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Tuesday, July 27, 2010

The Praise and The Music

I'm on my second to last week at my internship. Today my boss came out and told me and my co-intern that we are officially the best interns they have had, which was a very nice thing to hear.

We have been working on putting together a producer's guide to copyright law, which is no easy task. Copyright is a very complex area of law (actually, I'm not sure there is an easy area of law, but there are certainly some that are more complex than others, and I think Copyright is right up there). Not only have we had to teach ourselves the nitty gritty, but we have had to try to translate it into layman's terms so that the producers at the station will actually have a reference that they can use and understand. Our boss has looked at our drafts of the guide, and is very pleased with what we've come up with so far. So much of it will be so, so useful, she said.

This project belonged mostly to my co-intern; she's been working on writing the guide all summer, while I've spent a lot of time researching other projects, like public records disclosure requirements and exemptions, the intersection of intellectual property and bankruptcy law, and music licensing law.  It was this last bit that got me involved in participating in the copyright guide project, since music licensing is a subset of copyright law.

But when I had initially researched music licensing, it was for the purpose of drafting a new music license template for the station to use when it invites bands into the studio to perform for a show. So my research was rather superficial, and was mostly geared toward drafting a nice contract. I had only a surface knowledge of music licensing that would not have been adequate for me to prepare a music licensing guide.

So I've spent most of the past two or three weeks reading in more detail about music licensing, and mostly running around in tiring circles trying to decipher everything. Believe me when I tell you that music licensing is the most complex legal stuff I have ever tried to understand. Finally, however, after allowing what I was reading to marinate in my brain, and after taking copious notes and drawing diagrams, things started to fall into place in my head. I've finally been able to draft what I think is a pretty damn good layman's guide to music licensing. I also created an awesome chart that visually illustrates the relationships between the types of uses you might want to make of copyrighted music and the corresponding rights that you would need to license for those uses.

You would think it would be simple, right? There's a song, it has a copyright, you want to license it, you draw up an agreement to that effect, and bada-bing bada-boom, you are on your artistic little way.

Not so.

(I feel obliged to say at this point that everything that follows is not legal advice. I am not licensed to give legal advice, and legal advice is not what this is. Get a lawyer for your music licensing needs. Or come see me in two years.)

First off, there are two types of copyright for every song. There's the Musical Composition copyright, which you could think of as the song itself -- the melodies, rhythms, and lyrics as you might see written on a page. Then there's the Sound Recording copyright, which is, obviously enough, the recorded sound of a Musical Composition.  It's also fair to note that there can be several different Sound Recordings for a single Musical Composition, all of which may be owned by different people, and which even may be created by several different artists.

To make matters more complex, these two copyrights are frequently owned by different entities. Once the Musical Composition is fixed in a tangible medium (i.e., written down or recorded), that copyright immediately vests in the Songwriter(s) (including composers and lyricists, who all equally share the copyright). However, most of the time Songwriters assign this copyright to a Music Publishing Company in exchange for a royalty agreement (usually 50/50). So if you need to license a Musical Composition, you can look to the Music Publisher.

However, nota bene, sometimes, depending on what you are intending to do with the Musical Composition, you actually need to go to yet a different entity to license the intended right. For instance, if what you are looking to do is publicly perform the Musical Composition -- say you are a touring band, and you want to cover someone else's song on your tour -- you will need to seek a Public Performance Rights license, which may be obtained from a Performance Rights Organizations (PROs). There are three PROs in America: ASCAP, BMI, and SESAC, and their catalogs are exclusive of one another.  Of all the possible uses you might want for a Musical Composition, public performance rights are all these guys can give you (and non-dramatic public performance rights, at that; I won't go into the difference between dramatic and non-dramatic performances, because that's yet another tangent on this already tangential discussion).

There are a few other rights in Musical Compositions where you can seek clearance from someone other than the Music Publisher, and sometimes there are compulsory statutory licensing regimes, where all you have to do is send the copyright owner notice that you are using their song, plus pay them royalties, and whether or not they are willing to grant you permission is of no consequence.

But now we turn again to the Sound Recording copyright. While the artists who record their song might own the copyright in the Sound Recording, most of the time, as a result of a recording agreement, the copyright will actually belong to the Record Label or Record Company that produces the recording.

The good news is that there are only two main types of licenses for a Sound Recording: the Public Performance via Digital Audio Transmission license, and the Master Use license. The PPvDAT is only necessary when you are publicly performing a Sound Recording via the Internet. So streaming music and internet radio falls into this category, for instance. The Master Use license covers any other type of use you might need for a Sound Recording. There is also a sub-category of a Master Use license that is called a Sampling license, and you only need that if you are taking part of someone else's Sound Recording and making your own Sound Recording with it.

The bad news is that licensing Sound Recordings can be very expensive, because Record Labels are not in the business of licensing music; they are in the business of selling records. So unless your intended use is looking lucrative to them, they will bend you over with the license fee. And maybe they will bend you over especially if it is looking lucrative, who knows? They have the upper hand.

Ah, but there's yet another piece of good news: You can make your own Sound Recording of a Musical Composition and bypass the need to license a Record Label's Sound Recording. All you have to do in this case is license the underlying Musical Composition. (For that matter, every time you license a Sound Recording, you need to license the Musical Composition too, because the Musical Composition is the skeleton to the Sound Recording's flesh. Can't get skin without bone.)

You can, however, just get bone, by making your own recording. There is a statutory license in the Copyright Act (17 USC § 115, to be exact) that allows you to obtain a Mechanical license for any Musical Composition that has already been commercially distributed. This allows you to make and distribute your own recording of a song for a statutory fee, which is pretty modest.

So, there you go. That is by no means the whole story of music licensing, but it is a glimpse at how convoluted it all is.

And again, that was not legal advice. Really. Get a lawyer.

Unraveling all that stuff (as well as it can be unraveled by a rising 2L law student), makes me feel pretty good. And, of course, the praise makes me feel even better. I think this has been a summer well spent.

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Thursday, July 1, 2010

Independence Day

Happy independence day to my marine friend J.C.P., who just retired from the military today. J, if you're reading this, I tried to send you an email, but it bounced back to me twice. Drop me a message when you get a chance.

Prost, Freund!

Sra


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