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Copyright Law

   COPYRIGHT LAW: A BRIEF OVERVIEW

Copyright Law in the United States dates back to 1790. The founding fathers included it in a clause in the Constitution, stating: “[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.” The law originally applied to books, maps, and charts. Protection was provided for fourteen years.

As time went on, the law expanded to include literary, musical, dramatic, choreographic, and audio-visual works, as well as sound recordings, compilations, architectural works, and derivative works (work based upon one or more preexisting works.) The length of time that a work was protected gradually increased as well.

Works are eligible for copyright protection if they are original, creative in origin, and “fixed in a tangible medium of expression.” The owner of a copyright has the sole right to distribute the work, reproduce the work, prepare derivative works based on the original, publicly perform or display the work, and digitally transmit the work. Copyright infringement occurs when one or more of these rights are violated.

The appropriation of copyrighted material can be considered Fair Use under law depending on the purpose and character of the use, nature of the copyrighted work, how much of the work is taken, and the effect on the original work’s commercial value. Works whose copyrights have expired, or have been waived, are under the public domain and can be used freely by anyone.

Modern copyright law has its basis in the Copyright Act of 1976, which went into effect on January 1, 1978. Under the Act, a copyright’s term would last for the life of the author plus 50 years, or 75 years for a work for hire (a contracted work created for an employer). For works that were created before 1978 that had yet to reach the public domain, the length of the term was the life of the author, plus 75 years.

In 1998, Congress passed the Sonny Bono Copyright Term Extension Act. It increased the copyright for works created after January 1, 1978, to 70 years after the life of the author. Works for hire would be protected for 120 years after they were created, or 95 years after they were published — whichever ended first. Works fixed before 1978 were copyrighted for 95 years after they were published.

Prior to 1972, only musical compositions were protected by federal law. The US Copyright Office defines a musical composition as “the melody, rhythm, and / or harmony expressed in a system of musical notation, and the accompanying words (lyrics).” The composers, lyricists, and songwriters are the recognized authors. In 1972, Congress amended federal copyright laws to protect sound recordings fixed after February 15, 1972. Sound recordings are defined as a “fixation of a series of sounds (e.g., a particular performance)”; its authors are the performers, producers and sound engineers.

The copyright for sound recordings published in the US before 1972 were left subject to state laws until 2067. Public performances of sound recordings were also under state jurisdiction. As a result, recording artists, engineers, and producers who were active before 1972 were typically uncompensated for songs aired on the radio or in public spaces. The Digital Millennium Copyright Act of 1998 gave federal copyright protection to digital performances of sound recordings, but excluded recordings fixed before February 15, 1972.

In 2018, The Music Modernization Act was established to compensate legacy artists, simplify the music licensing process, and meet the demands of the digital streaming era. Title I of the Act states that all digital streaming services must now use the same central database — known as the Mechanical Licensing Collective, to license music (a mechanical license is an agreement between the owner of a song’s copyright and the licensee that grants permission to release the song in an audio-only format. See a detailed explanation below). It will be overseen by the major music publishers Universal Music Publishing Group, Sony/ATV Music Publishing, and Warn er/Chappell Music, and will be paid for by the digital streaming services. The Collective is set to launch on January 1, 2021.

Title II is known as the Classics Protection and Access Act. It extends the copyright for Pre-1972 Sound Recordings to 95 years after it was first published or recorded, plus an additional period based on its publication date. For recordings published before 1923, the additional time period ends on December 31, 2021. Recordings fixed between 1923-1946 are granted an additional five years after the general 95-year term. Recordings fixed between 1947-1956 receive a 15-year extension, and recordings fixed between 1957 and February 15, 1972 are protected until February 15, 2067.

Title III states that engineers and producers are now eligible to receive royalties when the music they worked on is streamed digitally or broadcast on satellite radio.

The Music Modernization Act has been widely praised throughout the music industry. Its supporters include The Digital Media Association, National Music Publishers Association, BMI and ASCAP, Songwriters Of North America and Nashville Songwriters Association International, Songwriters Guild Of America, RIAA, A2IM, The Recording Academy and the National Association of Broadcasters.

MECHANICAL LICENSES

Most current music consists of two distinct copyright elements:

1. The composition itself, which consists of both the musical composition and the lyrics, each may have separate copyrights.

2. The sound recording, which covers both physical copies of the performance of the work (for example: vinyl records, cassette tapes, CDs, thumb drives and all digital formats – like MP3s) and public performances of the recording (like the radio). The copyright of the composition and the copyright to the sound recording are often held by different parties.

A mechanical license is a license provided by the holder of the composition copyright or musical work copyright to someone else so they can use it to cover, reproduce, or sample parts of the original composition. In United States Copyright Law, such mechanical licenses are compulsory: any party can obtain a license without the permission of the license holder by paying a set license fee. As of 2018, the fee was set at $0.091 per composition or $0.0175 per minute of composition. The money is intended to go to the composition copyright holder. The fees are paid to agencies like the Harry Fox Agency, who either already represent the composition copyright holder, or are able to direct the funds to the right party. Mechanical licenses do not apply to the sound recording portion of the composition. If someone wants to use a recorded piece, they need a non-mechanical license from the copyright holder of the sound recording (typically, the musical performer or their agency representing them).

For example, a musical artist wants to sample the opening riff from “Every Breath You Take” by The Police. He first contacts the copyright holder of the underlying musical work and gets a mechanical license to use all or part of The Police’s song in his composition. He now has the right to reproduce all or part of “Every Breath You Take” in his new song. He cannot, however, purchase a recorded copy of The Police’s Greatest Hits, take it into the studio, pull the track and sample the riff into his new song. To sample from a copyrighted recording of The Police’s music, he needs both a mechanical license from the copyright holder of the musical work, and a non-mechanical license from the copyright holder of the recording (in order to copy/sample the recoding). He is free to hire musicians to reproduce the Police’s sound, but he cannot copy from any copyrighted recording with only a mechanical license.

A mechanical license can only be used after the original copyright holder has exercised their exclusive right of first publishing, or permission is negotiated.

In American law, US Code Title 17, Chapter 1, Section 115(a)(2) states: “A compulsory license includes the privilege of making a musical arrangement of the work to the extent necessary to conform it to the style or manner of interpretation of the performance involved, but the arrangement shall not change the basic melody or fundamental character of the work …” thus preventing mechanical licenses being used to make substantially derivative works of a piece of music.

Musicians can use a mechanical license for self-promotion. For example, a guitarist who performed/recorded a copyrighted musical work can obtain a mechanical license so he can distribute copies of the recording as an example of his guitar playing. Recording artists also use mechanical licenses when they want to record cover versions of other people’s songs. In the United States, this is required by copyright law regardless whether or not the copies are for commercial sale.