Tuesday, May 20, 2008

A Short Music Rights Primer

I'm involved in a local compilation of electronic music, by way of being selected as a contributor. Along the way certain questions have come up about music law, so I thought I'd explain the facts as I know them, with the usual proviso that I am not a lawyer and have never played one on TV, etc., etc. This article will be from the perspective of you, a composer and musician, releasing your first song on a brand new CD compilation.

There are several distinct issues: copyright, performing rights, mechanical rights, cover versions and sampling. I'll explain these as simply as possible -- full details by following the links.

Artist Rights

Every composer retains the copyright to a song they have composed, in the same way that writers have rights to their books and photographers have rights to their photographs. This must be noted by putting a "c" in a circle along with the year of composition and the composer(s) name. For example "© 2008 Your Name". This should always appear with your song. Note that the composer is not always the same as the performer. The performer has no rights to the song.

The copyright of the entire CD is owned by the label or publisher. It is indicated by a p in a circle, together with the year and name of the holder of the copyright of the sound recording. The "p" basically means that the record was "pressed" or "produced" by that party.

While it is possible to sign away some or all of your copyright, there is never a good reason to do this. If you are in the situation of signing a contract with a record label or distributor, you had better have a specialist music lawyer look over the lingo to be sure this is not happening.


Performing And Mechanical Rights

It is up to you to register with an appropriate organisation to protect your performing and mechanical rights. In Ireland this would be IMRO -- others are listed below. IMRO will collect money on your behalf when people perform your song ("performing rights") or when a recording of your song is played, either in a club or on the radio or even on those new-fangled jukebox thingies ("mechanical rights"). In reality, this collection of money is done on a statistical basis, so unless you get an awful lot of airplay indeed you will never see a penny.


Cover Versions

There is nothing to stop you performing a cover version of some other composer's song. You do not have to ask their permission. But you do need to serve official notice to the copyright holder (by registered mail) within 30 days of releasing the music. Then, you are obliged to pay them performing rights royalties every month, together with a monthly statement of account. Furthermore you must send them a detailed annual statement, certified by an accountant. That's a lot of bookkeeping, which is why accountants and lawyers love the music industry.

How much do you have to pay? The current rate is 9.1 cents (US) for the song or 1.75 cents per minute or fraction thereof, whichever is greater. This is for each copy that is manufactured for distribution (regardless of how many get sold). So, if 1000 copies of the CD are being made, a 5 minute tune costs $91 but a ten-minute opus will set you back $175.

These are just the standing rates. If you contact the copyright holder ahead of time you may be able to negotiate something easier to handle, like say an annual payment with statement at a flat rate of $70. That's less paperwork.

How do you figure out who owns the song? To identify the copyright owner try one of the international rights groups. In the USA there's BMI, ASCAP, SESAC, Harry Fox Agency or, if all else fails, the U.S. Copyright Office. Around the world there are many others, compiled here.

Please be aware that you cannot substantially change the music or lyrics of a song you are covering, as that produces a derivative work. I won't go into all the ins and outs of parodies and suchlike here... it gets complicated.


Sampling

Everyone seems to have a different idea about sampling, but the law is clear. If you use another song recording as part of your own you must "clear" the sample. Even if the song is unrecognisable. Even if the sample is one micron long and weighs more than Saturn. Always.

Buying the rights to clear the sample can cost just about anything depending on how much you use and for what purpose, how popular the artist is, and so on. In the UK and Ireland the Mechanical Copyright Protection Society (MCPS) can aid in sample clearance.

To get around this you can buy royalty free music, such as sample CDs, that already have the rights cleared. Or, you can join the ever-growing worldwide community of artists who use one of the Creative Commons licenses in order to legally allow sampling and re-use.


Final Remarks

Copyright covers only the actual song and its lyrics, not the name or the idea. Any number of people can write a song called "Yesterday" without asking a certain Beatle if it's ok. Likewise any number of songwriters have written laments to lost love. If you want to protect a name or sign you need a Trademark. If you want to protect an idea you need a Patent. Neither of these have much application to composition.

Don't think you can weasel out of the law. Just ask Josef K (the character, not the Scottish group). Even if you don't plan on charging for your song, all the above protocols must be obeyed. Even if it's not clearly marked who owns the copyright on a song, it's up to you to find out. Even if you are recording the song for a demo and not public release, you still need the rights cleared.

Basically, there is no way around the above restrictions and protections. No excuse you make is going to satisfy a judge. So don't even go there.

If you need further "inspiration", read The Trial.

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