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MUSIC
FREQUENTLY ASKED QUESTIONS
Can
I copyright the name of my band?
No. Copyright is meant to protect expressions of ideas, not single words
or short phrases. To protect the name of a band, you may be able to register
it for trademark protection. For more information on trademarks, visit
the Patent and Trademark Office's web site at http://www.uspto.gov/web/offices/tac/tmfaq.htm.
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Do
you need a license to play music over the radio?
Yes. When a song is played over the radio, there is a public performance
of a musical composition. To publicly perform a musical composition, the
user must obtain a license from the copyright owner or his representatives.
Typically, in the United States, composers and music publishers are represented
by one of the three performing rights societies: ASCAP (http://www.ascap.com)
BMI (http://www.bmi.com
)and SESAC (http://www.sesac.com).
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So,
sound recording owners do not have public performance rights?
Not exactly. In the United States, sound recording owners have limited
public performance rights as well. Since February 1, 1996, sound recording
owners have the exclusive right to control certain digital performances
of their works. For instance, they can control interactive digital performances
of their sound recordings. Under copyright law, an "interactive service"
is defined as "one that enables a member of the public to receive, on
request, a transmission of a particular sound recording chosen by or on
behalf of the recipient." Where a service is interactive in nature, the
sound recording copyright owner's exclusive right applies regardless of
whether a fee is charged to receive the transmission.
In addition, the
Act gives sound recording copyright owners certain rights relating to
various types of noninteractive transmission (including both subscription
and nonsubscription transmissions).
For more information
on these provisions, see the Recording Industry Association's web site
(http://www.riaa.com/)
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How
does copyright law apply to music used on the Internet?
The laws and principles are the same. In most cases, to reproduce, distribute
and perform music via the Internet, you need the authorization of the
music composers and sound recording owners. Here are some examples:
- If you copy sound
recordings onto a server and then allow users to download those recordings,
you would need a license from the music composers and the sound recording
owners for the reproduction and distribution of the recordings.
- Also, if you
have a transmit musical performances to the public over the Internet
(i.e., webcasting services or other radio-style services that transmit
over the web), you would need a license for publicly performing the
musical composition. Visit the web sites of ASCAP (http://www.ascap.com)
BMI (http://www.bmi.com
)and SESAC (http://www.sesac.com)
to learn more. You also must pay a statutory license for the digital
performance of the sound recordings. For information on this new area,
visit the Recording Industry Association's web site (http://www.riaa.com)
or the Software | Internet
section of this site.
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Can
I legally make CDs or tapes of recordings for others so long as I donÍt
charge or otherwise make a profit?
If you do not have the requisite licenses from the sound recording owners
and music composers, you cannot reproduce and/or distribute phonorecords
containing their recorded music. This is true even if you do not make
a profit from the activity.
In December 1997,
the U.S. enacted the No Electronic Theft Act, commonly called the NET
Act. Among other things, the NET Act did the following:
- It expanded the
definition of "financial gain" to include the receipt of anything of value
including the receipt of other copyrighted works. Therefore, where an
individual barters or trades in illicit copies or phonorecords, he or
she could be criminally liable under the NET Act's provisions.
- It criminalized
the willful reproduction & distribution of copyrighted works where there
is no financial gain. So, even in cases where a person gives away unauthorized
copies of CDs and tapes, criminal penalties may be imposed.
- The NET Act clarified
that criminal penalties can be applied to illicit reproductions and distributions
by electronic means.
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Do
I need a license if I want to record and distribute a CD of myself singing
a popular tune?
If you are creating an original recording of a copyrighted work, usually
the copyrighted musical composition (owned by someone else), you need
a license from the music publisher. In contrast, if you want to copy a
sound recording from a CD or other phonorecord, you would need permission
of the music publisher as well as authorization from the owner of the
sound recording in question. The only time you would not need a license
is if you wrote the musical composition (including both the lyrics and
the music) yourself.
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What
is fair use?
There is a principle under copyright called "fair use" which allows people
to use copyrighted works, without a specific license, under certain circumstances.
Since fair use is a defense to lawsuit for copyright infringement, whether
a particular use is "fair" is ultimately determined by a court or jury.
When determining whether a use was a "fair use," a court will typically
look to:
- the purpose and
character of the use (i.e., was it for commercial purposes or not),
- the length of
the excerpt (i.e., how much of the whole work; does the excerpt use
the most distinctive part),
- the nature of
the work, and
- how the use will
impact the market for the original work.
Short excerpts for
educational purposes or for the purpose of criticism or comment may be
considered "fair uses;" however, there is no set formula for determining
at the outset whether your use will qualify for this defense. In addition,
the U.S. Supreme Court has stated that, in analyzing these factors, courts
should focus on whether and to what extent the new work is "transformative,"
that is, whether it alters the original work with new expression, meaning,
or message. The more transformative the new work, the less will be the
significance of other factors that may weigh against a finding of fair
use.
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Who
does the Harry Fox Agency represent?
The Harry Fox Agency (http://www.nmpa.org/hfa.html/),
or HFA (as it is commonly called), represents music publishers. In turn,
music publishers represent songwriters and artists.
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What
does the Harry Fox Agency license?
The Harry Fox Agency (http://www.nmpa.org/hfa.html/)
licenses mechanical rights and synch rights for musical compositions.
HFA also licenses for electronic transcription, radio syndication, corporate
exhibitions, etc.
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How
much does it cost to get a mechanical license?
For phonorecords made and distributed after January 1, 1998, the current
statutory royalty rate is 7.1 cents per song (per unit distributed) where
the song is under 5 minutes in length. For songs longer than 5 minutes,
the rate is 1.35 cents per minute. For more on royalty rates, visit http://www.nmpa.org/hfa/hfafaq.html.
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What
is the rate for a synch license?
These are typically negotiated on an individual basis with the copyright
owner. Some important considerations for the license: - the song to be
used (is it a popular tune or currently unknown); - the duration of the
use; - the geographic scope of the audio-visual work to be released (meaning
will it be release in one country or more); and - the type of audio-visual
work (is it a commercial or an educational program). For questions on
synch licensing, contact synch@harryfox.com
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What
do ASCAP, BMI
and SESAC license?
These organizations, commonly referred to as performing rights societies,
license the public performing rights for musical compositions. For information
on the music in their respective catalogues, contact them directly. In
cases of digital performances, you also may need licenses from the sound
recording owner, typically the record label.
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What
are the fees associated with performing rights licenses?
These vary depending on the actual use as well as other factors. Contact
the various performing rights societies to get information on the costs
involved.
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Who
is really hurt by record piracy?
With losses amounting to hundreds of millions of dollars in displaced
sales every year, piracy hits everyone who loves music.
Consumers are the
ultimate victims of sound recording piracy, because industry-wide losses
due to piracy can drive up the prices of legitimate recordings. In addition,
illegal recordings are often poor in quality and, of course, non-returnable.
Finally, the public suffers because piracy deprives songwriters and performers
of their livelihood, and, without a steady income, most would not have
the same economic incentive to create new works.
Artists, musicians,
songwriters and producers - the people who pour their creative energy
into making recordings - lose money in the form of royalties and fees.
Most musicians depend on royalties for their livelihood. Many artists
would not be able to create the music that the public loves and wants
if their income is reduced, or eliminated, due to piracy. In addition,
their reputations suffer when consumers unknowingly purchase poor quality
copies of their works.
Retailers and distributors
lose sales to pirates because they can not compete with the low prices
charged for cheaply produced illegal copies. Some retailers have reported
street vendors selling illegal recordings right outside their doors and
siphoning off as much as 40% of their business. Record companies are seriously
affected by piracy. In today's marketplace, 85% of all recordings do not
make back their production costs.
Record companies
rely on income from the 15% of recordings that are successful to subsidize
less profitable types of music, to cover the costs of developing new artists
and to keep their businesses operational. And it is precisely these profitable
recordings that pirates copy.
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Do
I need permission to upload music to my web site?
To include music as part of a web site, you typically need authorization
from both the music composer and the sound recording owner. There are
several organizations involved in the licensing of sound recordings and
musical compositions. ASCAP (http://www.ascap.com),
BMI (http://www.bmi.com)
and SESAC (http://www.sesac.com)
are three organizations that administer licenses for the public performing
of musical compositions. The Harry Fox Agency (http://www.nmpa.org/hfa.html)
coordinates licenses to reproduce and distribute musical compositions.
Also, the record label which produced, manufactured and distributed the
recording in the first instance typically is the sound recording owner
and, therefore, has the authority to license the reproduction, distribution,
adaptation and certain digital public performances of the recording. Most
record labels and companies have web sites or contact information which
is accessible online.
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Links
to other FAQ or Myths web pages
The Harry Fox Agency
- http://www.nmpa.org/hf/hfafaq.html
ASCAP - http://www/ascap.com/licensing/licensingfaq.html
BMI - http://www.bmi.com/licensing/restans.html
RIAA's SoundByting - http://www.soundbyting.com/html/top_10_myths/
Brad Templeton Article - http://www.templetons.com/brad/copymyths.html
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