Digital Media – Domestic Licensing Rights
If you are going to be involved in any digital media, documentaries, TV, Internet, commercials, television, motion pictures, you will need and understanding of digital rights and potential infringement on others rights. As a writer, artist, editor or producer, you attorney will appreciate being able lto help you develop rather than untangling the mess.
Music tends to be a little more complicated, sometimes. Sometimes the rights have to come from different parties for one single piece of music, i.e. publishing right, recording rights and synch rights may all have to be obtained. Music falls under the Library of Congress authority to assign copyrights. What you want to do with the music for recording, perform, publishing, broadcast, synching etc., will determine how the music is licensed or how the rights are obtained. Foreign rights are very different; this article refers to domestic US rights.
For music there are two types of copyrights,
- Copyright for Musical Composition (Rights in Musical Composition) – this is the right to the notes and lyrics that are tangible and fixed on paper. B Sometimes this is called “The master.”
- Recording of a particular version (Rights in Recording) – this is the right to a particular version of the above copyright.You have to have the license or authority to the first one above to complete the second type of copyright.
Music publishing houses generally control the actual copyrights of the songs; usually the record label retains the rights to the Copyright for Musical Composition. However, sometimes the original artist controls these rights. The control over these rights with original artists usually are because the song was copyrighted long ago (music producers got wise how to make more money) or the artist is a top seller with some play in the market able to call some negotiations and sway with the distributors.
There is other music that is in the public domain and you can use copyright free. Generally, the music is older and you can find a lot at government sites for public domain music.
Rights to Musical Composition
If the music for which a Right to Musical Composition copyright has been obtained is going to publically be performed then the copyright owner has the rights to license the music. This is why music-clearing houses control this, since finding the artists of many different songs would be outrageously time consuming.
Public broadcast means a live performance, a broadcast – like a TV show, film, digital media or radio and the like. Songs can be licensed individually or in a group called a “blanket license.” Even putting someone else’s music on a website requires a license.
Performing Rights Organizations – called PRO are BMI, ASCAP and SESAC and they each have a catalogue of music that they are authorized to license. The rates are generally preset according to a court that has determined the type of usage. An Internet commercial is different from a Broadway performance and therefore, the calculation of the cost is not based on the popularity of the music, but rather the use. These organizations do not control “who” can license, but rather the administration of the process. If an artist retains their original rights, they can control who, what and where their music is licensed to, donated to, where it broadcasts and so forth. SESAC carries a smaller gourp of artists who do not fall under the same court standard and music in this catalogue is not always on a set public rate.
The Rights in Recording
The rights of recording means more than recording and extends to performances that are based in bricks and mortar and retail performance even if they are not recorded digitally. Outside the digital audio transmission boundaries an artist must pay for a license. The only exception might be a performance in public but not over the airways.
If you stream any music digitally for almost every imaginable reason you must have permission through license. This is called a royalty and it is paid to the owner of the Rights in Musical Composition. The governing body is called the Copyright Royalty Board.
Obtaining a License
You must be very specific when obtaining a license. The number of performances, the place, the recording and broadcast must specifically designed and licensed.
The Synch License
The synch license refers to the rights when a publisher or songwriter gives the right to the recording but no to any pre-existing master rights. When a particular piece of music is fixed to digital and a pre-existing master is synchronized to the visual moving images of film, television or video license must be obtained for the “Master” and the “Recording.” If the recording for audiovisual material is going to be original then one might only need the Master.
These rights are called “Master Use.”
The Fair Use Doctrine of Music
You can read about the Fair Use Doctrine in its general definition here. However, music rights may be a different story than other material like documentaries and journalism.
Sound recording before 1972 are not subject to Federal Copyright Law. However, copyright holders may claim state rights requiring license and astute artists who guard their copyrights ay consider you infringing if you use their music.
READ AND HEAR THE KOOKABURRA CASE where a folk song was held as copyright infringement.
Under the Fair Use Doctrine, the use of limited portions of copyrighted material for purposes such as teaching, research, criticism, news reporting or parody is permitted without the authorization of the copyright owner.
The Fair Use in music falls under the same standards as for visual media and is not clear-cut, but here are the four guidelines.
(i) The nature of the use, including whether such use is for a commercial purpose or rather for an educational or nonprofit purpose;
(ii) The type of copyrighted work being used (more latitude is given for the unlicensed use of purely factual material than creative material);
(iii) The amount of the original work that is being used in relation to the whole; and
(iv) The effect of the unlicensed use on the market for the original work. In general, in a commercial context, courts will be reluctant to permit unlicensed use of creative copyrighted works, particularly where, as in the case of music, there is an established licensing market.