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Friday, March 25, 2016

The THUMP Guide to Music Copyright


Written by Gigen Mammoser — Copyright infringement is making a lot of headlines these days: companies are getting sued and artists aren't getting paid. Streaming services from Spotify to SoundCloud want to make money by giving their audience access to music online, meanwhile artists and producers are fighting for a fair share of the profits those companies are making. As the Internet continues to transform the music industry from the inside out, it's more important than ever that you have a basic understanding of how intellectual property functions.

Whether you are sampling an old funk record, getting inspired by Daft Punk, or just trying to navigate the license agreement of a streaming service or sample pack, issues with copyright will be there every step of the way. In both the United States and Canada, the government has official websites to inform citizens about copyright, though those sites can be a hassle to navigate.

Fortunately, THUMP has got you covered. With the help of several lawyers in the United States and Canada—including Jesse E. Morris, a Los Angeles-based music lawyer at Morris Music Law; Peter Henein & Stephanie Voudouris, intellectual property lawyers at Cassels Brock in Toronto; and Paul Sanderson, an entertainment lawyer at Sanderson Law, also in Toronto—we've put together this easy-to-read guide to music copyright.

Whatever problem you are dealing with, we hope that this article will demystify some of the legal mumbo-jumbo (while asking you to remember that this article is strictly for informational purposes, and doesn't constitute actual legal advice). If you feel that need to pursue legal action, get on the phone with a lawyer—we're just music writers!


What does "copyright" mean, anyway?

In the arts (music, film, publishing, theatre, etc.), copyright is the exclusive right to produce, reproduce, publish, or perform an original work—a song or a book, for example. In music, copyright is broken down into two main categories: musical works (the written composition of a song, ie. the sheet music, and the lyrics) and the sound recording.

For example, Bob Dylan wrote the song "All Along The Watchtower"; then, Jimi Hendrix recorded his own version of it. On Jimi's sound recording (Hendrix owns the copyright to the recording), he's performing Dylan's musical composition (Dylan still owns the copyright to the sheet music).


Is there anything that can't be copyrighted in music?

In all cases of music copyright, the song/melody/lyrics/composition have to exist in a "fixed medium"—that means written down, recorded, even carved into stone. They can't just exist in your head.

There are plenty of things music copyright can protect, but not everything. If your music is not fixed in a tangible medium (recorded, written down, etc.), it's not protected. As a live musician, an improvised solo would not be "fixed" because it only exists in that one particular performance. But, if someone records that solo—bingo! That's protected.

Copyright also doesn't protect ideas or themes in music. You can't copyright sad-themed music, but you can protect your song lyrics about the time your wife left you for your mechanic.

Utilizing a commonly found chord progression or a recognized scale, like G Major, are further examples of things that can't be copyrighted.


Is sampling illegal?

Sampling is the act of taking pieces of pre-existing sound recordings—from music, film, video games, YouTube, literally anything—and reusing them.

It can be the pinnacle of creativity by utilizing old sounds in exciting new ways, or it can be cheap, derivative, and entirely uncreative.

From a legal perspective, sampling is almost always illegal without permission from whoever owns the rights to the sample. The musical composition copyright in the sample is often owned by a publisher and the sound recording copyright is often owned by a record label.


How do I use samples without getting sued?

If you want to use samples of any kind, there is no quick fix: you must obtain written permission from the copyright owners—this is called music licensing. The one obvious exception is if the sampled material (both the composition and the sound recording) belongs to the public domain, which we'll get to shortly.

There are organizations in Canada—such as the Canadian Musical Rights Reproduction Agency (CMRRA) or Society of Composers, Authors and Music Publishers of Canada (SOCAN)—that you can contact with questions about how to license music.

In the US, publisher information is generally available by searching the repertoires of American Society of Composers, Authors, and Publishers (ASCAP); The Society of European Stage Authors and Composers (SESAC); or Broadcast Music Inc. (BMI).


What if I release a free mixtape or other "not for profit" album—can I use samples without permission?

Again, you need to clear all your samples from relevant rights-holders before releasing a piece of music. The copyrighted material cannot be reproduced without a license—even if it's being given away for free.

That said, in cases of copyright infringement, the fact that the album is not being sold commercially is likely to affect the court's final judgement and assessment of damages.


What does "public domain" mean?

The public domain refers to works that are not owned by an individual author. Works that exist in the public domain belongs to everyone!

Lots of classical and folk music resides in the public domain. However, you have to be careful: recordings may not. For example, the composition of Mozart's "Requiem Mass" resides in the public domain, but if an orchestra records a version of it—that recording could be copyright-protected.

As a producer, you can use riffs or chord progressions from Mozart, or whoever your favourite classical composer is, in your own music. But, it would be copyright infringement for you to take someone else's recording and use it (like sampling an orchestra's recording) without permission.


How do I know if something is in the public domain or not?

First, you need to know if the creator is still alive. If they are, well, tough luck. Musical works only pass into the public domain after their author passes on to the next plane.

As a general rule for music in Canada, copyright protection lasts for the life of the author plus 50 years from the last day in the calendar year when they died. In the US, copyright generally lasts for the life of the last surviving author, plus 70 years.

An easy-to-remember rule is that all musical works published in the US before January 1, 1923, are in the public domain. For other works, it gets a lot more complicated depending on the date; consulting with a lawyer or knowledgeable professional is recommended.


What is "Fair Use," or "Fair Dealing"?

Fair Use (in the USA) or Fair Dealing (in Canada) are exemptions set out under the Copyright Act that protect uses of works from being considered copyright infringement.

The Copyright Act allows for some leeway when a work is used for certain purposes. Criticism, review, news, reporting, research, private study, education, and parody or satire all fall within this category. YouTube stars would not exist without Fair Use. The entire phenomenon of a host talking to a camera, while video clips play behind them, is based on Fair Use practices. Did you ever wonder how movie and video game critics get away with showing portions of the film/game in their reviews? It's because of Fair Use.

To determine Fair Use/Dealing, judges typically look at four main elements including: (1) the character of the use, including whether it is commercial or non-profit; (2) the nature of the copyrighted work; (3) how much of the copyrighted work is used; (4) how the use affects the potential market or value of the copyrighted work.


How do I copyright something I've created?

You don't have to do anything! In both the United States and Canada, copyright is granted automatically upon creating an original work. If you draw something, write it down, record it, or whatever—as long as it's an original work—you own the copyright. However, that paperwork definitely comes in handy if you have to build a case in court. In the United States, you can't claim attorney's fees or statutory damages in a lawsuit unless your copyright is registered.

In the United States, you can formally register a copyright with the US Copyright Office. Your work will then exist within the records of the Library of Congress. In Canada, you can register a copyright through the Canadian Intellectual Property Office (CIPO).


What rights do I have as a copyright owner?

Copyright entitles you to a whole bunch of cool stuff.

Specifically, you have the rights to 1) reproduce your work, be it by making CDs, MP3s, cassette tapes, or whatever your medium of choice is; 2) make derivative or adaptive works based on your work, such as remixes or foreign-language versions of your songs; and 3) distribute your work to the public—for example, by selling your recordings and underlying songs on iTunes.


What if a song is co-written by a group?

All the authors of a work are co-owners. So, ideally, the work's creators will agree to how the work will be licensed, and put that in writing. A written agreement would indicate what percentage of ownership each co-author is entitled to.


I want to put my music on SoundCloud and other streaming services. What do I need to be aware of before doing this?

Online services like SoundCloud, MixCloud, and YouTube are all great resources for burgeoning artists trying to get their music out. But, there are a few things that are important to know before you upload.

If you are the sole owner, post your music online as you see fit. If the music is co-authored, then you should get permission from your co-authors. Anything you post that contains samples will require permission from the relevant rights-holders. Many websites have software to help detect copyright infringement, and if you are caught using unlicensed material, at the very least, your music will be taken down from the website. Worse, you could also be liable for copyright infringement in court, if the rights-holder chooses to pursue you.


I think someone infringed my copyright—what should I do?

Many popular online sites, such as SoundCloud and Youtube, will try to assist users in circumstances of copyright infringement. You can find instructions for how to pursue this issue on SoundCloud and YouTube.

Alternately, you can try to contact the person directly to request that they take down the infringing material. The next course of action typically involves sending a cease-and-desist letter. If the letter doesn't stop them, you should seek legal counsel to pursue the issue in court.

If you don't settle the parties do not settle out of court, the case will go to trial. After the trial, the loser of the case may appeal the decision.


What were the legal implications of the lawsuit against Robin Thicke and Pharrell Williams by Marvin Gaye's family?

The "Blurred Lines" case was certainly an important one in terms of music copyright law. The problem that many people had with the verdict against Thicke and Williams was that it seemed they were being punished for making a song that was inspired by Gaye, and sounded similar, but was compositionally very different.

One of the major aspects of that case was determining the difference between "inspiration" (which is great) and "appropriation" (which will probably get you hit with a copyright infringement lawsuit).

When you're writing songs, inspiration can come from almost anywhere—a loved one, a dog, or a car—but, it can also come from other musicians. But inspiration crosses into appropriation when you create something with little or no originality. Taking someone else's melody and singing your own words over it would be appropriation and, potentially, copyright infringement, as would taking someone else's lyrics and putting them in your own song.

Thicke and Williams claimed they were inspired by Marvin Gaye, but the court's guilty verdict indicates that their so-called inspiration may have hewn to close to the source material and became appropriation.

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