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.

 

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 ]

Music Sampling: a few Do’s and Don’ts 6

Music Sampling is the act of incorporating bits of someone else’s musical score or sound recording into your own music.  Music Sampling becomes risky business when it’s done without proper authorization and licenses.  To further complicate things, musicians and composers often view sampling as a logical progression in the music composition process; and often ignore the formalities and laws that regulate sampling.

Here are a few basic Do’s and Don’ts of music sampling.

  • IT’S OK TO:  sample from the song White Christmas (original score) because it in the public domain.
  • IT’S NOT OK: to sample from Frank Sinatra’s sound recordings of the song White Christmas because these are not in the public domain.
  • IT’S NOT OK: to sample ‘arrangement elements’ of Frank Sinatra’s sound recordings of the song White Christmas because the sound recordings are not in the public domain.

The common theme of these three examples is whether or not the sampled music is in the public domain.  The public domain is the land of ‘free public property’ and music that is in the public domain is free for the taking, sampling, using, reproducing, or distributing.

What music is in the public domain?  Any musical score that was published in the US before 1923 is in the public domain, due to expiration of copyright.  There are also newer musical scores in the public domain too, but a case by case analysis needs to be done on scores published in 1923 or later to determine if they are in the public domain and free for sampling.   A significant, but easily overlooked detail, is that almost all sound recordings are ‘new enough’ to still be under copyright protection (this includes bit and pieces of the sound recording as well as arrangement elements) and hence are not necessarily free for sampling.

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

vk@kasterlegal.com.

Understand How You’re Getting Paid – ROYALTIES on GROSS vs NET REVENUE and an ADVANCE 1

Publishing contracts include terms for how musicians and writers get paid for their work and understanding these terms helps you figure out how much you are getting paid and when you will see the money.  Most publishing contracts include an ADVANCE and ROYALTIES that are based on either NET or GROSS revenue.  These three little words ADVANCE, NET and GROSS mean very different things.  Let’s break it down:

ADVANCE:  An advance is a set amount of money that is paid upfront when the contract is signed.  The advance can be paid in one lump sum or may be divided in to multiple payments.  Generally royalty payments will not start being paid until the publisher recovers the cost of the ADVANCE.

ROYALTIES based on NET vs GROSS revenue:  Publishing contracts generally grant a percentage of the royalties to the writer or musician and this % will be based on GROSS or NET sales revenue.   A royalty % that is based on the GROSS revenue means that the writer or musician’s cut is calculated from the money made from the sale of the work BEFORE any deductions are made for the publisher’s business overhead costs.  On the other hand, a royalty % based on NET revenue means that the publisher makes deductions for its business overhead costs before calculating the royalties owed the writer or musician.  The writer or musician makes more money if a publishing contract is based on GROSS revenue; however, basing royalties on NET revenue is more common.

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

vk@kasterlegal.com

LEARN MORE: Another important and common contract term to be aware of  is ‘All Media’ –> https://iplegalfreebies.wordpress.com/category/all-media-contracts/

SoundExchange pays digital royalties to performers and copyright owners 1

SoundExchange pays royalties to performers and copyright owners when music is played on digital internet and satellite music dollar signproviders.

For example, if you hear Aretha Franklin’s famous rendition of ‘Respect’ played over internet radio, the royalty payments are paid to both Aretha as the performer (paid to her by SoundExchange) and to Otis Redding who wrote the song (ASCAP pays Otis Redding’s estate).  However, if you hear Otis Redding’s original version over internet radio then his estate is compensated for both the original composition, and also for the sound recording (ie both ASCAP and Sound Exchange pay royalties to Otis.)

If you own your own track and play on it, then you get paid twice (if you are registered with SoundExchange) when your track is played on Pandora, Sirius Radio and other satellite or internet radio streaming sites.

Register with SoundExchange –> https://www.soundexchange.com/artist-copyright-owner/does-soundexchange-have-royalties-for-you/

See other posts for more information on unclaimed SoundExchange royalties –> http://wp.me/p10nNq-np, and Digital Royalty rates –> http://t.co/Z0XvrRO; @iplegalfreebies and www.kasterlegal.com

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

vk@kasterlegal.com