Basic Copyright Interest in a Musical Composition May 12, 2014 by Iverson Matthew Jackson, Esq. The weekend of May 2, 2014 kicked off the Urban Networks ‘Back to Basics: The Urban Music & Entertainment Summit 2014 in San Diego, California. Because of their theme and that one of my good friends, Kevin Black Collins, attended as a panelist, I want to touch on one of the basics that you, as a musical artist, should understand when you create great music. I also want to touch on this subject because it was a popular topic at the DJs United Conference held in St. Louis, Missouri in April 2014. Each person that makes a creative contribution to a musical composition automatically has a copyright interest in the music. Unless it is specified differently in some agreement, each artist/musician has an equal share in the whole composition. That means if 2 artists collaborate on a song the split is 50/50, and if there are 4 artists the split is 25% each, and so on. If artists are knowledgeable about those facts and are okay with it, then that can make for a great business relationship. However, problems arise when artists dont understand these interests and assume that because they offered more creativity, work, credibility or fame to a project that they deserve a greater share of the whole, while the other artists who helped create the musical composition have a different understanding. As an illustration, here are 3 examples that come up often when artists collaborate and issues arise about who gets paid what: 1. Composer makes a sound recording of music and offers it for sale to Songwriter. Songwriter purchases the music, writes lyrics to it and offers it to Artist to perform. Artist agrees to perform the song and makes a sound recording of the final musical composition, i.e. the song, in a recording studio. Lets say by chance the song is a hit and it becomes commercially successful. Out of those 3 individuals, who is entitled to what? Based on copyright law, all 3, Composer, Songwriter and Artist, have equal 1/3 copyright interests in the song. Although Songwriter paid Composer for the beat, without an agreement stating otherwise, Composer maintains a copyright interest in the musical composition because of Composers original, creative contribution. Songwriters creative contribution is in writing the lyrics to the melody. Artist adds yet another layer of creative contribution in performing and interpreting the lyrics to the melody of the music by inflections of the Artists voice and tone in tune with the meaning of the lyrics and melody. Although the song may become known as a song by Artist, it is really a song by all 3 in the eyes of copyright. 2. Composer makes a sound recording of music and writes lyrics to it. Composer pays Artist to perform the song and makes a sound recording of the final musical composition in a recording studio. The song is then placed, or synced, in a successful, commercial movie. Based on example 1 above, you already know that Composer and Artist own 50/50 copyright interests in the musical composition. It does not matter that Composer paid Artist for the performance. Nor does it matter that Composer made the beat and wrote the lyrics, and Artist just performed the song. It may seem unfair that Composer seemingly did most of the work and paid Artist, but Artists creative contribution to the song is entitled to the same copyright interest as Composer. Again, without a contract stating otherwise or Artist being a direct employee of Composer, their interests remain the same and they share the copyright equally. 3. A band called The Jays, consisting of Jim, John, Josh and Joanna, make and record a hit song together. Jim is the lead singer and leader of the band that brought the band together. John is the drummer, composer and writes all of the lyrics for the band. Josh plays the bass guitar and books shows for the band. Joanna is Jims younger sister and plays the guitar. Josh happens to get a popular nightclub downtown to book the band for $10,000.00 to perform their hit song. How much does each member receive? Based on the 2 previous examples, you know that each member of the band owns equal 25% copyright interests in the hit song. So, each member should be paid $2,500. However, if the intent was to pay each member based upon that members contribution to the band, then that should be explicitly written in an agreement so there is no misunderstandings later. It is also better to get this discussion and agreement out of the way earlier rather than later because no one wants to hear that theyre entitled to only $200 out of $10,000 after the money is made. If you find yourself in one of these types of predicaments, then you should get the help of a knowledgeable entertainment attorney that sort it out for you and provide counsel and guidance to your music business. Do not trust that just because you paid someone to do a particular job with regard to your musical composition that they do not have a viable copyright interest, even if you meant to exclude them from owning such an interest by way of a payment. If it is not in a written agreement, then chances are your incorrect understanding of the law can and will come back to haunt you later. A creative contribution is a copyrightable asset when it is original, as opposed to copied, and possesses at least some minimal degree of creativity. Feist Publ’ns,Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 345. [T]he requisite level of creativity is extremely low; even a slight amount will suffice. The vast majority of works make the grade quite easily, as they possess some creative spark, no matter how crude, humble or obvious it might be. Id., § 1.08[C][1]. Id. Musical composition means [o]riginal music, including any accompanying lyrics; also, original arrangements or other derivative versions of earlier musical compositions to which new copyrightable authorship has been added. Music is generally defined as a succession of pitches or rhythms, or both, usually in some definite pattern. (See, copyright.gov/prereg/music.html, last visited May 2, 2014.) A copyright interest is a form of protection provided by the laws of the United States (title 17, U. S. Code) to the authors of original works of authorship, including literary, dramatic, musical, artistic, and certain other intellectual works. (See, copyright.gov/circs/circ01.pdf, last visited May 2, 2014.) Section 106 of the 1976 Copyright Act generally gives the owner of copyright the exclusive right to do and to authorize others to do the following: reproduce the work in copies or phonorecords; prepare derivative works based upon the work; distribute copies or phonorecords of the work to the public by sale or other transfer of ownership, or by rental, lease, or lending; perform the work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works; display the work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work; and perform the work publicly (in the case of sound recordings*) by means of a digital audio transmission. (Id.) A copyright is valid for the lifetime of the copyright owner, plus 70 years, OR for an anonymous work, a pseudonymous work, or a work made for hire, the copyright endures for a term of 95 years from the year of its first publication or a term of 120 years from the year of its creation, whichever expires first. For works first published prior to January 1, 1978, the term will vary depending on several factors. See chapter 3 of the Copyright Act (title 17 of the United States Code) to determine the length of copyright protection for a particular work. (See, copyright.gov/help/faq/faq-duration.html, last visited May 2, 2014.)
Posted on: Mon, 12 May 2014 16:47:38 +0000
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