Copyright Law: Using quotes from someone else (including Cajun keychain sayings) in your song, blog, book or website 2

Did you know that it’s possible to buy a “Cajun in your pocket” keychain? …that plays spoken Cajun phrases? GOOD NEWS – you can buy the keychain and use the sayings without violating copyright! cajun pocketEven though the toy manufacturers have copyrights that include the sayings on the keychain… there is no copyright violation for using the sayings in your own song, book, blog or website because, the phrases are not original.

A federal court in Louisiana held that the phrases at issue (see below) were common Cajun phrases and therefore, when the rap artist Mystikal included the exact word arrangements in his hit “Shake Ya As*” he did not infringe the toy maker’s copyright. (One of the necessary elements of a copyright infringement claim is that the parts of a copyrighted work that are copied without authorization must be original.)

  • “We gon pass a good time, yeah, cher”
  • “You gotta suck da head on dem der crawfish”

Another aspect of evaluating whether copyright protected works were copied without authorization is proof of access to the copyrighted work and similarity of the works. Interestingly in this case, it was proven that Mystikal’s nephew had a “Cajun in your pocket” toy… which was how the artist had access to the copyrighted work prior to the creation of his song. (By the way, it was estimated that the rap song had sold over six million units worldwide by the fall of 2000 and had also appeared in several movies and numerous CD compilations.)

When quotes from copyright protected works can be used in songs, books, blogs or websites without permission of the copyright owner… is a grey area and the facts and circumstances are fundamental to the case by case evaluation of copyright infringement.

Let the good times roll and stay clear of copyright infringement. “Laissez les bons temps rouler”!! (the “Cajun in your pocket” toy says this too.)

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

vk@kasterlegal.com

See also: http://www.emanation.com/products/cajun-in-your-pocket and Emanation Inc. v. Zomba Recording, Inc., 72 Fed. Appx. 187 (5th Cir. La. 2003). Emanation Inc. v. Zomba Recording, Inc., 72 Fed. Appx. 187 (5th Cir. La. 2003).

Seeking Copyright Termination for Y.M.C.A. and other hit songs of 1978 Reply

It’s no secret that young musicians often have zero bargaining power when it comes to negotiating recording contracts. (Congress even knows this which is why they inserted the Copyright Termination provisions into the US Copyright Law).  Usually, recording contracts signed by musicians favor the recording companies heavily.  (ie recording company forks over $$  and makes an investment in an unknown and not-yet-famous musician… and this is done on the recording company’s terms.)

If and when the musician becomes famous (for example: Bob Dylan, Bryan Adams, Tom Petty, Loretta Lynn, Tom Waits, Charlie Daniels and Victor Willis) … then the record company makes money… and the musician is already bound to the terms of an unfavorable agreement that exploits them.  FOR THIS REASON, the US Copyright Law contains termination provisions.

News of the copyright termination provision abounds recently; since, the first batch of songs from 1978 will be eligible for copyright termination in 2013… AND notice of the intended termination must be given this year. With some exceptions, The Copyright Law states that a grant or transfer or license of a copyright that was made by an author in or after 1978 may be terminated by that author (or his widow and/or children)  35 years after the grant.  Authors must give notice of their intent to terminate not less than two or more than ten years from the intended termination date.

The time is NOW and evidently many famous musicians including Bob Dylan, Bryan Adams, Tom Petty, Loretta Lynn, Tom Waits, Charlie Daniels and Victor Willis (of the Village People/YMCA) have given notice of copyright termination.  Not surprisingly the recording companies are putting up resistance to the possible disappearance of large revenue streams.  News reports indicate that the recording companies are challenging Victor Willis’s claim on the basis of ‘work for hire.’  This means that the companies claim that Willis was an employee… and legally… status as an employee trumps a copyright termination claim.  It will be interesting to see what evidence is presented to the court to prove this claim.    (fyi… living in a van or at a YMCA without health insurance or employee benefits is not a strong indicator of work for hire/employee status.)

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

vk@kasterlegal.com

For more info: Termination of Transfers and Licenses Under 17 U.S.C. §203 at  http://www.copyright.gov/docs/203.html ; see also the ‘Statement of Marybeth Peters, The Register of Copyrights, before the Subcommittee on Courts and Intellectual Property Committee on the Judiciary, United States House of Representatives, 106th Congress, 2nd Session, May 25, 2000 at http://www.copyright.gov/docs/regstat52500.html; @iplegalfreebies and www.kasterlegal.com.

Copyright is valuable – ‘The Birthday Song’ earns $2 Million a year in royalties 1

Would you have guessed that the song, ‘Happy Birthday to You’ generates an estimated $2 million dollars a year in royalties?  (and has earned this much annually since 1996)  It’s only eight measures long, spans an octave and was written for children …but it’s a big FullSizeRender (3)money maker.

The song has appeared in over 140 movies, in countless advertisements for products ranging from cars to cereals to insurance to paper products and pet stores… and was featured in the world’s first singing telegram in 1933.   Royalties are earned for public performances of the song as well as its use in movies, television shows, advertisements, music boxes, theatrical productions and the like.  (Just an fyi… singing it around the dinner table or serenading your friend is a royalty-free private performance.)

‘Happy Birthday to You’ was written by two sisters… one was an educator and the other a composer.  They were knowledgeable about copyright law and took steps to register their work for copyright protection.  They may not have guessed that their song would become one of the most popular songs in the 20th Century…. earning over an estimated $45 million dollars to date.  (Spending $35 to register your music for copyright protection pays off –> http://t.co/ynaHCbX )

(Since this blog just celebrated its first birthday… this is a timely topic.)

BY: Vanessa Kaster, Esq. LL.M.

vk@kasterlegal.com

An interesting reference for more on the copyright issues surrounding the Happy Birthday song, see Professor Brauneis’ legal paper http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1111624

Were you wondering what happened to Jamie Thomas (she was sued in 2006 by Capitol Records for illegally downloading songs)? 5

Do you remember the hoopla that surfaced in 2006 when Jamie Thomas was sued by Capitol Records for illegally downloading 24 songs for her personal use?  Were you wondering what happened to her?  ANSWER: she’s been in and out of court this whole time… and last week a District Court Judge drastically reduced the damages awarded to the record company on a constitutional basis.

The Story:  Ms. Jamie Thomas illegally downloaded 24 songs on Kazaa (for her personal use) and was sued by Capitol Records.  After Capitol Records sued Ms. Jamie Thomas for illegally downloading 24 songs that they own…. a copyright controversy swelled when the jury awarded damages of $222,000 ($9,250 per song) for Jamie’s infringement.  The media continued to follow the case as it moved in and out of court and the damages awarded to Capitol Records for Jamie’s copyright violation shifted upward from $222,000 ($9,250 per song) to 1,920,000 ($80,000 per song) and back down to $1,500,000 ($62,500 per song).

Last week, a District Court Judge reduced the damages awarded by the jury to Capitol Records from $1,500,000 ($62,500 per song) to $54,000 ($2,250 per song).  The judge’s opinion stats that the reduced award is ‘substantial’, ‘acts as a potent deterrent’ and is the ‘maximum amount permitted under the Constitution.’   The court reasoned that awarded damages are unconstitutional when they violate due process for being severe, oppressive and obviously unreasonable.   (It’s rare for a court to reduce statutory damages.)

What happens now?  This decision could be appealed again by either side.

The decision can be read at: http://www.scribd.com/doc/60635512/Order-on-Motions-to-Amend-Alter-Verdict-in-Capitol-v-Thomas-Rasset  also see, http://www.copyhype.com

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

vk@kasterlegal.com.

 

How much do musicians get paid for digital plays? -Digital Royalty Rates 1

Royalty rates paid to musicians vary drastically depending on how and where the music is played or transmitted.  The rates vary from several cents to a fraction of a penny.

Here are a few music royalty rates:

  • $.0019 cents a song (approx.) per play on satellite radio (like SIRIUS XM)
  • $.0019 cents a song (approx.) per play on Pandora
  • $.09 cents a song (approx.) for a permanent download (like iTunes)
  • $.09 cents a song (approx.) for a physical recording (like a CD)
  • $.24per ringtone.

The numbers are a bit sobering… but great music gets played over and over again… and it all adds up!

For more info on getting paid digital royalties from SoundExchange –>  http://t.co/2WuFV2X   and http://t.co/52HjluX

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

vk@kasterlegal.com

Royalty rate info is available at: http://www.copyright.gov/carp/m200a.pdf; http://soundexchange.com/2010/12/17/looking-for-the-copyright-royalty-boards-2011-2015-rates/; http://www.harryfox.com/public/RoyaltyRateCalculator.jsp and www.kasterlegal.com.

When does Copyright start? Copyright protection starts automatically 2

When does copyright protection start?  It starts automatically, as soon as you create an original work.  It’s like having a baby (ie your creative, brain child)… as soon as it’s in this world it’s yours and it’s covered by copyright protection.   You don’t have to DO anything… other than create it and put it in a fixed and tangible form.

What does this mean?  As soon as you have written a song down; typed out a manuscript; applied pen or paint to paper… copyright protection starts automatically.

Using the copyright symbol © and registering your copyright with the US Copyright Office are two extra steps that give you more rights in your copyrighted work if and when you want to sell it, transfer it or protect it from being abused, misused or copied by other folks.

There is 99.999% chance that you have created original works that are already covered by copyright protection… even if you didn’t know it.

For more info SEE:

–>    How and why to use the © copyright symbol?: http://t.co/iBjePPU

–>    Copyright registration only costs $35: http://t.co/ykPmZ3T

 

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

vk@kasterlegal.com

Licensing a Cover Song: simple music copyright licensing Reply

Securing a license to include a song that you cover (ie a song written by someone else that you record) on your CD is simple and more affordable than you might guess.  For example, if you have recorded a Bruce Springsteen song that you want to include on your ‘soon to be released album’ then you need to secure a license to use the song.  Clearing cover songs has become simple with online licensing and royalty service providers like RightsFlow.

RightsFlow offers an easy online service for licensing cover songs for use on physical CD’s, ringtones, digital downloads and interactive streaming.  So back to the Bruce Springsteen example, the price for licensing a Bruce Springsteen song for use on 500 CD’s and 500 digital downloads is less than $150.00.  If you are selling your CD’s for $10 and giving the digital downloads away for free on your band website… you only have to sell 15 CD’s before you have recovered the licensing costs.  (this is peanuts compared with possible fines and litigation that can be brought on by illegitimate use of a Springsteen song.)

Check out RightsFlow for simple music copyright licensing  –>  http://rightsflow.com/

Note, that RightsFlow offers discounts to ASCAP members.

For more information: @iplegalfreebies and www.kasterlegal.com.

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

vk@kasterlegal.com

Recapture your Copyright After Signing a Harsh Publishing or Recording Contract 1

Often, dynamite musicians and authors are lassoed into harsh and unfavorable publishing and recording contracts long before they become famous.   This usually means that they have no bargaining power to negotiate more favorable contract terms (since they’re not famous or successful yet)… and once they become successful and famous, they have already signed and bound themselves and their copyrighted works to an unfavorable contract.

Is there a chance to recapture your copyright and negotiate better contract terms after you’re famous and have more bargaining power?  YES!  Although, it takes a few decades for this option to become available and it is subject to a specific and detailed, procedural obstacle course.

Depending on when a work was released and with certain exceptions, authors and musicians have a chance to recapture their copyrighted materials that have been assigned to publisher or producer and renegotiate contracts 28, 35 or 56 years after the work was created.  While this doesn’t give an immediate do-over… if the song, album, novel or comic strip is a hit …this can help recapture the copyright and revenue for the creator.

[the Legal term for this is Copyright Termination.  Although this name is slightly misleading since it doesn’t necessarily mean that the copyright is entirely terminated.. but rather assignments are terminated and the copyright can revert back to the creator.]

ORIGINALITY is Key To Copyright Reply

Originality is key to securing copyright protection over a work.  This is true for literary works, sculptures, paintings, music and all varieties of creative output.  While this may seem obvious, in truth it’s a gray area.  Here are a few examples:

  • TELEPHONE DIRECTORY, WHITE PAGES:  not original; therefore, no copyright protection.
  • PHOTOGRAPH OF AN ARMFUL OF PUPPIES: is original; therefore, making a sculpture that is a deliberate copy of the photograph is a copyright violation.
  • A PAINTING: is original; however, making an engraving of the painting is not a copyright violation because of the engravers artistic use of light, shade, lines and dots.

MARDI GRAS INDIAN COSTUMES: possibly original works of sculpture.  At present the Mardi Gras Indians are seeking copyright projection for their elaborate costumes as works of sculpture.

What does this mean?  For the Mardi Gras Indians it will mean that photo releases, licenses and fees will need to be paid to the Indian sculptors before others copy, reproduce and sell their images as photographs, fine art, in calendars or on t-shirts.

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

vk@kasterlegal.com

for info on copyright registration –> http://t.co/ynaHCbX; @iplegalfreebies and www.kasterlegal.com.

Three Myths About Music Sampling Reply

MYTH:  sampling less than 6 seconds of someone else’s music is okay

MYTH:  sampling less than 5 words of someone else’s lyrics is okay

MYTH:  sampling from a church group is okay

ALL THREE OF THESE STATEMENTS ARE MYTHS.  None of these instances are an automatic green light when it comes to sampling someone else’s music without permission.

[For more on Music Sampling see —> http://wp.me/p10nNq-3A ]