Licensing a Cover Song (Be Happy… it’s easy) Reply

If you want to cover a song on an album you will need to obtain a MECHANICAL license. The good news is that user-friendly tools are available to help you get the licenses you need. If you are an indie artist, attorney with a hankering to release an album, church group, or other musical group… you can use the online licensing services offered by Limelight (at https://www.songclearance.com/) to obtain mechanical licenses.

A FEW POINTS ABOUT MECHANICAL LICENSES VIA LIMELIGHT:

  • You need a mechanical license before distributing a recording containing a song or composition that you didn’t write.
  • The most common mechanical uses are digital downloads, CD’s and ringtones.
  • You need to secure mechanical licenses even if you are giving your CD’s, downloads and ringtones away for free.
  • Limelight’s Pricing Calculator estimates that the cost to license a song for 100 CD’s is $24.10 and for 100 CD’s + 100 digital downloads is $48.20. (this cost includes the royalty fee and Limelight’s service fee) – check out the calculator at https://www.songclearance.com/clearance/calculator

A FEW OTHER POINTS TO KEEP IN MIND:

  • Good idea to check with Limelight even if you think that you are using a work that is in the Public Domain… because, you want to make sure that you are not using a copyrighted arrangement of a Public Domain work
  • If you wish to license a song or Master recording to use with a film or other visual content (including YouTube videos), the type of license that you need is a SYNCHRONIZATION license. (Contact the publisher directly for a synch license).
  • If you are including a recording of someone else’s music in your album (for example within a track or as an instrumental line) you need a MASTER USE license, need to clear the publishing/composition rights AND secure a mechanical license.

See also, https://www.songclearance.com/faq/; Rights Flow at htsflow.com/what-we-do/mechanical-licensing-and-royalty-services/; Three Myths About Music Sampling at http://wp.me/p10nNq-4U; Copyright Is Valuable – The Happy Birthday Song Earns $2 Million a Year at http://wp.me/p10nNq-cl and @iplegalfreebies and www.kasterlegal.com.

BY: Vanessa Kaster, Esq., LL.M.

vk@kasterlegal.com

 

Here is a link to ask Congress NOT to reduce music royalty rates paid to musicians by Pandora Reply

–> http://www.musicfirstcoalition.org/ <–  Tell Congress: Don’t Slash Music Creators’ Pay

As a follow up to my post yesterday [http://wp.me/p10nNq-p8] it’s easy to reach out to your Congress reps at the link above and speak out against Pandora’s push to slash royalty rates paid to creators.

Musicians push back as Pandora lobbys Congress to reduce royalty rates Reply

Three cheers for musicians defense against Pandora’s Congressional lobbying efforts to reduce royalty rates that it pays to musicians. Currently Pandora pays a fraction of a penny to musicians each time a song is played on its internet radio service. …Pandora wants to make more money (don’t we all)… but taking a bigger cut from musicians is low. In protest of Pandora’s proposal, Rihanna, George Clinton, Billy Joel, Bonnie Raitt, The Doors, Katy Perry, Pink Floyd, Alabama, Sheryl Crow and other artists have written a letter opposing the Pandora-backed legislation that aims to reduce royalty rates.

THE LETTER: A MUSICIAN’S PERSPECTIVE ON PANDORA

We are big fans of Pandora. That’s why we helped give the company a discount on rates for the past decade.

Pandora is now enjoying phenomenal success as a Wall Street company. Skyrocketing growth in revenues and users. We celebrate that. At the same time, the music community is just not beginning to gain its footing in this new digital world.

Pandora’s principal asset is the music.

Why is the company asking Congress once again to step in and gut the royalties that thousands of musicians rely upon? That’s not fair and that’s not how partners work together.

Congress has many pressing issues to consider, but this is not one of them. Let’s work this out as partners and continue to bring fans the great musical experiences they rightly expect.

This letter is running in Billboard Magazine and with any luck has gone viral and is gaining momentum and support. A congressional hearing is scheduled for tomorrow in Washington D.C.

For more information: the proposed legislation – Internet Radio Fairness Act; Battling Rihanna Puts Pandora in Box on Lower Music Royalties at http://www.bloomberg.com/news/2012-11-26/battling-rihanna-puts-pandora-in-box-on-lower-music-royalties.html; From Alabama to Rihanna, Starts Fight Pandora on Royalties at http://www.billboard.com/news/from-alabama-to-rihanna-stars-fight-pandora-1008016162.story#/news/from-alabama-to-rihanna-stars-fight-pandora-1008016162.story; and the letter at http://www.musicfirstcoalition.org/sites/default/files/Artist%20Letter.pdf; @iplegalfreebies and www.kasterlegal.com.

BY: Vanessa Kaster, Esq., LL.M.

vk@kasterlegal.com

 

Recording and posting concert clips: what’s legal… what’s not 6

Just because it is easy to use your phone to record a clip at concert doesn’t give you the right to do very much with the recorded clip. There are multiple sets of legal rights at play in every concert performance which include:

  • Copyright in the music compositions and lyrics (often controlled by the publisher or sometimes the artist)
  • Copyright in the performance (often controlled by the label)
  • Trademarks of the band, club or venue
  • Band’s right of publicity
  • Contractual rights granting you the privilege to attend the performance (often on the ticket stub, or posted signs at the venue, or the terms and conditions of a website)
  • License granted by ASCAP or other rights manager to the club or venue for the performance.

Each of these rights gives the holder a monopoly to do certain things or exclude others from doing certain things. Excluding others (ie you with the recording device) can be taken seriously by all the rights holders. For example, club or venue owners can exclude others from recording on their premises. This means they can confiscate your phone until the end of the performance or ask you to leave if you are caught recording a clip of the concert.

Technically speaking, recording a clip of a concert for your own personal use is probably considered fair use. If you post the recoded clip to a website, chances are that one of the rights holders listed above will contact the website and request that the clip be taken down. If this happens, the clip will come down and you may forfeit your right to access or use the website where you posted the infringing clip.

Rights holders generally try to maintain a balance when it comes to enforcing their rights; since, they don’t want to alienate their fans and patrons. Although, given the history of how aggressively the music industry went after folks who were targeted for illegally downloading music… this could change.

BY: Vanessa Kaster, Esq., LL.M.

vk@kasterlegal.com

See also: Other posts on music copyright at https://iplegalfreebies.wordpress.com/category/c-o-p-y-r-i-g-h-t/copyright-music-copyright/; Music Law 101: Legal Issues Surrounding the Recording and Posting of Concerts, by R. Friedberg; @iplegalfreebies and www.kasterlegal.com.

Digital royalties waiting? Register before October 15, 2012 1

SoundExchange is the organization that collects and distributes digital royalties to musicians and record labels.  Just last month,dollar sign SoundExchange released a list of over 50,000 recording artist and record label names who are owed tens of millions of dollars in unclaimed digital performance royalty payments.  [Registration with SoundExchange is required in order to collect these unpaid and ongoing digital royalties].  The list released by SoundExchange also includes more than $31 million in royalties that are three or more years old.

**AN IMPORTANT NOTE** Any unclaimed royalties that are over three years old may be forfeited (and lost) if the artists and labels who are entitled to the $$$ do not register with SoundExchange by OCTOBER 15, 2012.

If you think that you, or someone you know may have digital royalties waiting to be collected from SoundExchange CHECK with SoundExchange.  You can check this out by searching through the database of unpaid artists and labels  on the SoundExchange website… or you can email SoundExchange at: connect@soundexchange.com.

Just a note about searching the on-line database, try searching by your full name and also by each part of your name individually.  For some quirky reason, I have found that this can change the search results.  For example, on a whim I decided to search for the Native American Artist, Floyd Red Crow Westerman…. and searching “Westerman” didn’t return any results; however, searching for “Red Crow” found: FLOYD RED CROW WESTERMAN.  (I sent an email to the contact on Mr. Westerman’s website… hopefully they will reach out to SoundExchange asap!)

See also: an earlier post  http://www.soundexchange.com/2012/08/15/soundexchange-releases-list-of-recording-artists-and-record-labels-with-unclaimed-digital-performance-royalties/, http://www.soundexchange.com/2012/08/17/royalties-waiting-find-out-in-our-new-database/, http://www.soundexchange.com/performer-owner/does-sx-have-money-for-you; @iplegalfreebies and www.kasterlegal.com.

BY: Vanessa Kaster, Esq., LL.M.

vk@kasterlegal.com

 

Copyright: composing new music intertwined with Schubert fragments Reply

Copyright automatically vests in original music compositions.  Originality is key to copyright and the music composed by Maestro Luciano Berio to complete an unfinished symphony, in D major, by Schubert is a fantastic work that offers an interesting opportunity to take a closer look at copyright, copyrightable works and the public domain.

Franz Peter Schubert (1797-1828) was a prolific composer who composed numerous masterpieces including sketches of a symphony, in D major, that would have been his 10th symphony.  Schubert died before completing the symphony and left behind the sketches of the unfinished piece, including notes on instrumentation, which are in the public domain and free to use, copy, perform and create derivative works of.

Over a century later, the maestro and composer Luciano Berio (1925-2003) undertook the task of completing Schubert’s unfinished symphony.  Berio composed original music that weaves together Schubert’s sketches into a completed work that can be performed and enjoyed by us all.  (Berio referred to his work as “the cement-work”).  Back to our copyright analysis… Berio’s original composition that pieces together Schubert’s sketches is copyrightable because it is an original music composition.  Because Berio’s music is copyrighted, permission is required to use, copy, perform and create derivative work of his work. (…Schubert’s sketches are still fair game).

Berio has been praised for completing Schubert’s composition (titled Rendering) in a style and manner that sounds “Schubertian”.  (Listen: http://www.youtube.com/watch?v=-76EhKzEsPM&feature=related)

See also:  Conductor David Robertson talks about Schubert & Berio’s Rendering: http://www.youtube.com/watch?v=-NfoOAm7Fvoa US copyright registration for a sound recording of Rendering; http://www.bachtrack.com/review-mostly-mozart-festival-2012-malkki-berio-rendering-ohlsson-beethoven; http://composers21.com/compdocs/beriol.htm;  http://www.classicalarchives.com/composer/3308.html#tvf=tracks&tv=about;iplegalfreebies and www.kasterlegal.com.

BY: Vanessa Kaster, Esq., LL.M.

vk@kasterlegal.com

 

Newly Discovered Jazz Archive in a Copyright Tangle Reply

You might have heard that an archive of historic jazz recordings was discovered and donated to the National Jazz Museum in Harlem last year. Accompanying the hundreds of donated discs containing recordings of legendary jazz musicians of the late 30’s and 40’s… is a tangle of legal copyright issues.

THE MUSIC – This newly discovered jazz archive exists due to the technical genius of William Savory who was both a jazz aficionado and a technical wizard. Mr. Savory developed ways to make superior, longer and more durable sound recordings and recorded historic jazz performances during the golden era of American Jazz. Among the treasures in his collection are never released recordings of: Benny Goodman, Billie Holiday, Count Basie, Bobby Hackett, Ella Fitzgerald, Louis Armstrong, Coleman Hawkins and Lester Young.

This historic collection is currently being restored and digitized by the National Jazz Museum and can be heard in eight short clips on the museum’s website and by making an appointment to visit the museum’s listening room. (http://www.jazzmuseuminharlem.org/savory/index.php or by calling 212-348-8300).

THE BIG QUESTION – is whether this historic collection will be made available to the public once digitized.

COPYRIGHT ISSUES ABOUND – Copyright law has changed and morphed over the years and the legal protocol for using, distributing, copying and making these digitized recordings (or any copyright protected work) available… requires identifying the musicians and copyright owners of the recordings and getting their permission to use the works. As you might guess, this is no small task. It can be difficult to identify and locate copyright owners especially since decades have passed since the recordings were made. Most of the musicians are no longer living and the business entities and companies that may hold ownership interests in the works have likely morphed and changed too.  (Note that copyright protection lasts for longer than the life of the owner.  The duration of copyright protection has changed over the years.  Currently, copyright protection lasts for the life of the author + 70 years and if owned by a corporation it lasts for 95 years from publication.)  If an organization wishes to use copyrighted works, but the copyright owner cannot be located… the organization has two choices: 1) not to use the work or 2) to use the work without permission, which is a risky gamble.

HOW BIG OF A GAMBLE IS IT TO USE A COPYRIGHTED WORK WITHOUT PERMISSION? The short answer – Big. Using a copyrighted work without permission can put the user at risk of owing treble damages to the owner for willful infringement AND can prevent any further use of the work via an injunction. The risk of potential copyright liability for using works without permission is generally too high for most museums, filmmakers and libraries to take.

WHAT HAPPENS NOW? Evidently the National Jazz Museum in Harlem is in the process of restoring and digitizing the Savory collection. It will be interesting to see how the museum decides to use the works. Hopefully, tracking down the copyright owners and getting permission to use (and make available for distribution) at least some of the works will be possible. (I would like to hear these recordings!) Alternatively, legislation could change the penalty for using the works by reducing the fee from treble damages to ‘a reasonable licensing fee’ payable to the copyright owner retroactively once they resurface and make a demand for payment. These types of legislative changes to the current Copyright Law have been proposed but have not been adopted. For now, making an appointment to visit the National Jazz Museum in Harlem’s listening room is the way to hear these historic jazz recordings.

See also: http://www.jazzmuseuminharlem.org/; http://jazzmuseuminharlem.org/the-museum/collections/the-savory-collection/; http://www.copyright.gov/; Orphaned Treasures: A Trove of Historic Jazz Recordings has Found a Home in Harlem, But You Can’t Hear Them, by S. SeidenbergFor more information on works in the Public Domain, see http://wp.me/p10nNq-ft and http://wp.me/p10nNq-gn; @iplegalfreebies and www.kasterlegal.com.

BY: Vanessa Kaster, Esq., LL.M.

vk@kasterlegal.com

 

Music Royalties will start being paid for plays on YouTube Reply

Did you know that 48 hours of content is uploaded to YouTube every MINUTE?!? It’s hard to even conceive of… but it’s true and without question… heaps of the uploaded content contains music that could and should be earning royalties for plays on YouTube.

In an effort to begin to manage content on YouTube and start paying copyright holders royalties whenever music is included in a video that is played on YouTube, Google (the owner of YouTube) has purchased RightsFlow (a start-up that processes music royalties to help musicians, songwriters and music labels be compensated for their work).

RightsFlow has a music database of over 30 million songs and already processes licenses and royalty payments for thousands of publishers. Integrating the RightsFlow database and technology into YouTube’s content management systems promises to start paying $$ to musicians and music rights holders who have been uncompensated for the use of their music on the site. (Search for any popular band or song on YouTube and you will find an extensive mix of results that include recordings of copyrighted music).

Managing and protecting copyrighted content is an ongoing concern for YouTube. Currently, a copyright holder can request YouTube to remove a video posted to the site that includes copyrighted content that is being used without authorization. However, won’t it be even better… to be paid for the use of your music!

I heard one of YouTube’s Music Managers speak earlier this year and she mentioned a point that is KEY to getting paid royalty payments:

  • People (this means YOU)/musicians/record companies… who want their content monetized will have to say so. (ie.. you have to be PROACTIVE to receive royalties)
  • See the YouTube Licensing offer: http://www.youtubelicenseoffer.com/

Stay tuned into this issue…

See also: http://rightsflow.com/; http://rightsflow.com/2012/01/youtube-and-rightsflow-opt-in-reminder/; @iplegalfreebies and www.kasterlegal.com.

BY: Vanessa Kaster, Esq., LL.M.

vk@kasterlegal.com

What I would tell Jaki Byard (about copyright law) 1

The late, great Jaki Byard was a musical genius and like ALL artists Jaki created TONS of intellectual property. Undoubtedly he created more original, copyrightable works than he even knew. Like so many artists… when your art just flows… and your groove is strong… it’s easy to overlook ways to protect and monetize your work. (I studied jazz piano with Jaki a few years before I went to law school and became an intellectual property attorney).

What advice would I give Jaki today? I would insist that Jaki copyright his work. Jaki created exquisite handwritten piano exercises and warm-ups …complete with elaborate pencil-drawing covers. They were remarkable in all respects. And if Jaki were still alive today, I would take the F train out to his home in Queens and insist that he copyright and publish these. (Yes, Jaki also had volumes of recordings and other music… I suspect a large portion of these works are copyrighted and still paying royalties).

Is sheet music of warm-up exercises copyrightable? Yes! If they are original, they are copyrightable.

Will people buy them… is another question… however, it only costs $35 to register your work with the US Copyright Office. This is a nominal investment. I would have paid it on Jaki’s behalf in a heartbeat.

(Jaki Byard was a jazz legend and a brilliant teacher. He passed away February 11, 1999 and lives on in his music).

BY: Vanessa Kaster, Esq., LL.M.

vk@kasterlegal.com

 

For more info on how to register your work with the US Copyright Office —> http://t.co/ynaHCbX and http://www.copyright.gov and a tribute to Jaki —> http://www.villagevoice.com/1999-03-09/music/jaki-byard-1922-1999/; @iplegalfreebies and www.kasterlegal.com.

Works in the Public Domain are FREE to use Reply

Music and other published works that are in the Public Domain are free to use; since, they are not under copyright protection and therefore do not require any permissions from the author (or former copyright owner) to be used. Works that are in the public domain are free for the taking, sampling, using, copying, reproducing, recording and distributing.

Typically, works in the Public Domain are very old works. For example, ancient published texts like the “Bhagavad Gita” (a pre-Christian, Sanskrit text) are in the public domain…. as well as “newer-old-works” like the Shaker song “Simple Gifts” (music and lyrics written in the United States in the mid 1800’s). The original text, music and lyrics of the works are in the public domain. However, newer translations or compositions based on the original works… as well as sound recordings and arrangement elements of these newer versions are likely covered by copyright protection…. and NOT in the public domain.

What works are in the public domain? Any work or musical score that was published in the United States before 1923 is in the public domain, due to expiration of copyright. Newer works can also be dedicated to the public domain and if a work failed to meet the requirements for copyright protection it will also be in the public domain. Generally, a case by case analysis should to be done on works published in 1923 or later to determine if they are in the public domain because, it’s not always obvious. [Would you have guessed that the Happy Birthday Song is still covered by copyright protection… and not in the public domain?]

Keep in mind that copyright duration and the timeline for works entering the public domain vary country by country.

BY: Vanessa Kaster, Esq., LL.M.

vk@kasterlegal.com

See also: http://www.copyright.gov, http://copyright.cornell.edu/resources/publicdomain.cfm, http://creativecommons.org/publicdomain/; @iplegalfreebies and www.kasterlegal.com.