Music Law 101
August 26, 2013 in Doing BusinessAs part of our Legal Service Program, we bring you Music Law 101; a series of articles for The Session, which will outline some basic legal concepts within the music industry that all artists should know. We have tried to keep the language and jargon in easy to follow English, but please remember you can always call us if you require further information or clarification on any of the topics covered in these articles
Music Law 101 - Edition #1 deals with basic definitions utilized within music law; taken from “Music Law and Revenues 2009”, which we reprint with the gracious permission of Bob D’eith, Executive Director of Music BC. We thank Bob for his work in this field and would recommend him members who may be conducting business in British Columbia.
MUSIC LAW 101 Edition #1: basic copyright law
The music industry is founded on various forms of intellectual property. Whether through copyright or trademark, most revenues flow from rights flowing from legislative and common law rights. The Copyright Act of Canada (and related copyright acts around the world) creates two main copyrights that come to play in the music industry. One is the copyright in the composition or musical work and the other is the copyright in the sound recording. The discussion below sets out the nature of these two copyrights and the incomes flowing from each copyright.
Trademarks and trade names are protected under the Trade Mark Act of Canada and the common law of passing off. Personality rights are protected under common law. © 2009 Robert J. D’Eith
WHAT IS COPYRIGHT?
The Canadian Copyright Act provides legal protection to original works of authorship, which includes literary, dramatic, musical and artistic works, compilations of literary works [this would include lyrics (printed without the music), liner notes and other written materials created in support of sound recordings and songs] as well as, performer’s performance, communication signals and sound recordings. The copyright owner of a work has the sole right to produce, reproduce, perform, publish, or alter a work. The copyright holder may authorize someone else to copy their work. Therefore, anyone who wants to use the work in some way may need to get permission first. Copyright law does provide some exceptions to these exclusive rights.
The author of a work has the right to the integrity of the work to stop the work from being changed or used in a way that could diminish the value and/or reputation of the work [ie. use in an adult film or use by a political party] and the right to be associated with the work [writing credit]. Moral rights may not be assigned but may be waived in whole or in part. Moral rights for a work exists for the same term as the copyright in the work.
TYPES OF WORKS PROTECTED BY COPYRIGHT
Copyright applies to all original works. For example:
-Literary works - books, pamphlets, poems and other works consisting of text, tables, computer programs;
-Dramatic works - films, videos, plays, screenplays and scripts [this would include all of an artists film and video footage and audiovisual recordings];
-Musical works - compositions that consist of both words and music or music only (note that lyrics without music fall into the literary • works category) [this is about songwriting and not the sound recording – sound recording is a separate and distinct copyright];
-Artistic works - paintings, drawings, maps, plans, photographs, engravings, sculptures, works of artistic craftsmanship and architectural works [album artwork, band photographs, posters and other artwork created for or by the artist is copyrighted];
-Performer’s performance: performers such as actors, musicians, dancers and singers have copyrights in their performances [this is important for musicians and singers as their performance on a sound recording has its own copyright and must be assigned – even if a third party owns sound recordings, they cannot release a sound recording without an assignment or license of the performer’s rights] [as an extension of this right, the Copyright Act has created a so-called neighbouring right in performance which allows the maker and performers on sound recordings to receive royalties for radio play in the same was as songwriters do];
-Communication signals: broadcasters have copyrights in the communications’ signals that are broadcast;
-Sound recordings: makers of recordings, such as records, cassettes, and compact discs, which are called “sound recordings” in the Copy• right Act, are also protected.
WHAT IS NOT PROTECTED?
Copyright applies only to an idea that has been expressed in some fixed format. [this includes making a chart or recording a song – this does not include writing a song without creating some fixed format to express it] Facts, titles, names and short word combinations, factual information
are not usually protected by copyright. They are part of the public domain. [if an artist is covering a public domain song and arranges the song, then SOCAN and CMRRA will recognize a copyright in the arrangement and allow for part royalties to be paid. This is to recognize the new creation expressed in the arrangement].
Length of Copyright Term
- The term of copyright is measured by the life of the creator plus 50 years [in the case of a co-write, the copyright extends for 50 years from the death of the last remaining co-writer] [for sound recordings, photographs and videos, copyright extends for 50 years from the date of the recording]. Works enter the public domain when the term of copyright has expired.
Copyright protection exists as soon as an original work is created in a fixed form including creating a music chart or recording a song. • This “ automatic” aspect is not uniform in all countries, as many countries require some form of registration for copyright to bee created.
Please note that while copyright is automatic once in a fixed form it is advisable to always put the following copyright notice on all • recordings and printed materials:
(p) 2009 Blue Records Inc. (this is the owner of the copyright in the sound recording)
© 2009 White Publishing Inc. (this is the owner of the copyright in the musical works)
If the artist has not assigned its copyrights to a company, then copyrights are normally owned as follows:
(p) 2009 The Band Name (a band is normally a partnership under the law if it does not do anything to alter this basic relationship – usually the band owns the copyrights in the sound recordings if the band paid for them)
(p) 2009 The Songwriters (the names of the actual songwriters would be placed here – often this is one or two members of a band, or a co-write with a third party producer or songwriter)
Please note that there is also a copyright in your artwork and it is advisable to put a copyright notice on any posters, inserts, CD covers and other printed materials:
© 2009 The Band Name]
The fair dealing provision allows copying for private study, review and criticism. When used for criticism, however, the user is expected • to provide the source of the work (i.e. author, artists and producer of a sound recording, etc.). There is no definition for fair dealing and court rulings are judged on a case-by-case basis.
Exceptions to the Copyright Act
The Copyright Act has an exception for non-profit educational institutions. Instructors at these educational institutions are allowed to make copies and perform works in the classroom, subject to restrictions. They are also permitted to make use of copyrighted works on the premises of an educational institution for educational or training purposes as long as there is no substitute of the work available in the marketplace.
If instructors copy any other type of radio and television broadcasts, they may keep this copy for evaluation purposes for a period of 30 days. If the copy is then used for educational purposes, a royalty must be paid.
Libraries, archives and museums may make a copy of published or unpublished works protected by copyright in order to maintain and manage their collections. This can be done if a copy in an alternate format is not already available in the marketplace.
An author’s work is protected for a term that is generally measured by the life of the author plus fifty years. If the author has been dead • for more than 50 years, the work moves into the public domain. Once the work moves into the public domain you can use them for cultural, educational, personal and social purposes.
Bob D’Eith, Executive Director Music BC Industry Association.
Music BC Charitable Foundation
530 - 425 Carrall Street, Vancouver BC V6B 6E3
(604) 873-1914 p, (604) 873-9686 f.
firstname.lastname@example.org / www.musicbc.org