Monday, August 12, 2013

Copyright Ownership - Why It Matters

Whatever the level of success an artist, producer, or record label has within the music industry, one this is for sure: ownership of rights is a critically important issue. Whoever owns a song or video gets to decide how it’s used, and receives the monetary profits from its use. So obviously copyright law is something in which every budding music artist should fully verse themselves. But most of the time, if not all, it’s still important to consult an entertainment attorney when these issues arise to make sure one is making the correct decision for one’s career. Not doing this could mean the difference between making it big and remaining irrelevant. Below are some recent legal cases that may be of interest for those looking to make a career out of writing, performing, and/or recording music.

Now, let me first put this out there. Prince is my favorite artist of ALL TIME. One of the things that makes him my favorite artist aside from his brilliant artistry is the fact that he’s a brilliant businessman and a ruthless enforcer of his rights concerning his copyrighted material. Even if it’s only 6 seconds of his copyrighted material, which was the case when Prince invoked his right to issue a Digital Millennium Copyright Act (DMCA) takedown notice to the social media app Vine, ordering them to takedown videos that were being shown in their app where Prince’s performance recordings were being used.. More on the story is explained in the following video by Blain Bettinger who is an attorney with Bond Schoeneck & King and author on the Higher Education IP Law Report:

Mr. Bettinger touches on a very interesting point, which is the question of balance between the rights of the holder of the copyrighted material and the right of others to use material in a creative way. He mentions that the DMCA is abused at times, and one might say that Prince is going a bit overboard with asserting his rights in this case. In my opinion, though, he’s not. I’m pretty sure that if I were on the same level as Prince in my success, I would stop ANYONE from using my creations in a way that I didn’t authorize. Even if that use was only 6 seconds.

Now eventually, if a copyrighted work gets old enough and the copyrights expire or are not purchased by someone else, as song (or film) will end up in the public domain, in which time one is able to use it freely without getting copyright clearances. This is called fair use, but even fair use isn’t as simple as one might think. Take for example the recent case involving the song Happy Birthday to You. Would you think, just by taking a guess, that Happy Birthday to You was in the public domain and fell under fair use? Well if you answered “yes”, then you’d be incorrect. Happy Birthday to You’s copyright is owned by Warner/Chappell Music who happily charge $1,500 for the use of the song on screen. That is, they currently own the copyright. There is a pending lawsuit filed by Good Morning to You Productions Corp. that claims that the copyright assertion that Warner/Chappell Music has made all these years is indeed invalid. Read more on the case here.

I’m excited to hear about the outcome of this case, as it speaks directly to the reason that copyright law exists. If you go and read the factual background on the case, there is a long list of dates where Happy Birthday to You was NOT copyrighted by the original authors, the Hill sisters, nor was it copyrighted by the person to whom they sold their song. All this could have been avoided had the song been properly copyrighted in the first place, and the rights of that copyright transferred accordingly. Those who have paid the $1,500 to get the license to use Happy Birthday to You will likely be watching this lawsuit closely, as well as those who’d like to use it in their works. But for now, Happy Birthday to You remains out of the fair use aspect of public domain. So no recording the Happy Birthday to You song in your amateur documentary film that you might get into Sundance. Until this case is settled, Warner/Chappell will likely still want their money.

So who is it that chases down all the potential copyright infringements that may be happening all over the country? Well, this job lies with the P.R.O., or Performance Rights Organizations. I discuss these different organizations in a previous post. Someone asked me recently if it was legal for cover bands to perform in public places. I had to take pause for a minute, because I had never thought about the legal implications of that situation. My first instinct was to answer that, no, it was indeed probably NOT legal, and these bands were opening themselves up to lawsuits by doing so without proper licenses. Turns out, I was correct in that gut instinct. There was a recent case where a representative of ASCAP, the American Society of Composers, Authors, and Publishers, visited Roscoe’s Chicken and Waffles and heard not only a cover band playing copyrighted songs, but also songs being played from a jukebox that were not properly licensed. A full reading of the case can be found here. This lawsuit goes to show that it can be very costly to ignore a P.R.O. It is their sole job to track down and collect money for all performances of copyrighted material, and they take that job seriously. One would be wise to make sure that all appropriate licenses are obtained before opening a club where cover bands will perform or music will be played. If not, you may just end up like East Coast Foods and have to pay out a far greater amount of money in court fines than you would’ve had you just gotten the proper licenses in the first place. A great paper about this very issue can be found here, called What's Covering the Cover Band?
At any rate, the legal pitfalls that exist within the music industry are as vast as sands on a beach. One would be advised to hire an entertainment attorney to make sure that the legal t’s and i’s are being crossed and dotted. As evidenced by the previous cases and many more that are out there, to not do so will truly and in all reality be risking the shirt off one’s back. I believe the adage is pay now or pay later, but what isn’t added to that saying is that the later amount is likely one that will be much, much more. Play it safe. Get a reputable entertainment lawyer and stay out of the litigation lane.

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