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Howard Leib : Copyrights
Howard Leib : Copyrights
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cultivating resources
CHILDREN'S MUSIC AND THE LAW-COPYRIGHTS
I frequently hear the terms copyright and trademark used interchangeably. They are not, however, the same thing. As an entertainment lawyer (and former patent/trademark/copyright lawyer), copyrights are one of the basic building blocks of almost everything I am paid for. And, while you may not realize it, they are also a basic of your livelihood as well.
Copyrights in music are a broad subject. To keep from putting you to sleep, in this article we will discuss using someone else's song on your recording.
Every record embodies two separate, copyrightable works. A song and the performance of that song. If you want to perform someone else's song on your record you must, with the one exception I will describe later, get the permission of the song's owner.
A song belongs, initially (and barring any contract that would change this) to the party(ies) who writes it. The copyright law grants the author (owner) certain exclusive rights, these are the rights "to do and to authorize any of the following:
1. To reproduce the copyrighted work in copies or phonorecords;
2. To prepare derivative works based upon the copyrighted work;
3. To distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
4. In the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly; and
5. In the case of literary, musical, dramatic and choreographic works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly."
Anyone seeking to make use of one of these rights must get permission. In the case of recording a song, you are utilizing right (1) above, i.e., you are reproducing the work (the song) in a phonorecord. To do so, you need what is known as a "mechanical license". A mechanical license grants the right to reproduce a song on an audio record. It usually requires a payment of a "mechanical royalty".
The mechanical license is granted by the publisher of the song. The publisher is the person or entity who controls the copyright. This will either be the songwriter or a company to whom the songwriter has granted these rights. ASCAP and/or BMI have no role to play in connection with mechanical royalties. They are involved with performance rights.
The mechanical royalty is a standard amount set by a quasi governmental body. This amount can be lowered by agreement between you and the publisher and the grant of rates equal to 3/4 of the statutory rate are not uncommon. The mechanical royalty is usually paid by the record company. Those of you who are not distributing your own records but instead have agreements with record companies should check those agreements. Frequently there are maximums (i.e. 10 x 3/4 x statutory rate) as to what the record company has to pay you as a cumulative mechanical royalty. Anything above that will come out of your royalties.
If you want to get a license from the publisher, you must first find out who the publisher is. You can do this by asking the writer, checking the liner notes of the record the song is already on or, if you can't find it, you can check with ASCAP and/or BMI. If the songwriter is a member of ASCAP or BMI, the index department may be able to tell you who the publisher is. These organizations also have their data bases available on line.
The mechanical license will specify the royalty you will pay, when you will pay it, and how you will account as to sales made. The publisher is not required to sign a mechanical license, however if they refuse, and provided the song has been previously released on another record, the law does provide a means for you to get what's called a "compulsory license". The procedure is complicated and, hopefully, you will never have to use it.
You cannot record altered lyrics of the song, or new lyrics without the publisher's permission. This would constitute a "derivative work", i.e., a new work based on the original work, a right reserved to the copyright owner.
Your liner notes should include the names of the writers and publishers of all songs. First, this is courteous and will aid the next person who wants to record the song because they heard you sing it. Second, it will help your record company make proper payments. Third, and finally, it should not appear to the public that you are taking credit for the song you did not write. Over on the "pop" side of the music business, law suits such as this "pop" up regularly, especially in connection with sampling. While these are not copyright lawsuits, they are still lawsuits and you (and our corner of the industry) don't need them.
The above rules apply only to songs still under copyright, as opposed to those in the public domain. It is often difficult to know which is which, but a good rule of thumb is to assume that anything written after 1920 is still under copyright.
It is important to respect other peoples' copyrights and to make the required payments. The only value a song has is in the payments it receives for being used. While it would be nice if the recognition of use were its own reward, most songwriter need the money too.
I hope the foregoing was helpful. You can reach me with questions or suggestions at:
Howard Leib, Esq.
271 Madison Avenue, Suite 200
New York, NY 10016
(212) 545-9559, Fax (212) 545-0909
HowardLeib@aol.com
(ed. Howard's been practicing in NYC since forever, and is the founder of the Children's Entertainment Association.
Visit his sites: http://www.kidsentertainment.com/ and http://www.braincamp.com/
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