Music Copyright Basics
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TO OUR READERS: THE FOLLOWING IS NOT INTENDED AS A LEGAL TREATISE OR TO CONVEY LEGAL ADVICE. IT IS INTENDED ONLY TO PROVIDE A BASIC UNDERSTANDING OF TELEVISION MUSIC COPYRIGHTS. PLEASE CONSULT A LEGAL EXPERT IF YOU ARE EITHER INTERESTED IN SECURING COPYRIGHT PROTECTION FOR A PARTICULAR WORK OR IN OBTAINING A LICENSE TO USE COPYRIGHTED MATERIAL.
COPYRIGHT AND MUSIC LICENSING
The basic purpose of copyright law is to promote creative expression. The law encourages such creativity by allowing the “authors” of literary, musical, and other forms of expression to control, for a period of years, the use of their works. The theory of copyright is that, by ensuring that authors will be fairly compensated if they share their creativity, the public will be served by the creation of the widest range of expressive material. It is important to note that copyrights do not protect ideas, only the embodiments of those ideas in a “tangible” form of expression, such as in writing or computer code. It is also necessary that the work involved possesses sufficient creativity to warrant copyright protection. While this is not a high standard, copyright law does not, for example, protect song titles (as opposed to song lyrics or the music itself), presumably because of the titles’ limited creative content.
Copyright law in general requires the permission of these copyright owners to make certain uses of copyrighted material. Without such permission, the copying, public distribution, public performance, public display, or the creation of so-called “derivative” works is forbidden and can subject the violator to monetary and other penalties. The most common means of securing permission is through a license covering specified uses for a specified period of time. The protection afforded creators of music- composers, lyricists, and their music publishers- and to producers of sound recordings is an aspect of copyright law that is important to broadcasters. We discuss below some of the basic copyright concepts that are important in dealing with these types of works. What follows is not intended as a comprehensive analysis of music and copyright law; instead, it is designed to provide a practical look at what can be a very complex and misunderstood area of the law.
COPYRIGHTS IN MUSICAL WORKS
The public uses musical compositions in a variety of ways.
These different uses implicate different copyright rights:
1.) Publication and copying of the work in sheet music, used by musicians to play the composition, triggers the copyright owner’s distribution and reproduction rights. The publication of sheet music is comparable to the publication of other written materials and is subject to the same basic copyright rules.
2.) The copyright law also entitles the owners of musical compositions to be compensated when their works are publicly performed as that term continues to be defined by law and the courts. Such performances taking the form of broadcasts constitute what are known as “small” or non-dramatic performances, to be distinguished from performances of musical compositions in a live theatrical or operatic presentation, which are known as “grand” or dramatic performances. As a result of complicated (and illogical) legal history, television broadcasters bear the burden of obtaining music performance rights for the music contained in pre-recorded programming supplied to them by third parties even though movie theaters do not.
3) The copyright law recognizes two distinct recording rights when a musical work is incorporated into either an audio or an audiovisual format. Recording a musical composition on a record, audiotape, or CD for distribution to the public represents a form of distribution and reproduction known as the mechanical right. Once a song has been recorded, this mechanical right becomes a “compulsory” copyright, the maximum fee for which is determined by the government. Recording a musical composition as part of a video recording in the form of a movie, television show- or music video recording entails a form of reproduction known as the synchronization right, i.e., the right to synchronize music to video. This right is separate from a “performance” right and clearances of both are generally required for the production and broadcast of pre-recorded television programming.
Performance rights are generally acquired by broadcasters under their licenses with ASCAP, BMI and SESAC, while synchronization rights are generally acquired by program producers in direct negotiations with the composer or music publisher (or with the music publisher’s agent, often The Harry Fox Agency).
4) The digital transmission and/or downloading of a musical composition involves one or more of the distribution, reproduction and public performance rights.
5) Different arrangements of a musical composition can call for separate licenses as “derivative” works. Getting permission to use a song, therefore, does not automatically convey permission to vary the music or lyrics, for which additional consent may be required.
COPYRIGHTS IN SOUND RECORDINGS
The owners of sound recordings (such as records and CDs) containing artists’ performances of various musical works hold separate copyrights. The principal rights are:
1) The right to make copies of the sound recording, either in its entirety or in the form of individual tracks-the so-called Master Use Right.
2) The right to perform the sound recording by means of digital audio transmission, which requires the consent of the copyright owner to “stream” over the Internet tracks from sound recordings. Note that there is no corresponding public performance right granted to the owner of a sound recording when its work is broadcast over the air or performed other than as part of a digital audio transmission.
LIMITATIONS ON THE RIGHTS OF COPYRIGHT OWNERS
As is by now obvious, the copyright law provides a given copyright owner a series or “bundle” of discrete rights which that owner in general can exploit as desired. There are, however, important limitations.
First, the copyright law places certain limits on the control, which can be exercised by the copyright owner over the uses that can be made of copyrighted works. If, for example, the period of exclusivity provided by the law has expired, then the work has entered the “public domain” and is freely available to the public for use. To be sure, the duration of copyright is extensive. For works recently created, it extends for the life of the author plus 70 years. The failure of a work to provide copyright “notice,” that is, to contain on its face a claim of copyright protection, is not a reliable basis for concluding that a work is in the public domain. Unfortunately, there is no government-compiled list or other authoritative source that identifies public domain music.
Second, certain uses of copyrighted material constitute “fair uses.” These are uses that are viewed as either so inconsequential or so important in terms of news or educational value that the use is legally privileged even without the copyright holder’s consent. Determinations as to fair use are case-by-case. Reliance on fair use as the basis for not seeking permission for use is not recommended without advice of legal counsel.
Third is the concept of a so-called “ephemeral license,” which permits a television network or local television station (among others) to make a single copy of a musical composition or sound recording and use it “within its local service area” for not more than a six-month period (unless preserved after that only for archival purposes). If the conditions of the ephemeral license are met, no payment for the copies involved are required, provided that all necessary performance licenses have been secured.
THE ROLE OF THE TELEVISION MUSIC LICENSE COMMITTEE
The American Society of Composers, Authors and Publishers (ASCAP), Broadcast Music, Inc. (BMI) and SESAC each represent the interests of composers and music publishers in the licensing of “small” (or non-dramatic) performing rights. The Television Music License Committee has, for more than 50 years, represented the interests of local television broadcasters in dealing with these three licensing organizations. The Committee is responsible for negotiating and coordinating litigation of the fees payable by local television stations for public performances of music in their programs, excluding ABC, CBS, NBC and Univision television network programs. Those networks negotiate separate music performance licenses for their network programming. Affiliates of these four networks pay music performance rights fees only for their locally produced, syndicated and feature film programs. Any other commercial television station, on the other hand, pays music performance rights fees for all of its programming, including network.
Historically, local television stations paid for music performing rights under “blanket” license arrangements with the performing rights organizations (“PROs”) ASCAP, BMI and SESAC. The blanket license allows a station to use any of the songs included in the repertory of a given PRO for a single fee. This gives a station maximum flexibility in deciding what music to use as long as it has signed a blanket license with all three of these PROs. Among them, the three PROs represent virtually all copyrighted musical compositions in the United States.
In the early years of television, the blanket license fee was calculated as a percentage of the station’s revenue, with some adjustments for certain costs. In 1993, the federal “rate court” that has jurisdiction over ASCAP under a consent decree (see History) ruled that television stations were entitled to a blanket license with a flat, industry-wide fee, adjustable on an annual basis. The industry-wide fee is allocated to individual stations based on a formula developed by the Television Music License Committee and approved by the rate court. The formula also is used to allocate the industry-wide BMI blanket fee.
These blanket licenses are favored by the PROs because they are easy to administer, provide a predictable stream of revenue, and afford maximum flexibility in distributing royalties to composers and publishers. The PROs sample music played on television and then distribute the royalties received from blanket licensees in accordance with their own formulas. Composers belong to only one of the PROs while music publishers (which help exploit composers’ works commercially) may be members of more than one.
The producer of a television program typically prepares a music “cue sheet.” This cue sheet lists the name of each song, the composer and music publisher, how long it ran and how it was used in the program (e.g., as theme or background music). The PROs use cue sheets to distribute stations’ license fees to their members, but do not make these cue sheets publicly available to users or composers.
The PROs pay different fees to their members for different uses of music. Generally, a feature song (one performed on camera) is worth more than a background song or a theme song under the PROs’ blanket license distribution systems. The per program license discussed below has created different systems of distribution than the historical means of distribution under the blanket license.
PER PROGRAM LICENSE
A “per program” license is another form of a blanket license for television stations. As of now, it is available from ASCAP and BMI, but not SESAC. Under this license form, a station is still entitled to use any music it wants from the ASCAP or BMI repertory, but the station pays a fee only for each program that includes music from that repertory. If a program includes at least one second or “needle drop” of music from a song in the ASCAP repertory, it would be subject to the full fee payable for that program. If a program includes ASCAP and BMI music, a station pays a full per program fee to both societies. On the other hand, if all the music in the program were BMI music, the station would have no fee obligation to ASCAP as to that program.
The per program license offers an important licensing option to stations. Even if a program has ASCAP or BMI music in it a station doesn’t have to pay a fee for that program if it negotiates a separate “source” or “direct” license for the performance rights with the owner of the music copyright. Neither ASCAP nor BMI has exclusive licenses with their members/affiliates, so those composers and music publishers can agree to separately license these performance rights for use in a particular program. This injection of competition in the licensing of music performing rights licensing has been a central mission of the Television Committee since its founding.
There are tradeoffs. Under the per program license, stations have greater recordkeeping and reporting requirements, since they are responsible for tracking and providing music use information with respect to every program they broadcast. A station’s per program license fee is a function of the percentage of its total non-network revenues that are associated with programs containing music in the relevant PRO’s repertory. The station also pays a separate fee for the music in commercials, logos, public service announcements and promotional announcements. These uses of music are considered “incidental uses.” The fee is calculated as a fixed percentage of the blanket fee that would otherwise be payable by the station. In addition, music heard in the background of a news program that is not inserted by the producer, and similar such uses, are subject to a separate “ambient music” fee, also based on a percentage of the blanket fee. Although this latter form of music use arguably falls under the “fair use” copyright exemption, stations have agreed to pay a fee to avoid needless legal disputes.
Under copyright law, if there are two songwriters of a song and each belongs to a different PRO, a user only has to pay one PRO for the use of such “split works.” This works to advantage for a station operating under ASCAP and BMI per program licenses. If, for instance, all of the other songs in a program are BMI songs and there is one “split work” song, a station could elect to treat the split work song as a BMI song and avoid paying ASCAP fees for that program.