MUSIC COPYRIGHT BASICS
TO OUR READERS: THE FOLLOWING IS OFFERED BY PERMISSION FROM THE TELEVISION MUSIC LICENSE COMMITTEE www.televisionmusic.com . IT IS NOT INTENDED AS A LEGAL TREATISE OR TO CONVENY LEGAL ADVICE. IT IS INTENDED ONLY TO PROVIDE A BASIC UNDERSTANDING OF MUSIC COPYRIGHTS. YOU SHOULD CONSULT A LEGAL EXPERT IF YOU ARE INTERESTED IN SECURING COPYRIGHT PROTECTION FOR A PARTICULAR WORK, OR IN OBTAINING A LICENSE TO USE COPYRIGHTED MATERIAL.
The basic purpose of copyright law is to promote creative expression. The law encourages such creativity by allowing the “authors” of literary, musical, and other forms of expression to control, for a period of years, the use of their works. The theory of copyright is that, by ensuring that authors will be fairly compensated if they share their creativity, the public will be served by the creation of the widest range of expressive material. It is important to note that copyrights do not protect ideas, only the embodiments of those ideas in a “tangible” form of expression, such as in writing or computer code. It is also necessary that the work involved possesses sufficient creativity to warrant copyright protection. While this is not a high standard, copyright law does not, for example, protect song titles (as opposed to song lyrics or the music itself), presumably because of the titles’ limited creative content.
Copyright law in general requires the permission of these copyright owners to make certain uses of copyrighted material. Without such permission, the copying, public distribution, public performance, public display, or the creation of so-called “derivative” works is forbidden and can subject the violator to monetary and other penalties. The most common means of securing permission is through a license covering specified uses for a specified period of time. The protection afforded creators of music- composers, lyricists, and their music publishers- and to producers of sound recordings is an aspect of copyright law that is important to broadcasters. We discuss below some of the basic copyright concepts that are important in dealing with these types of works. What follows is not intended as a comprehensive analysis of music and copyright law; instead, it is designed to provide a practical look at what can be a very complex and misunderstood area of the law.
COPYRIGHTS IN MUSICAL WORKS
The public uses musical compositions in a variety of ways. These different uses implicate different copyright rights:
1.) Publication and copying of the work in sheet music, used by musicians to play the composition, triggers the copyright owner’s distribution and reproduction rights. The publication of sheet music is comparable to the publication of other written materials and is subject to the same basic copyright rules.
2.) The copyright law also entitles the owners of musical compositions to be compensated when their works are publicly performed as that term continues to be defined by law and the courts. Such performances taking the form of broadcasts constitute what are known as “small” or non-dramatic performances, to be distinguished from performances of musical compositions in a live theatrical or operatic presentation, which are known as “grand” or dramatic performances.
3) The copyright law recognizes two distinct recording rights when a musical work is incorporated into either an audio or an audiovisual format. Recording a musical composition on a record, audiotape, or CD for distribution to the public represents a form of distribution and reproduction known as the mechanical right. Once a song has been recorded, this mechanical right becomes a “compulsory” copyright, the maximum fee for which is determined by the government. Recording a musical composition as part of a video recording in the form of a movie, television show- or music video recording entails a form of reproduction known as the synchronization right, i.e., the right to synchronize music to video. This right is separate from a “performance” right and clearances of both are generally required for the production and broadcast of pre-recorded television programming.
Performance rights are generally acquired by broadcasters under their licenses with ASCAP, BMI and SESAC, while synchronization rights are generally acquired by program producers in direct negotiations with the composer or music publisher (or with the music publisher’s agent, often The Harry Fox Agency).
4) The digital transmission and/or downloading of a musical composition involves one or more of the distribution, reproduction and public performance rights.
5) Different arrangements of a musical composition can call for separate licenses as “derivative” works. Getting permission to use a song, therefore, does not automatically convey permission to vary the music or lyrics, for which additional consent may be required.
COPYRIGHTS IN SOUND RECORDINGS
The owners of sound recordings (such as records and CDs) containing artists’ performances of various musical works hold separate copyrights. The principal rights are:
1) The right to make copies of the sound recording, either in its entirety or in the form of individual tracks-the so-called Master Use Right.
2) The right to perform the sound recording by means of digital audio transmission, which requires the consent of the copyright owner to “stream” over the Internet tracks from sound recordings. Note that there is no corresponding public performance right granted to the owner of a sound recording when its work is broadcast over the air or performed other than as part of a digital audio transmission.
LIMITATIONS ON THE RIGHTS OF COPYRIGHT OWNERS
As is by now obvious, the copyright law provides a given copyright owner a series or “bundle” of discrete rights which that owner in general can exploit as desired. There are, however, important limitations.
First, the copyright law places certain limits on the control, which can be exercised by the copyright owner over the uses that can be made of copyrighted works. If, for example, the period of exclusivity provided by the law has expired, then the work has entered the “public domain” and is freely available to the public for use. To be sure, the duration of copyright is extensive. For works recently created, it extends for the life of the author plus 70 years. The failure of a work to provide copyright “notice,” that is, to contain on its face a claim of copyright protection, is not a reliable basis for concluding that a work is in the public domain. Unfortunately, there is no government-compiled list or other authoritative source that identifies public domain music.
Second, certain uses of copyrighted material constitute “fair uses.” These are uses that are viewed as either so inconsequential or so important in terms of news or educational value that the use is legally privileged even without the copyright holder’s consent. Determinations as to fair use are case-by-case. Reliance on fair use as the basis for not seeking permission for use is not recommended without advice of legal counsel.
Third is the concept of a so-called “ephemeral license,” which permits a radio station (among others) to make a single copy of a musical composition or sound recording and use it “within its local service area” for not more than a six-month period (unless preserved after that only for archival purposes). If the conditions of the ephemeral license are met, no payment for the copies involved are required, provided that all necessary performance licenses have been secured.
THE ROLE OF THE NRB MUSIC LICENSE COMMITTEE
The American Society of Composers, Authors and Publishers (ASCAP), Broadcast Music, Inc. (BMI) and SESAC each represent the interests of composers and music publishers in the licensing of “small” (or non-dramatic) performing rights. The NRB Music License Committee has, for more than 25 years, represented the interests of local radio broadcasters in dealing with these three licensing organizations. The Committee is responsible for negotiating and/or coordinating litigation involved in establishing the fees payable by local radio stations for public performances of music in their programming.
Historically, local radio stations paid for music performing rights under “blanket” license arrangements with the performing rights organizations (“PROs”) ASCAP, BMI and SESAC. The blanket license allows a station to use any of the songs included in the repertory of a given PRO for a single fee. This gives a station maximum flexibility in deciding what music to use as long as it has signed a blanket license with all three of these PROs. Among them, the three PROs represent virtually all copyrighted music compositions in the United Stations.
The blanket licenses that NRBMLC negotiated with ASCAP and BMI are priced as a percentage of the station’s revenue, with some adjustments for certain expenses. SESAC’s blanket license rate is based on a station’s market size and one-minute rate card.
These blanket licenses are favored by the PROs because they are easy to administer, provide a predictable stream of revenue and afford maximum flexibility in distributing royalties to composers and publishers. The PROs sample music played on radio and then distribute the royalties received in accordance with their own formulas.
PER PROGRAM LICENSE
A “per program” license is another form of a blanket license for radio stations. As of now, it is available from ASCAP and BMI, but not SESAC. Under this license form, a station is still entitled to use any music it wants from the ASCAP or BMI repertory, but the station pays a fee only for each “program period” that includes music from that repertory. A per program license is designed for “mixed format” music/talk stations, and allows a station to pay in more direct proportion to its percentage of overall music usage.
Under these per program licenses, stations pay a “base fee”, calculated as a percentage of revenue, as well as a “feature fee.” The base fee covers all incidental music — themes, commercial jingles, bumpers, intros, etc. – while the feature fee covers complete songs. If a program period includes one song in the ASCAP repertory, it would be subject to the full fee payable for the program period. If a program period includes both ASCAP and BMI feature music, a station pays a full per program fee to both.
There are tradeoffs. Under the per program license, stations have greater recordkeeping and reporting requirements, since they are responsible for tracking and providing music use samples.
The per program licenses negotiated by NRBMLC with ASCAP and BMI were achieved only after years of effort on the Committee’s and industry’s part. A considerable portion of this effort was invested in a full ASCAP rate court trial, the NRBMLC being the first (and only) radio committee to have successfully done so.
As mentioned, SESAC does not offer a per program option; however, NRBMLC stations who show they are per program-licensed by ASCAP and BMI are eligible to pay a discounted SESAC blanket license fee.