher’s second job is to place a songwriter's song with an artist or use. A publisher tries to match an artist’s personality with the songwriters' tunes. This is what is known in the industry as “shopping a tune." (Amy Grant would not sing a song titled “The Horizontal Boogie.”) Enforcement of the songwriters’ catalog of copyrights is also one of the publishers' duties.

Where friction is caused between the writer and publisher is the age old battle of art versus commerce or the commercialization of art. Most artists seek a publisher with common ideologies. Examples would be “make money anywhere, anytime, anyway” philosophy, or “my songs are sacred and no one gets them” school of thought. Finally, my songs are gifts from heaven and should be shared by all free of charge.

ASCAP - BMI - SESAC - collect performance royalties. This is one of the most misunderstood areas for KJs. Any bar or club that plays any kind of music, whether it be a jukebox, live band, radio or Karaoke host, must pay a fee for the use of music in a public place. If the club has no music, then the KJ or club owner must work out a deal as to who is going to pay the fees for the license of the bar or club. Other examples where fees would be collected: coliseums, arenas, stadiums, TV stations, radio stations, restaurants, night clubs, bars, music on hold, buildings that have piped in music (Muzak), malls, talent shows, airplanes, hotel/motel, aerobic clubs/health clubs, Circuses, educational institutions -- anytime music is used for public performance.

There are generally three types of ways to collect:

• Blanket license for most buildings and fixed installations of music playback equipment where there is a commercial use.
• Per Event/Use for one time shows or events.
• Reporting, Audits, and Monitoring which is generally used in the radio and broadcast industries.

Songwriters affiliate with one of these organizations to collect performance money. These groups do not collect for the sale of any product.

Remember, the physical product (CD, cassette, videotape, etc.) and the intellectual material (performance) are two different things. An analogy would be a book is just paper, but take thousands of words arranged a certain way, and you get a scary Stephen King novel.

Mechanical Rights - a license fee - a flat fee called the Statutory Rate set by the Copyright Royal Tribunal (US Government) that sets the rate (currently at .075 per song per copy) for every time a song is “mechanically fixed” in a medium ( i.e. CD, CD+G, records, cassettes, video tapes, etc.). The main clearing house for mechanical licenses is the Harry Fox Agency in New York City. Harry Fox is not a living person.

Compulsory License - If a publisher does not wish to “participate” in the licensing of the song, you can record their tune and “force” them to take the money by filing for a Compulsory License. With this type of license you must report accounting once a month as opposed to quarterly with Harry Fox .

Lyric Reprint Rights -- are requested directly from the publisher who controls the copyright. Many manufacturers try to include lyrics for songs. Lyric licenses are for the words only and not the musical notation or notes found in music books. Those are standard musical notation reprint rights and are different from just having the words.

However, not all Karaoke products receive reprint licenses. The manufacturer may not be allowed to use them (some Disney or ABKCO), or one writer may hold out on his share of ownership of that song (Jackson Browne - "Take It Easy"), or they are too expensive to use (Clint Black written songs) or they hate Karaoke and do not wish to be associated with the format (Gloria Estafan, Andrew Lloyd Webber). These lyric licenses may be granted or rescinded at the will of the songwriter at any time. Getting the lyrics in the catalog one time does not mean it will always stay. Likewise a songwriter may change publishers or publishers may buy or sell a writer's catalog. The ability to deny or receive a lyric request sometimes moves with a writer's publisher.

Synchronization Rights - using visuals or graphics with the music. In the sense of CDG it is a mechanical and reprint right all in one. The Karaoke manufacturer will probably go directly to each publisher to ask for this permission. They will pay an advance against future sales as well as a fixing fee which allows you to “affix” the music with the visuals. MTV, movie scores and movie soundtracks and Karaoke LD’s are clear examples of synchronization use.