Making the Music Come Alive … Legally

Copyrights, Performance & Recording Licenses
Composers/Authors/Printers/Proprietors/Publishers/Copyrights/and more!
(First in a four part series.)

By Judith Galloway, Hood River Valley Chorus, Region 24

Background & Definitions

In order to understand where we are today in terms of copyrights, etc., it would be good to take a quick look at English history leading up to what we have today.
Brief History of Copyrights
Prior to the invention of the printing press back in 1456, any duplication was laboriously completed by hand, one page at a time. After that date, printers had a way to quickly replicate books over and over again and sell the copies for less, making it possible for more people to own and read books. Printers, as owners of the expensive printing presses, started purchasing the works upfront (often for very little money), thus shifting ownership of the works away from the creator to the printers who became Proprietors (owners). The work itself was respected and changes could not be made to it.

In England, and throughout Europe, the reigning monarchs wanted to maintain control/censorship of heretical ideas and the works that promote those ideas, and realized that it would be easier to control the few presses than the many individual creators.
In 1476 (the year that the printing press was introduced to England), the first copyright law was written which required printers to inscribe their name, location, and titles of works they wanted to print on a register. If a work was then approved for publication, the Crown granted the printer a “copye.” These rights were held by the printer Proprietor, not the creator of the work. The Proprietors now owned the works completely. There was no attempt to protect the rights of the work’s creator.

In 1557, the interests of the Crown (which wanted a ready instrument of control) coincided with those of the Stationers’ Company (fraternity of printing related craftsmen who wanted to protect their members and regulate competition). The Crown granted a charter which gave the Stationer’s Company a virtual monopoly. Thereafter, only those who were members of the Stationer’s Company might print matter for sale in the kingdom and small licensing fees could be charged.
Later in 1710, politics changed and in a plan to abolish the Stationer’s Company’s monopoly, the Statute of Queen Anne became the first law to formally recognize creators’ rights and at the same time recognize the financial interests of Proprietors, who were almost invariably printers/publishers, by granting them a 21 year extension to the existing copyright monopoly.

Copyright in the United States

As stated on the U.S. Library of Congress Web site (http://www.copyright.gov/): Copyright is a form of protection provided by the laws of the United States (title 17, U.S. Code) to the authors of “original works of authorship,” including literary, dramatic, musical, artistic, and certain other intellectual works. This protection is available to both published and unpublished works.
Section 106 of the 1976 Copyright Act generally gives the owner of copyright the exclusive right to do and to authorize others to do the following:
• Reproduce the work in copies or phonorecords (recordings)
• Prepare derivative works based upon the work
• Distribute copies or phonorecords (physical recordings of songs, tapes, CDs, etc.) of the work to the public by sale or other transfer of ownership, or by rental, lease, or lending
• Perform the work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works
• Perform the work publicly by means of a digital audio transmission (in the case of sound recordings)

Copyright in Canada
Canadian Copyright Act recognizes three main rights:
• Right to produce or copy the musical work (such as sheet music)
• Right to reproduce the musical work, including mechanical rights (tapes, CDs) and synchronization rights (such as videos, films, etc)
• Performing rights, which are the rights to perform a work in public (live concerts, a recording or other public performances) and the right to communicate to the public by telecommunication (broadcast)

Definitions:
ASCAP — American Society of Composers, Authors, and Publishers (www.ascap.com) started February 13, 1914, by the likes of Irving Berlin, Victor Herbert, Jerome Kern, James Weldon Johnson, and John Philip Sousa.

Barbershop Harmony Society (BHS) — (www.barbershop.org) The Society, in alliance with other a cappella organizations worldwide, is committed to enriching lives in every generation and community through the lifelong benefits of a cappella harmony singing.

BMI — Broadcast Music Inc. (www.bmi.com) formed in 1939 to represent writers, composers, and copyright holders.

CMRRA — Canadian Musical Reproduction Rights Agency (www.cmrra.ca) took over licensing of music in Canada starting in 1975. It distributes proceeds to publishers who then are to distribute the songwriter portion to the songwriter.

Copyright — The exclusive legal right to reproduce, publish, and sell the matter and form of a literary, musical, or artistic work. Today, most countries have their own copyright laws. No international copyright law currently exists that will protect a work in every country of the world.

Copyright Fees — Under copyright law, the owner may grant permission to reproduce, sell, publish, distribute, or perform the copyrighted material. The owner may charge a fee for that permission. A royalty or copyright fee is payment to the owner of the copyright. The definition of royalty also includes payments of a percentage of sales revenue paid to the author or copyright holder by a licensed publisher or distributor.

Copyright Holder/Proprietor — one who has the legal right or exclusive title to something; owner.

Fees & Licenses - As the copyright laws have expanded, organizations have formed to help “collect” royalties/fees on music. This chart gives a quick reference for details about each type of license:

United States

Canada

Registering a copyright	Library of Congress Copyright Office (fee)	Copyright Office, Canadian Intellectual Property Office (fee)
Performance Licenses (public performances)	ASCAP, BMI and SESAC	SOCAN
Mechanical Licenses (audio recordings)	Harry Fox Agency and others	CMRRA and others
Synchronization Licenses (videos)	Contact the publisher	CMRRA and others

Mechanical Licenses — A mechanical license grants the right to reproduce and distribute copyrighted musical compositions (songs), including uses on phonorecords (i.e. CDs, records, tapes, and certain digital configurations).

Public Domain — consists of any kind of inspired work, art or information, be it Public Domain music, Public Domain documents, Public Domain pictures, etc. It can be used by anybody for any purpose and it may be changed, rewritten, in fact you can do whatever you want with it.

Public Domain in Canada — Under Canadian law, a musical work is copyright if its author is still living, or if the author died less than 50 years ago. If more than 50 years have elapsed, the work is said to be “in the public domain.” An arrangement of a public domain work, however, is itself copyrighted for the life of the arranger plus 50 years. Occasionally we run across a song that’s public domain in the USA and still protected in Canada. Arrangers have to go ahead and clear it like any other song if there’s a chance it will be sung in Canada or by Canadians.

Public Domain in United States — In the USA, our founding fathers recognized that “knowledge” is intrinsically valuable to the public good, they wanted to minimize monopoly, foster learning, and increase the knowledge of the people. Under the Copyright Act of 1790, the initial duration (based on the average life span) of a copyright was set at 14 years with the possibility of a 14 year renewal if the author was still alive. After the copyright had expired, the work would fall into “public domain” (unprotected by copyright or patent, and subject to appropriation by anyone).
Over the years, the copyright duration has been legally extended. Currently, the 1986 rulings extended the duration of American copyright to the author’s life plus 75 years. Some would say that the term of copyright now approaches the perpetual copyright enjoyed by the Stationer’s Company in the 1500’s.

If a song was written before 1923, its copyright has expired and the song is considered to be public domain, property of the public at large. An arranger can, without anyone’s permission, create an arrangement of this public domain song and actually copyright the arrangement of the song.

Songs written in 1923 won’t become public domain until 2019. Therefore any song written in 1923, or since, is very likely to be copyright protected; any arrangement created of that song becomes property of the copyright holder.
Occasionally we run across a song that’s public domain in the USA and still protected in Canada. Arrangers have to go ahead and clear it like any other song if there’s a chance it will be sung in Canada or by Canadians.

Public Domain Lists (How to Find) — An internet search for “public domain music” will bring up websites with access to titles and in some cases, the sheet music, for music and songs that are now considered public domain. Some of the sites do have membership fees.
Performance License — Each time a song is performed in public, the songwriter is entitled to receive royalty income for that public performance. To eliminate the need to negotiate separate licenses, songwriters or their music publishers affiliate with performing rights societies.

SESAC — Society of European Stage Authors and Composers (www.sesac.com) riginally formed in 1930 to represent original European composers not adequately represented in the United States.
SOCAN — Society of Composers, Authors and Music Publishers of Canada (www.socan.ca) formed in 1990 as the result of a merger of Canadian societies (from 1925) representing Canadian composers, authors and music publishers.

Synchronization Licenses — Songwriters can authorize someone to use their song with visual images. The song is “synchronized” with the visual images. Synchronization fees are subject to negotiation and vary according to the popularity of the song and the importance of the song in the visual piece.

(Part 2 will be featured in the April issue of The Pitch Pipe and will present information on purchasing and protecting sheet music, performance licenses and recordings.)

 

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