Posts Tagged ‘music’

Music Copyright 101

Wednesday, April 27th, 2011

[Excerpt from Chapter 13 of Copyright Companion for Writers © 2007 Tonya M. Evans. This excerpt may be "shared socially" and republished provided this post is copied in its entirety and copyright information is included for attribution]

Music and Copyright

In previous posts, I have focused mostly on literary creations in the publishing industry (books, articles, magazines, and so forth). But copyright in a song (whether lyrics, music, or both) is created in the same way as in any other literary or artistic work. And music copyright is made up of the same bundle of rights, which includes the right to publish.

What Music Publishing Is All About

Unless you are already a well-known songwriter, it will be a challenge to commercially exploit your music without the help of a music publisher, one who licenses your songs to others for flat fees or royalties so that your songs get recorded or played or synchronized in TV and film and so forth. Performance royalties are all right, but music publishing, if properly managed, is really where the money is in the music industry.

Music publishing can be big business. It is also confusing to many songwriters who tend to focus on the creative aspects of writing rather than the business and legal sides. Essentially, there are two potential income streams involved in songwriting: first is the songwriter’s share as the creator and copyright owner, and second is the publisher’s share for the person or company that actually enables the song to be released to the public (i.e., to be published). This has been explained in the past as the two “pies,” where the total percentage of income is 200 percent (each of the pies equaling 100 percent). This explanation is somewhat outdated and only adds to confusion. Others explain the writer’s share as 50 percent of the revenues and the publisher’s share as the other 50 percent.

Regardless of how you slice it (pun intended), in general, songwriters transfer some percentage (or all) of the copyright to the publisher, and keep the entire songwriter’s share of income and none (or very little) of the publisher’s share. The percentage of copyright transfers affects the way money is split between you and the publisher.

If you do a co-publishing deal in which you (or the publishing company that you form) team up with an established publisher, then you will most likely transfer 50 percent of the copyright to the publisher, keep the entire writer’s share of revenues, and split the publisher’s share of revenues fifty-fifty. Or you may be in a strong negotiating position and opt for an administration deal, in which case you will control copyright and keep all of the songwriter’s share, all (or most) of the publisher’s share, and simply pay to the company an administrative fee for handling the business of exploiting and managing your copyrights.

Click here for more information about copyright

Click here for music publishing sample forms

Article Examining Copyright’s Impact on Music Sampling Reaches IP Top Ten on SSRN

Wednesday, November 17th, 2010

Professor Evans’ forthcoming article about copyright law and it’s impact on music generally, hip hop in particular, is listed among the top ten intellectual property articles downloaded from the prestigious Social Science Research Network (SSRN).

The article examines the deleterious impact of copyright law on music creation. It highlights hip hop music as an example of a genre significantly and negatively impacted by 1) the per se infringement rule applied in some instances to cases involving unauthorized sampling of sound recordings; and 2) traditional (and arguably erroneous) assumptions in copyright law and policy of independent creation and Romantic authorship.

For decades hip hop producers have relied on the innovative use of existing recordings (most of which are protected by copyright), to create completely new works. Specifically, cuttin’ and scratchin’, digital sampling, looping and (most recently) mashing are all methods of creating music and are all integral parts of the hip hop music aesthetic. Collectively these creative processes are the hallmark of the type of innovation and creativity born out of the hip hop music tradition.

Hip hop artists and producers from Chuck D, Queen Latifah, A Tribe Called Quest and M.C. Lyte to The RZA, Missy Elliott, Dangermouse and Jay Z have employed the sampler more as a musical instrument or palette than a tool of expediency or theft. But when done without the permission of the borrowed work’s copyright holder, sampling is at odds with copyright law. Unfortunately, copyright fails to acknowledge the historical role, informal norms and value of borrowing, cumulative creation and citation in music. Additionally, different copyright infringement standards are applied to the two types of music copyright (the musical composition and sound recording).

Click here to read the full abstract and to download the paper.

Sample Pub Industry Forms Added to New Forms eLibrary!

Thursday, November 11th, 2010

Have you ever wondered what “standard” clauses should be in every literary agency or publishing agreement? Do you want to memorialize the rights and responsibilities of your literary project with your co-author or illustrator? Do you want to secure written permission to use a copyrighted song, picture or other protected literary or artistic work in your own?

If the answer to any of these questions is yes, then visit our eLibrary of Sample Forms and download the form that works best for your situation. Remember, these forms are not a substitute for actual legal advice for your matter and they are provided for informational purposes to help you go from writer to Literary Entrepreneur™!

Visit often as forms continue to be added on a weekly basis. All forms also appear in the Appendix and on CD-ROM in Contracts Companion for Writers.

Forms available or coming soon:

  • The Collaboration Agreement
  • The Work-Made-for-Hire Agreement
  • The Agency Agreement
  • The Publishing Agreement
  • Songwriting and Song Publishing Agreements
  • The Licensing Agreement
  • Permission Request
  • Release Form

Evans’s Scholarly paper on Hip Hop & the Law Receives Friendly Nod from TechDirt.com

Tuesday, November 9th, 2010

On Monday, November 8th, TechDirt.com reviewed my law review article titled Sampling, Looping & Mashing Oh My! How Hip Hop Music is Scratching More Than the Surface of Copyright Law in its post “Time To Remix Copyright Law: The Hip Hop Case Study, by TechDirt.com’s Mike Masnik.

In the article, I argue that copyright law is ill suited when applied to music generally, and genres like hip hop in particular simply because of the way music is created. Outfits like TechDirt.com have been arguing the same thing for decades and is a leader in the “it’s just how music is made” camp to reform copyright laws to optimize benefits to all parties involved.

My article will appear in The Fordham Intellectual Property, Media & Entertainment Law Journal’s Spring 2011 issue, the number one ranked entertainment, arts and sports law journal, and the number sixth ranked intellectual property law journal.  IPLJ articles have been read into the Congressional Record, as well as cited in the Court of Appeals for the Second Circuit and in amicus briefs to the U.S. Supreme Court as well as cited recently by the high court itself in the Bilski decision.

Founded in 1997 by Floor64 founder Mike Masnick and then growing into a group blogging effort, the Techdirt blog uses a proven economic framework to analyze and offer insight into news stories about changes in government policy, technology and legal issues that affect companies ability to innovate and grow.