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WASHINGTON, D.C. –- January 28, 2016 — Today, the Copyright Alliance issued a statement on the recently-released Department of Commerce White Paper on Remixes, First Sale and Statuary Damages.

The Copyright Alliance appreciates the comprehensive and thoughtful discussion of the complex copyright policy issues considered in the White Paper.

According to Copyright Alliance CEO, Keith Kupferschmid, “in crafting copyright policy, we recognize that all interested parties must work together – including creative sectors, technology sectors, user groups and the public – as partners toward the same goal; and our collective goal is a thriving internet ecosystem that incentivizes creators to produce and disseminate new works to the public.” Kupferschmid continued by saying “this partnership should also encourage dynamic innovation and growth for technology companies as they collaborate with creators in making the works available through innovative new legal platforms while benefiting users who are certain to reap the rewards of new creative works offered on new platforms.

lock_sm“We think that many of the conclusions reached and recommendations made in the White Paper published earlier today help advance these goals. The authors of the White Paper did a thorough job soliciting and considering the many different viewpoints voiced by the interested parties, and the final result reflects a broad consensus. In particular, we highlight the White Paper’s discussions of remixes and the first sale defense and endorse its conclusions that the existing provisions in the Copyright Act, in conjunction with new business models, are effectively meeting the changing demands of consumers and that no change in the law is necessary at this time.”

Kupferschmid concluded by saying that “we look forward to working with leaders at the Patent and Trademark Office and the National Telecommunications and Information Administration, as well as the other stakeholders, on next steps the Task Force may take.”

The complete White Paper is available for review here.

In today’s music business, a musician needs to understand and receive all the various streams of revenue that they are entitled to for their musical works. However, many of today’s artists are uninformed as to what royalties they are entitled to; and, even more musicians are not properly registered nor have their works indexed. This prevents the artist from receiving all the income earned for their creative works. One of these most important streams of income that many musicians fail to recognize or handle properly  are the revenues collected by SoundExchange.

Sound Exchange is a performance rights organization authorized to collect royalties for the digital performance of sound recordings under Section 114 of the U.S. Copyright Act. The right to these funds was originally established with the passage of the Digital Performance in Sound Recording Act of 1995 and later expanded by the Digital Millennium Copyright Act. Originally, SoundExchange was created by the Recording Industry Association of America (R.I.A.A.) to handle these new revenues; however, Sound Exchange eventually became its own stand-alone entity representing the interests of over one hundred thousand artists and copyright owners. As of August 5, 2015, Sound Exchange has reportedly paid over $3 billion directly to its artist and label members (http://www.soundexchange.com/pr/soundexchange-breaks-the-3-billion-mark/).

Unlike the other performance rights organizations in the United States that collect royalties for the public performance of musical compositions (i.e., ASCAP, BMI, and SESAC); Sound Exchange is the only entity authorized to collect royalties for the digital performance of a sound recording. Sound Exchange derives its authority, pricing and guidelines from the Copyright Royalty Board, which is appointed by the U.S. Library of Congress. SoundExchange is run by a board of directors that includes nine artist representatives and nine label representatives. This structure gives artists an equal say in the running of the organization.

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SoundExchange is authorized to collect digital performance royalties on behalf of the owners of the sound recording copyright (i.e., the actual recording of a performance of the musical composition, which is referred to as the “master recording”). Typically, the sound recording copyright is transferred to the record label as a part of the recording contract with the musician. However, there has been an increase in sound recording ownership by the artists themselves as record labels are extending far fewer recording contracts than they had done in the past. This fact is further evidenced by the large number of musicians who are involved in “Do-It-Yourself” music promotion and distribution without any traditional record label assistance.

Additionally, it is essential to understand the difference in the types of revenues collected by SoundExchange and those collected by “small” Performing Rights Organizations, such as ASCAP, BMI, and SESAC in the United States. Performing Rights Organizations collect “small” public performance royalties for the owners of copyrighted musical composition (the underlying musical composition). These public performance royalties are paid to the music publishers, songwriters and composers of the song. For example, when Jimi Hendrix’s version of “All Along The Watchtower” is played over an analog radio station, the songwriter, Bob Dylan (in addition to the song’s publisher) receive royalties from the appropriate Performing Rights Organization as the original composer of the song. In contrast, Sony Music, as the sound recording owner, and Jimi Hendrix, as the featured artist, would receive royalties from SoundExchange for the song’s recordings’ transmission over a non-interactive digital platform, for example, when the song is played on Pandora. Accordingly, companies and artists can collect royalties from both sources (i.e., one royalty for the musical composition copyright and another for the sound recording copyright) as these organizations work with each other to pay musical creators the royalties they have earned from these distinct streams of income.

Under Section 114 of the American Copyright Act, SoundExchange is only authorized to issue statutory licenses for non-interactive digital platforms. These include satellite radio stations (e.g., SiriusXM Radio), internet radio stations (e.g., iHeartRadio.com), non-interactive digital music streaming services (e.g., Pandora) as well as digital cable and satellite TV services (e.g., Music Choice, Muzak, DirecTV, Dish Network). A comprehensive list of all the current licensees is available from SoundExchange at http://www.soundexchange.com/wp-content/uploads/2015/10/2015-Q3-Licensee-Count-10-19-2015.pdf. For example, Pandora is a non-interactive service as it plays similar artists and songs based on a user’s selections and preferences; whereas, Spotify is an interactive service that enables a user to determine the exact song they wish to hear at that moment.

Each non-interactive licensee pays a statutory rate that is determined by a variety of factors, including the number of stations or channels, the number of listeners or subscribers, and/or the amount of advertising and other revenues earned by the licensee. In contrast, on-demand or interactive music streaming services, such as Spotify, are not subject to SoundExchange statutory licensing. These interactive services must enter into separate licensing agreements with the song’s copyright owners to utilize the works.

To pay its members, SoundExchange receives monthly reports from each of its licensees listing exactly what each licensee has performed that month. This data is compiled and utilized to distribute the licensing fees collected by SoundExchange to the appropriate6a00d83451b36c69e201b8d1897e71970c-800wi
parties on a pay-per-play basis. Of the total amounts collected, 50% percent of these funds are distributed to the owner of the song’s sound recording (typically, a record label), 45% of these funds go to the featured performer on the track (typically, the musician) and the remaining 5% of these funds are distributed to the non-featured performers on the track through the American Federation of Musicians (A.F.M.) and American Federation of Television and Radio Artists (A.F.T.R.A.). Additionally, SoundExchange takes a 4.6% administrative fee “off the top” of the total funds collected to handle these matters on behalf of its members.

Additionally, these royalties are very important to an artist as the funds are distributed directly to the recording artist without the artist’s respective share being first distributed to the artist’s record label. Typically, if the record label were to receive these funds first, they could potentially apply the funds against any unrecouped balance amount owed to the label; however, SoundExchange prevents this by distributing the funds directly to the artist. This distribution system is extremely advantageous to an artist, especially those signed to a major record label, as the artist can continue to receive SoundExchange payments without being fully recouped with their record label, which is not the case with most other royalties accrued in the music industry.

Also, SoundExchange currently holds at least $200 million in royalties owed to non-member artists. Most of these artists are unaware of the existence of this relatively new digital performance right and of the organization, SoundExchange, which administers the licensing. With the rise in popularity of Internet radio stations and music streaming services coupled with the decline in CD and download sales, it is essential that record labels and recording artists properly register with SoundExchange to ensure proper collection and distribution of all the royalties owed to them. SoundExchange’s distribution numbers have steadily risen in recent years and should continue to increase as more users switch from downloading media to streaming-based digital music services.

In conclusion, in order to receive the full value of an artist’s work, they should sign-up with SoundExchange and ensure that their musical repertoire is properly indexed to receive all the amounts they are entitled to. Additionally, SoundExchange does not administer royalties on behalf of downloaded material, as that is typically handled by the sound recording copyright owner (the record label).

Collins Connect handles all matters pertaining to music and the law, contact our office for help in registering your copyrights as well as indexing your works with ASCAP, BMI and SoundExchange visit www.collinsconnect.org.

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A comprehensive effort to review music licensing concluded Thursday with the release of the U.S. Copyright Office’s Music Licensing Study. The 245-page document is the result of the Copyright Office’s request for comments on a variety of licensing issues as well as hearings in New York, Los Angeles and Nashville.

The Office guides and informs Congress on the complicated matters of copyright. As such, this report should influence Congress as it attempts to update copyright law in the coming years.

During its study, the Office found a broad consensus across four principals: music creators should be fairly compensated; the licensing process should be more efficient; market participants should have access to authoritative data to identify and license sound recordings and musical works; and usage and payment information should be transparent and accessible to rights owners.

Why Tuesday’s Music Licensing Hearing is a Big Deal

It also provided addition principles it feels should guide copyright reform: government uses of music should aspire to treat like uses of music alike; government supervision should enable voluntary transactions while still supporting collective solutions; rate-setting and enforcement of antitrust laws should be separately managed and addressed; and a single-market oriented rate-setting standard should apply to all music uses under statutory licenses.

Here are just some of the standout aspects of the Copyright Office’s proposed rate-setting framework:

— A more equal footing for sound recordings and musical works. At least in the digital realm, the Office believes “sound recordings and the underlying musical works should stand on more equal footing.” An alternative, free-market approach “would give copyright owners an opt‐out right to withdraw specific categories of rights from government oversight in key areas where sound recording owners enjoy such benefits–namely, interactive streaming uses and downloads.” Music publishers have long complained that musical works shared too little in digital royalties.

— Replace the 801(b) standard with a single, market-oriented standard such as the “willing buyer, willing seller” (“or some alternative formulation”) for both sound recordings and musical works. The 801(b) standard used is currently used to set rates for satellite and cable radio. Rates for webcasters like Pandora are set using the market-based “willing buyer” standard.

Licensing Hearings in June Expanded, to Include David Israelite, Neil Portnow

— Allow publishers to withdraw from PROs for interactive streaming. However, the Office believes these withdrawals should be limited — “at least for now” — to interactive streaming rights for digital services. Publishers that opt out would be required to provide a list of withdrawn works to a central source (some kind of “general music rights organization”).

— Allow for transparency in direct deals. The Office suggests direct deals between rights owners and digital services (negotiated outside the performing rights societies) allow songwriters and artists to elect to receive their royalties from “the licensee through their chosen licensing entity.”

— Bundle mechanical and performance rights. Supported by industry stakeholders, this proposal would allow PROs and other entities to become “music rights organizations” that offer both mechanical and performance rights for musical works.

— Allow for blanket licenses for digital uses under Section 115. A move to a blanket license system would eliminate concern about liability and “allow marketplace entrants to launch their services–and begin paying royalties–more quickly.”

East Village Radio to Close, Cites High Cost of Licensing

— Fully federalized pre-1972 recordings. The Office believes pre-1972 recordings, currently subject to state laws, should be brought within federal law “with the same rights, exceptions, and limitations as more recently created sound recordings.” The lack of federal protection has meant some digital services do not pay performance royalties for pre-1972 recordings.

— Establish of a new public performance right for sound recordings. These rates would be negotiated in a free market. Sound recordings do not currently have this public performance right, although some labels have negotiated deals for performance royalties with terrestrial broadcasters that also cover webcasting.

— From rate courts to CRB. The Office hopes for a “productive reconsideration” of 75-year-old consent decrees that bind ASCAP and BMI to the Department of Justice. Similarly, the Office suggests rate-setting of public performances of musical works could be more appropriately handled by Congress, via the CRB, than the DOJ.

— Incentives to create an “authoritative public database.” The Office believes any solution to the music data problem should be built by private actors rather than the government.

Register Your Business Name
Naming your business is an important branding exercise, but if you choose to name your business as anything other than your own personal name then you’ll need to register it with the appropriate authorities.

This process is known as registering your “Doing Business As” (DBA) name.

What is a “Doing Business As” Name?

A fictitious name (or assumed name, trade name or DBA name) is a business name that is different from your personal name, the names of your partners or the officially registered name of your LLC or corporation.

It’s important to note that when you form a business, the legal name of the business defaults to the name of the person or entity that owns the business, unless you choose to rename it and register it as a DBA name.

For example, consider this scenario: John Smith sets up a painting business. Rather than operate under his own name, John instead chooses to name his business: “John Smith Painting”. This name is considered an assumed name and John will need to register it with the appropriate local government agency.

The legal name of your business is required on all government forms and applications, including your application for employer tax IDs, licenses and permits.

Do I Need a “Doing Business As” Name?

A DBA is needed in the following scenarios:

Sole Proprietors or Partnerships – If you wish to start a business under anything other than your real name, you’ll need to register a DBA so that you can do business as another name.
Existing Corporations or LLCs – If your business is already set up and you want to do business under a name other than your existing corporation or LLC name, you will need to register a DBA.
Note: Not all states require the registering of fictitious business names or DBAs.

How to Register your “Doing Business As” Name

Registering your DBA is done either with your county clerk’s office or with your state government, depending on where your business is located. There are a few states that do not require the registering of fictitious business names.

Is this the future of music? We continue to look at artist revenue streams.

Now that we’ve been blessed with a few data sets we’re going to be digging deeper into cross referencing them in the hopes of building a much better overall view of the marketplace for independent musicians. This is especially true in the area of music streaming rates and royalties.

We hoping to provide as much open and transparent information as we can get on artists revenue streams. Through the release of these posts offering per play rates, relative market share of these companies, and the distribution tiers at different unit thresholds we hope artists will use these tools to model a better understanding of their revenue potential on digital platforms.

Service Market Share Streams Market Share $$$
Spotify 61% 69%
YouTube* 32% 12%
Deezer 2% 4%
Amazon Cloud 2% 0%
Rhapsody 1% 3%
Muve Music 1% 1%
Rdio 0% 1%
Xbox Music 0% 2%
MediaNet 0% 1%
Google Play 0% 2%
Nokia 0% 0%
simfy 0% 0%
MySpace Music 0% 0%
Amazon MP3 0% 5%
eMusic 0% 1%
VerveLife 0% 0%
TOTAL 100% 100%

* These YouTube numbers are not directly comparable to the rest of the numbers as the information comes from a different data set of considerably less titles than the larger data set.

That being said there are still a few important take-a-ways in looking at this data even on a percentage of market share basis. If we doubled the amount of YouTube Streams to match the amount of Spotify streams (48% YouTube Streams and 47% Spotify Streams) the revenue disparity still places Spotify 3x’s higher at 62% of overall revenue market share versus YouTube’s only 21% of market share revenue. Simply said, you have to stream at least 3x’s more on YouTube to equal the same amount of revenue generated from YouTube.

Service  Market Share Streams Market Share $$$
YouTube (x’s2) 48% 21%
Spotify 47% 62%
Deezer 2% 3%
Amazon Cloud 1% 0%
Rhapsody 1% 2%
Muve Music 0% 1%
Rdio 0% 1%
Xbox Music 0% 2%
MediaNet 0% 1%
Google Play 0% 2%
Nokia 0% 0%
simfy 0% 0%
MySpace Music 0% 0%
Amazon MP3 0% 4%
eMusic 0% 1%
VerveLife 0% 0%
TOTAL  100% 100%

Our conclusion is that this is a very compelling reason to remove as much of your music from YouTube as you possibly can and redirect streaming music consumers to Spotify where you will earn at least 3x’s more for the same amount of streams.

Of course, creators and musicians are not given this type of consent over the use of their music on YouTube and the new CMS Services like Audiam exist only to monetize illegal and unlicensed user generated content (UGC) uploads to YouTube, and at significantly lower per play rates than the ones we’ve been tracking that pay 100% of earned revenue.

This just confirms what we’ve known all along. Google not only profits greatly from the illegal and unlicensed uploads of an artists work to YouTube, but artists are more and more powerless over having their work exploited against their will.

Here are some compelling stats on the break down of what percentage of videos on YouTube actually achieve breaking the 1 million play threshold, only 0.33%

CHART OF THE DAY: Half Of YouTube Videos Get Fewer Than 500 Views | Business Insider

Some 53% of YouTube’s videos have fewer than 500 views, saysTubeMogul. About 30% have less than 100 views. Meanwhile, just 0.33% have more than 1 million views.

That’s not a huge surprise. But it highlights some of the struggles Google could have selling ads around all those unpopular videos, despite the money it has to spend to store them.

What would be welcomed would be an Audiam like service that also allows artists the ability to use CMS to remove as much of their content from YouTube as they can, and not just have a gun to their head to monetize it or lose the money that is being made from Google monetizing it against their will.

Why does this just feel like just so much more extortion and exploitation?

It makes sense to protect and copyright a song if you hope to profit from its recording and public performance – but how do music copyrights work?

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So you’ve written a new song. It may have the potential to be a hit, but one thing is certain: it makes sense to properly protect and copyright a song if you hope to profit from its recording and public performance. How do music copyrights work? What is required to have ownership of your song’s copyright? Why should you register it with the Library of Congress? What are some of the common music licenses that generate income for songwriters?

What is a copyright?
According to attorney Don Passman’s authoritative book, All You Need to Know About the Music Business, a copyright is a “limited duration monopoly.” When the founding fathers first established copyright in intellectual property, the term of that exclusive control was fourteen years. Since that time, copyright duration has been extended, to the point that today, once you properly register your song’s copyright, you and your heirs will have exclusive control of it for your own life, plus seventy more years.

While most songwriters or their publishers copyright a song and register the copyright with the Library of Congress (LOC), due to the way the law is written, a copyright actually exists the moment you fix your song in any tangible medium. So by recording it, writing out a lead sheet, or simply typing out the lyrics and printing them, you have created a tangible copy and at that moment in time, your song is protected by copyright.

So why bother to register your new song with the Library of Congress? Because until such time as it is officially registered as a new work with the LOC, you have some, but not all of the various protections that copyright law provides.

The first and most important result of registering your song with the LOC is that a permanent and unequivocal date of copyright registration is established. Should your song be used without your consent, this date will be used by a court of law to affirm that the use or unauthorized adaptation occurred after you registered your song. Such unauthorized use is commonly referred to as an “infringement.”

Once your song has been registered, the full weight of copyright law can be used to protect your song, should it be used unlawfully. Penalties for using a copyrighted work without permission can be substantial, running anywhere between $750 and $30,000 for each infringed work. If a defendant willfully infringed, that is, he or she knew your song was protected by copyright, statutory damages can rise to $150,000 per infringed work.

One more benefit of registering your song is that if you have a valid LOC registration for your song and the court decides in your favor, the infringing party will likely have to pay your legal fees in addition to whatever statutory damages are required.

A copyright owner’s five exclusive rights
Once you have a song that you’ve registered with the LOC, you have the foundation to exploit your song to earn money. Song copyright owners enjoy the same five exclusive rights that any author of a novel, screenplay, painting, poem, or other intellectual work has. These include the right to exclusively:

1. Reproduce the work
2. Distribute the work
3. Perform the work in public
4. Allow a derivative work to be made
5. Display the work in public (applies mostly to visual media and artwork)

Anyone making unauthorized copies without a copyright owner’s permission, distributing unauthorized copies, using a sample without permission, or allowing performance of the work in public without proper payment of public performance royalties is in violation of one or more of these exclusive rights.

In practice, songwriters will often assign their song’s copyright to a music publisher in order to maximize the revenue opportunities. It then becomes the job of the publisher to develop as many licensed uses of your song as possible. Such uses may include cover versions of your song; placements in TV, film, and video games; use of your song in a commercial, greeting card, or on a compilation album. In exchange, the songwriter will normally share the revenue 50-50 with the publisher. Whenever your song is performed on radio or TV, it generates a public performance royalty that the three U.S. Performing Rights Organizations (PROs) – ASCAP, BMI, SESAC – monitor and then collect a royalty on the behalf of the songwriter and publisher. Each writer may only affiliate with one of the PROs.

Song vs. Master copyrights
Prior to 1972, the recording of your song was not protected by copyright, although the underlying musical ideas, usually represented by the lyrics and music that made up your song, were covered. At that time, Congress changed the law to extend copyright protection to sound recordings. This meant that for artists signed to one of the major record labels, the sound recordings they made in the studio usually became the property of the record label, based on the fact that in almost all cases, the label bankrolled these master recordings.

Record labels quickly realized these master rights represented a new stream of royalty income and began to exploit them. When you hear an original recording of a Motown classic such as “I Heard It Through the Grapevine” by Marvin Gaye in a motion picture, Motown/Universal has granted a master license to the filmmaker, while the songwriter’s publishing company, in this case Stone Agate/EMI Music Publishing, granted a song license to use the music in the film. So in this way, a recording of a song has two copyrights simultaneously existing: one in the underlying song, a second in the master recording of that song.

For the DIY band that has released its own album, they can simply send in a copy of their finished album to the LOC and register both the songs and the master recordings to receive full protection. Then, if a filmmaker wishing to use their song were to contact the band, they would be in a position to request a license fee for both the song use AND the master use, assuming the budget allowed for such fees. In practice, the filmmaker might have a limited budget, but remember that if you own your song and your master recording, you actually hold two distinct copyrights.

Licensing lingo
In the world of music licensing, there are various types of music licenses, each of which is referred to by one of more common terms. It makes sense to learn these basic terms so that if you are speaking with a music publisher or anyone wishing to use one of your songs or master recordings you are starting from a common point. Here are four of the more common terms used in music licensing.

Mechanical License. This is the permission to use your song to record, manufacture, and distribute a new sound recording of your song. Even if you are recording your own song for a record label, under the terms of your contract, the label will need to secure a mechanical license before making the records and offering the song as a download. (Yes, downloads count as a record and as such, the publisher or songwriter must give advance permission to distribute or sell a song online.) Mechanicals, as they are frequently referred to, are audio-only licenses.

Synchronization License. Any use of your song in support of a visual medium is a synchronization (or synch, for short) license. When you hear a song used on a TV show or motion picture, a synch license was secured to pay the publisher for that use. Depending on the importance of the song in the context of the film or TV series, such licenses may generate tens of thousands of dollars shared by the publisher and writer.

Blanket License. Ever wonder if Queen earns a royalty when you hear “Bohemian Rhapsody” blaring over the sound system at your local bowling alley on Rock ‘n’ Bowl night? They do. The three PROs typically secure annual agreements with any business or venue that features music playback or performance as part of its operations. The cost for such blanket licenses varies depending on the size of the venue and typical audience size. For example, the blanket license fees paid by Madison Square Garden to use music during a NBA basketball game will be proportionally higher than your local bowling alley pays. But both types of venues help add to the songwriter and publisher’s revenue streams when a song is frequently played.

Master License. This is the license needed to use a master sound recording in any commercial setting. Record labels often control most masters performed by top artists as they invested the money to record them in the first place. However, more bands are deciding to take the totally independent route, which will often result in the band retaining the master rights for their sound recordings. When such a band gains enough notoriety to attract the interest of a TV or film music supervisor, they may be in a position to profit from granting a master license and a song license if they also wrote the song in question.

Music Publishing 101

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COPYRIGHT LAW BASICS

Article 1, Section 8 of the Constitution of the United States

“Congress shall have the power to … 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.”

 

U.S. COPYRIGHT ACT

Grants Exclusive Rights to Copyright Authors or Owners

  • Right to Reproduce
  • Right to Make Derivative Works
  • Right to Distribute
  • Right to Perform
  • Right to Display

EVERY RECORDED SONG CONTAINS TWO COPYRIGHTS

   1) MUSICAL COMPOSITION
   The notes and lyrics of the song

   2) SOUND RECORDING
   The Recording Artist’s recorded version of the song

Even if the recording artist is the songwriter, two copyrights are created – one for the sound recording and one for the musical composition.

 

What is a Music Publisher

A music publisher works with songwriters to market and promote their songs, resulting in exposure of songs to the public and generating income. Music publishers “pitch” songs to record labels, movie and television producers and others who use music, then license the right to use the song and collect fees for the usage. Those fees are then split with the songwriter.

 

Music Publishers and Record Labels

Songwriters enter into publishing, co-publishing, or administration agreements with music publishers. In exchange for acquiring the copyright, a portion of the copyright, or a percentage of the revenue earned from the exploitation of the musical composition, the music publisher seeks opportunities to exploit the musical composition, collects revenue from the exploitation, and pays and accounts to the songwriter. The music publisher share is usually 50%.

Recording artists assign their copyrights to a record label in exchange for a negotiated royalty.

 

NMPA

The National Music Publishers’ Association (NMPA) was founded in 1917, NMPA is a trade association representing over 800 American music publishing companies in the United States. Its mission is to protect its members’ intellectual property rights on the legislative, litigation and regulatory fronts. The NMPA is the voice of both small and large music publishers and remains the most active and vocal proponent for the interest of music publishers and songwriters in the US and throughout the world. The NMPA also wholly owns and controls the Harry Fox Agency, the largest mechanical rights collecting society in the United States, with over 36,000 publishing members.

 

Types of Licenses Issued by Music Publishers

  • Reproduction (Mechanical) Licenses
    Music distributed in physical and digital form. The royalties are generally collected and paid by the Harry Fox Agency.
  • Public Performance
    Licenses Music broadcast on radio (terrestrial and satellite), in live venues, and other public places. The royalties are collected and paid by public performance societies (ASCAP, BMI, and SESAC). Each broadcaster receives a blanket license from each performing rights society, in exchange for a royalty fee.
  • Synchronization Licenses
    Music used in film, television, commercials, music videos, etc. Publishers enter into direct licenses with users.
  • Folio Licenses
    Music published in written form as lyrics and music notation either as bound music folios or online lyric and tablature websites. Publishers enter into direct licenses with users.

 

First Use of Musical Composition

Songwriters and recording artists generally have the right to approve first use of their work.

Recording artists (or their record labels) continue to have the right to approve subsequent uses of their sound recordings by third parties.

While songwriters (or their publishers) generally have the right to approve subsequent uses of their musical compositions, the songwriter does not have an absolute right to approve the reproduction of their musical composition in copies and phonorecords. Sec. 115 of the Copyright Act provides that a user may secure a compulsory license to make copies and phonorecords of the musical composition, without the authority of the songwriter.

 

Section 115 Compulsory License Requirements

  •   – The musical composition must be a non-dramatic musical work (not an opera or musical.)
  •   – The musical composition must be previously recorded.
  •   – The previous recording has been distributed publicly in the U.S.; and
  •   – The use of the recording will be in phonorecords only (audio only).

 

Compulsory License Rate Setting

The royalty rate paid to the songwriter under a compulsory license is set by an independent government tribunal called the Copyright Royalty Board (CRB). The fi rst rate for a mechanical compulsory license – 2 cents a song – was initially set by Congress in 1909. Eventually the rate setting job was delegated to Copyright Arbitra-tion Panels. Finally, in 2002, Congress created the CRB to bring autonomy and accountability to the rate setting process.

 

Recent Ruling of the Copyright Royalty Board (CRB)

 

In a ground-breaking ruling, the CRB established the following rates:

  • Physical Product – 9.1 cents
  • Digital Product – (digital phonorecord delivery) – 9.1 cents
  • Interactive Streaming – (for subscription services) and ephemeral copies – the industry stakeholders entered into a settlement agreement providing a percentage of revenue royalty. For the first time, the parties acknowledged that a mechanical royalty is due for interactive streaming.
  • Ringtones – 24 cents
  • Late Fee – for the first time, the CRB established a late fee of 1.5% per month, to be paid to the publishers if royalties payments are late.

 

The Harry Fox Agency

The compulsory license is issued by the Copyright Office. However, very few people secure compulsory licenses through the Copyright Office because of perceived onerous requirements like monthly accounting. Instead, most users secure a license through the Harry Fox Agency, which among other benefits, only requires quarterly accountings. More importantly, the Harry Fox license uses the CRB rate as a benchmark, so the CRB process is still very important.

 

Current Challenges

Controlled Compositions
Implementation of CRB Ruling – Late Fees
Collecting Performance Royalties in Audiovisual Downloads
Accelerating payments from record labels and other third-party users, like I-Tunes – flowthrough problem.
Piracy
Orphan works

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Why independent songwriters should register the copyright for their music

When you submit a song for copyright you’re simply proving the date of submission of your work. The fine folks of the copyright office don’t sit around listening to every submission to see if they’ve heard it before. That would be an impossible task. When you write or record your song, technically, you’ve created it — and thus you own the copyright to it. By submitting a song to the copyright office, you’re protecting your music simply by acknowledging the date of its creation.

It’s also important to note that certain aspects of your song are not protected even if you’ve registered the copyright. These include:

* chord progressions

* the overall idea or concept of your song

* and a title or short phrase

Just think about how many songs have used cliche ideas like “I wish you were here,” or “What doesn’t kill you makes you stronger.” Also, imagine how many copyright infringements there would be if the I – V – vi – IV chord progression could be copyrighted. On the other hand, melodies and the actual lyrics are very much covered under copyright protection.

Beginning the copyright registration process
The website for submitting your song for copyright in the United States is http://www.copyright.gov/. On this website, you’ll be able to print forms for mailing in the music you want to copyright, or you can submit your music for copyright online, which makes submitting even easier.

When it comes time to copyrighting your music, there are two forms you can use as a songwriter. They are Form SR and Form PA. Technically, there are three forms, if you consider the fact that there’s also a short-form version of the PA form. But that offers the same protection as the PA form. SR stands for Sound Recording, while PA stands for Performing Arts. So how do you know which one to use? The following is from the Copyright Office’s website and will answer that for you:

When to Use Form SR (Sound Recordings)
Use Form SR for registration of published or unpublished sound recordings, that is, for registration of the particular sounds or recorded performance.

Form SR must also be used if you wish to make one registration for both the sound recording and the underlying work (the musical composition, dramatic, or literary work). You may make a single registration only if the copyright claimant is the same for both the sound recording and the underlying work. In this case, the authorship statement in Space 2 should specify that the claim covers both works.

Form SR is also the appropriate form for registration of a multimedia kit that combines two or more kinds of authorship including a sound recording (such as a kit containing a book and an audiocassette).

When to Use Form PA (Performing Arts)
For registration purposes, musical compositions and dramatic works that are recorded on disks or cassettes are works of the performing arts and should be registered on Form PA or Short Form PA. Therefore, if you wish to register only the underlying work that is a musical composition or dramatic work, use Form PA even though you may send a disk or cassette.

Examples of the Proper Use of Forms PA and SR
Jane Smith composes words and music, which she entitles “Blowing in the Breeze.” Even though she records it, she is not interested in registering the particular recording but only in registering the composition itself. If she decides to submit “Blowing in the Breeze” for copyright registration, she should use Form PA.

Emily Tree performs and records Jane Smith’s “Blowing in the Breeze” after complying with permissions and license procedures. If Emily decides to submit her recording for copyright registration, she should use Form SR.

The same principles apply to literary and dramatic works. A recorded performance of an actor speaking lines from “Hamlet” could be registered on Form SR as a sound recording. The claimant in the sound recording, of course, has no copyright in the underlying work, “Hamlet.”

Copyright registration costs…
There is a cost associated with each application, whether it’s a Form PA or From SR. Check the Copyright Office’s website for the most up-to-date fees. The good news is, if you’re copyrighting your own music, you can submit multiple songs under one application for one application fee. So if you’re copyrighting an album of ten songs, as opposed to copyrighting them one by one, you’ll save a few hundred bucks when protecting your work. Plus it saves you the paperwork of copyrighting all of your songs separately.

Poor-Man’s Copyright, and Other No-No’s
It’s also worth mentioning that there are a couple makeshift copyright alternatives that songwriters occasionally like to talk about. I don’t recommend doing these. The most popular is called the “Poor Man’s Copyright.” This is when you physically mail a recording of your song to yourself via certified mail and keep it sealed. Supposedly the postmark on the envelope will date your music and therefore protect you if someone comes along after that and steals your song. A newer version of this idea is simply putting your song on YouTube or another time-stamped social media outlet. The idea is that your music is dated and therefore protected by the time stamp on the social media site.

Strong copyright law is an essential part of how songwriters and composers earn a living from their music. Yet many music creators have no idea what copyright law is, let alone how it’s impacting their lives. It’s become pretty clear in the last few years that the fate of copyright isn’t just in the hands of lawyers and lawmakers – it’s playing out on blogs, at music conferences, through social media channels and by word of mouth.

We compiled a list of five online copyright resources that will educate and provoke you, and hopefully inspire you to take action. Don’t let anti-copyright advocates dominate the discussion – read up, keep the conversation going and make your voice heard!

The ASCAP Daily Brief newsletter – click here to sign up is daily e-mail, compiled by ASCAP Board member Dean Kay, cuts through the media clutter to bring you links to the most relevant news and commentary on the rapidly evolving music industry. The range of topics and sources included in the Daily Brief is vast, but they’re all aimed towards empowering music creators (Kay’s a songwriter and publisher himself). Having him as a curator feels like you’re getting a private tour through the internet. It’s as vital to starting your morning right as a strong cup of coffee and a song in your heart.

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Copyhype – www.copyhype.com
Blogger/lawyer Terry Hart can talk legal precedents and dissect proposed legislation for days, but he’s got an unfussy writing style that will also resonate with non-legal audiences. Lucky for us Hart is a strong believer in the importance of intellectual property. While Copyhype.com doesn’t concentrate solely on music, Hart is great for frank and reasoned discussions of all the copyright-related topics du jour, and quite often that involves music. Every Friday he rounds up the most important copyright news from across the internet, like the ASCAP Daily Brief but with a narrower focus. The blogroll on the right side of Copyhype.com is also a great list of pro-copyright blogs and websites.

Copyright Alliance – www.copyrightalliance.org
This non-profit, non-partisan organization is dedicated to protecting the rights of creators and educating the public and lawmakers about the importance of copyright. Their website features in-depth editorials, forceful advocacy, copyright news, academic and legal papers and more. Executive Director Sandra Aistars’s blog posts are always cogent and insightful, and even the Copyright Alliance’s FAQ page is an indispensable resource.

Music Tech Policy – www.musictechpolicy.com
While Chris Castle’s fierce, opinionated blog doesn’t always focus on music, he consistently speaks truth to power, and is unafraid to call out major brands and tech companies for ignoring the rights of songwriters and composers to get paid fairly. His lucid reporting on the Internet Radio Fairness Act, and relentless criticism of Google and other websites’ hypocritical advertising policies, marks Castle as one of the most forceful advocates for the rights of music creators we’ve got.

The Trichordist – thetrichordist.com
Songwriter/guitarist David Lowery once fronted the alt-rock bands Camper van Beethoven and Cracker. He’s become a thoughtful pundit on what it’s like to be an artist in the digital age. Lowery’s not afraid to posit controversial opinions and call out websites and tech companies for hypocrisy – and we love him for it.