Copyright, Sampling and Collection

Copyright exists in any original musical composition or lyrics created which is set down in some permanent form’

Permanent form may be writing, musical notation, a sound recording or some other means whereby it can be reproduced.

For originality to exist, there has to be some skill or creativity used in the works or musical notes which makes the song a product of the composer’s own mind.

Copyright

Legislation

Copyright, Designs and Patents Act 1988

http://www.copyrightservice.co.uk/copyright/uk_law_summary

There are two copyrights in a recorded piece of music:One copyright in the song itself, generally owned by

a music publisher or the original songwriter, with revenue generally coming from PRS, MCPS and ‘Synch’ fees.

One copyright in the master sound recording, generally owned by the record company that the artist is signed to, with income coming from music sales, again ‘Synch’ fees, but also from PPL.

Copyrights in Music

How to copyright a piece of music Deposit a copy with your solicitor or

bank manager and obtain a dated receipt.

Send a copy of the work to yourself by registered post, leaving the envelope unopened upon receipt.

Take a copy of the work to a notary public and swear that it was their own, originally created work.

Under the restricted rights of the CDPA, no-one other than the copyright owner is allowed to:Copy the workIssue copies of the workRent or lend the work to the publicPerform, show or play the work in publicCommunicate the work in publicTo make an adaption of the work

The Collection Societies give permission, on behalf of their members, for the above to take place.

Copyright Infringement

Challenging Copyright Infringement

Copyright infringement cases are a matter for the high courts.

However if you feel that infringement of your copyright exists because of a dispute with a licensing company or a collection society etc, then you can seek advice from the Copyright Tribunal.http://www.ipo.gov.uk/ctribunal.htm

Remedies to Copyright Infringement

Should courts decide copyright has been infringed, there are a number of possible remedies:Grant an injunction to stop further

useAward copyright owner damagesMake infringing party give up the

related goods – sound recordings, close down websites etc.

Copyright in a Sound Recording expires 70 years after the recording was released.

Copyright in a literary, dramatic, musical or artistic works (for example, a song) expires 70 years after the writer’s death.Upon the writer’s death, copyright will be

inherited by whoever the author has granted the rights to for the period up to 70 years after the author’s death.

Transferring copyright in a will is called disposition.

Lifespan of Copyright

Note that there are occasions when the author of a copyright may not necessarily be the owner of that copyright. For example:Assignment of copyright – when you have

sold your copyright to someone else (ie to a music publisher)

When a piece of intellectual property has been ‘created’ during employed time. In this case, it is owned by employer, unless agreed otherwise.

When the intellectual property has been funded by another, for example a record company in the case of a sound recording.

Rights and Ownership

Within the copyright of a musical work the author (the person who creates the work) has 2 sets of rights:

The Economic Right – the creator has the right to financially benefit from the work

The Moral Right – the creator has the right to be identified at all times as the author of the work (regardless of how many times the copyright is bought or sold) and to prevent it from being distorted or mutilated, this is sometimes known as the integrity right. The creator also has the right to ensure no one else is claiming authorship of their work. This is known as false attribution. An author can choose not to use moral rights. If this is the case, it is called waiving, and sometimes has to be done as deal breaker to a Music Publishing deal.

Rights and Ownership

There’s two possible ways of handing over a piece of work to a third party

Assigning

Licensing.

Assigning and Licensing

Assigning Assigning is essentially selling the

copyright to a third party. The copyright could be sold in whole or in part, in perpetuity or for a limited period. There can also be an agreement for all future works to be assigned to the third party as well, which negates any need for constant new agreements. All assignments must be signed over in writing by the copyright owner.

Licensing

Whereas assigning is selling, Licensing is more like renting, giving people permission to use the copyright according to the terms and conditions of the licence contract. License agreements must be signed in writing by the copyright owner.

Collection societies The societies either take an assignment of

certain rights from their members or they have a licence to act as agents for them

They have reciprocal arrangements with other societies to protect their members world wide

The advantage is greater bargaining power you have by being a member of a large organisation that may get better rates than you could get yourself

PRS

Who are the PRS and what do they do?Royalty collection society, whose members

are songwriters and music publishers, who collect when their members’ songs have been performed in public.

Who requires a PRS licence?Anyone who performs music in public as

part of their business – shops, doctors, dentists, pubs, clubs, venues etc.

PRS - http://www.prsformusic.com

How PRS divide out the royalties

Digital playlists on Radio and TV are very simple to work out who gets paid and how much.

Small pubs / clubs etc however cannot monitor what gets played in their places so they pay a blanket licence to use music.

PRS then have to predict how this money should be divided between their members.

To help with this, PRS often sample small businesses to see what kind of music they play.

MCPS When a songwriter’s song is ‘copied’ MCPS

calculate a royalty for that copy, collect it and then distribute it to their members (writers and publishers)

Examples of a song being copied include a record company pressing copies of a master copy to sell to the public.

http://www.prsformusic.com/creators/memberresources/MCPSroyalties/Pages/MCPS.aspx

The PPL

The record industry’s licensing body For broadcast & performance of sound

recordings Collects monies for record companies,

performers & producers http://www.ppluk.com/

Sampling & Plagiarism

Plagiarism is taking someone else's work and passing it off as your own.

To be guilty of plagiarism someone has to show that you had access to their work and this is not simply a coincidence that is sounds like their work

Sampling is always a deliberate act! Sampling is deliberately taking

someone's work and then, possibly after manipulating it include it in your own track

If you make a copy of a sound recording or if you get someone to replay a piece of music either way you are sampling. 1. The sound recording

2. The music and/or literary copyright

How much is a sample?

The 1988 CDPA says there has to be a ‘substantial part’ copied

In The Beloved case ‘The Sun Rising’ it was 8 seconds

The Macarena case – a small vocal sound looped was settled out of court (Produce Records Ltd vs BMG)

When should you seek permission?

Before you record the sample / song But tracking down owners, waiting for

them to get back to you and the need to record a demo version to see if it works means this is very difficult.

In practice it usually happens after the recording has been made

How do you clear a sample? If you have sampled the sound

recording you need to seek permission from the owner. So if it says on the CD ©Sony Music 2013 you should start there.

You need not do this yourself - your lawyer or record company may do this.

What happens if you clear words and music but not the recording?

You could have it replayed or recreated identically so that you have not sampled the original recording and need only clear music and words.

You may need independent evidence that you have done this from maybe a sound engineer or musicologist

Once you have agreement in principle you can start to negotiate the terms.

Remember as well as having to negotiate the sound recording you may well have to clear the use of the underlying music and words

This could be with the songwriter but usually will be their publishing company

How much does it cost?

Negotiable but; Record companies will usually clear a

recording for an upfront sum with a further sum on sales achieved. For example, £1,550 upfront then £1,500 when you have sold 10,000 copies

This cost usually comes out of the artist’s (that has used the sample) royalty

How much does it cost?

Publishers of sampled works may do the same, however, it is more likely they will want a percentage of the publishing income of the track.

They will probably insist on a co-write credit for their songwriter/s

Cases of 50% or more have been claimed even for a relatively small sample.

What happens if I don’t clear a sample? The record company will suspend

payments on the recording and may take legal action against:

The artist (if the contract says they must clear all samples on the masters)

The producer (who is most likely tasked with this role – as laid out in the producer agreement)

Either way distribution of the recording will be put on hold until this is resolved