Copyright protection exists to motivate musicians and songwriters to create music, protect their interests and help them get paid for their creations. An understanding of these protections can help you make informed decisions about the use of your copyrighted works, as well as using the work of other creative people.
Copyright protection, however, has its limits so that copyright owners don’t have too much power and abuse their rights. Here’s a look at some of the protections available to musicians and songwriters, as well as the limitations of those protections. For the first story in this series, click here.
If you want to cover someone else’s song and distribute it, you need to acquire a mechanical license. A mechanical license provides the right to record someone else’s song and distribute phonorecords (defined as a material object that embodies sounds, other than those accompanying audio-visual recordings, such as a cassette tape, CD or album) containing the song.
The owner of the copyright has to have already released or authorized a release of phonorecords containing the song. After that, anyone else can record that song and release phonorecords containing that song, assuming they have acquired the mechanical license.
To do so, the person wanting a mechanical license has to serve what is called a “Notice of Intention” on the copyright owner before or within 30 days after making the sound recording and before distributing any phonorecords containing the song. Then that person has to pay a royalty rate set by law for each phonorecord distributed and provide accountings on a monthly basis.
A mechanical license provides the right to make limited arrangements of the song. For example, you can change the key and tempo or play the song in a different style. You cannot make any major changes to melody, harmony, or lyrics. Things like remixes, mash-ups, sampling or adding new parts usually constitute a derivative work and do require other additional permissions from the copyright owner.
Once a copyright owner sells a copy of a copyrighted work, like an album, the purchaser can resell that copy without the copyright owner’s permission and without paying the copyright owner. The purchaser only has rights in the copy, and not the underlying copyrighted work. In effect, what this means is that artists and record companies don’t get paid twice when a CD or LP is resold.
Terrestrial Radio Exception
Terrestrial radio stations do not have to pay record labels for broadcasting sound recordings. They only have to pay publishers for broadcasting the underlying songs.
Copyright protection does not last forever. For works created in or after 1978, copyright protection lasts for the life of the author plus 70 years. For works created between 1923 and 1978, the length of copyright protection is more complicated, but it generally lasts now for 95 years.
Libraries and archives can make copies of copyrighted works, but for archival purposes only.
Instructors or students in nonprofit educational institutions can perform or publicly display copyrighted works in classrooms and, to a lesser extent, by distance learning.
Songs or dramatic musical works of a religious nature, like an oratorio, can be performed in the course of a religious service at a place of worship or religious gathering.
Not For Profit Purposes
Songs can be performed publicly if the performance is not for profit and no one is compensated. Admission must be free, or the proceeds must be used only for educational, charitable or religious purposes and the copyright owner does not formally object. These performances cannot be broadcast publicly.
Small Business Exception
Some small business establishments do not have to pay for radio broadcasts heard in their establishments if they use a home-style receiver and do not charge admission. This would be like a mom and pop store with a small radio playing in the background. Other establishments do not have to pay if they meet certain size and equipment requirements.
Fair use means that not all unauthorized uses of copyrighted works constitute infringement. Such uses may include criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research.
Fair use is a very complicated area of copyright law. Court decisions are all over the place on this issue. People are usually better off getting permission from the copyright owner rather than relying on fair use.
Next time we will discuss things you can do to collect royalties and generally enforce your rights.
This article should be considered a general discussion of copyright law and is not to be taken as personal legal advice to the reader. Please hire an attorney experienced in copyright law to provide the advice you may need for your particular situation.
Julian Ludwig é diretor do Pro Áudio Clube, produtora de áudio Jacarandá, Loc On Demand e Jacarandá Licensing. Trabalhou para empresas como: Guaraná Antartica, TV Gazeta, NET, Chivas Regal, FNAC, Prefeitura de São Paulo, Mukeca Filmes, Agência LEW’LARA TBWA, Agencia MPM, Agência Content House entre outras. Fez trilhas para programas de TV como: Internet-se (Rede TV), Você Bonita (TV Gazeta), Mix Mulher (TV Gazeta), Os Impedidos (TV Gazeta), Estação Pet (TV Gazeta), CQC (TV Band) Vinheta Oficial TV Gazeta, entre outras. Também atuou em vários longas e curtas metragens, incluindo mixagem em 5.1 e serviços de pós-produção.