Copyright Law: Using quotes from someone else in your book, blog or website 3

Dr. Martin Luther King Junior’s speech ‘I Have a Dream’ is one of the most recognizable speeches in US history and it is covered by copyright protection.  Dr. King registered the speech for copyright protection in 1963.   This leads to the question, when can quotes from his famous speech or other copyright protected works be used in other books, blogs or websites without permission?

The answer to this question is vague, ambiguous and needs to be analyzed on a case by case basis.  Generally speaking, it is possible to use limited portions of a copyright protected work for news reporting, commentary, criticism and scholarly reports under the fair use doctrine of the US copyright law.  However, there are no legal rules permitting ‘free use’ of a certain  number of words or percentage of a copyrighted work.  Additionally, there are several factors that weigh heavily into the analysis: 1) the purpose and character of the use, 2) how much money will be made from the use, 3) the nature of the work, 4) the amount and substantiality of the portion used, and 5) the effect of the use on the potential market and value of the copyrighted work.

Unfortunately, there is not a clear rule regarding when and how much of a copyright protected work can be used without permission.  Dr. King’s heirs have the legal right under copyright law to monetize the ‘I Have a Dream’ speech that they inherited and to treat it as commercial property.   (The safest bet when quoting from copyright protected work is to seek, pay for, and get permission to use the material.)

Note, that crediting the source does not substitute getting permission to use or quote from the material.

Note 2, any work published in the US before 1923 is likely in the public domain and is FREE to use and quote from. (Copyright protection of these older works has likely expired).

For more information on Copyright and Dr. King’s speeches see this post –> http://wp.me/p10nNq-FD; for more information on using quotes from someone else see these other two posts –> http://t.co/rLurDnX and http://wp.me/p10nNq-fd  AND for more information on PUBLIC DOMAIN works that are FREE to use and quote from —> http://copyright.cornell.edu/resources/publicdomain.cfm; 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 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

“Use in all media” Contracts – what are you giving away? 1

Contracts come in all shapes and sizes.  Musicians, artists, photographers, graphic designers and all sorts of creative folk share their creative genius by taking paid gigs to make, create or share things that they have created with other (perhaps less creative) folks. Take a careful look at the nuts and bolts of the agreement that transfers the right to use your work to others, so that you are clear about what you are giving and getting out of the deal.

Are the use rights for ‘ALL MEDIA’ being given away? If yes, then you have an All Media contract, and it’s important to understand what ‘use rights for ALL MEDIA’ means.  All Media contracts are common (virtually standard in the Music Industry)… and their mission is to transfer the rights to use the song or other creative work in ALL types of MEDIA.  ‘All types of media’ sounds broad, and it is.  For example, transferring the rights to use a music jingle in ALL types of MEDIA includes having the right to use, reproduce and sell it on DVD’s, CD’s, ipad applications.. and possibly any future media outlet that is yet to be developed.

The opposite of an All Media clause within a contract, is a clause that lists the approved types of media where the song or other creative work can be used.  For example, contracts that were written to license music for TV sitcom broadcasts back in the 1970’s had to be renegotiated when the networks decided to re-release the sitcoms on DVD.  Since the use of the media on DVD wasn’t accounted for in the original contracts, a new crop of contracts were required to cover this type of use.

Be clear about you are giving and getting out of the deal when you share your creative work.