Notes

Outline

Presents On Line Music and COPYRIGHT: Wave of the Future © 1999, 2000 Beverly R. Green, Law Offices of Green & Green All Rights Reserved www.entertainmentlegal.com

Copyright is a Complex body of law, constantly evolving to keep up with new technologies. Copyright Law has roots in English common law. To protect and promote writing and authorship About 550 years ago, Guttenberg’s press became the new hi tech of the day.  Suddenly, this made it possible for writings to be easily copied and mass distributed without author control.

Technology:15-25  yrs. Ago. - advent of Home Video In the “Beta max case” the U.S.  Supreme Court, like the recent RIAA case against Diamond Multimedia software and the Rio MP3 player: Court will not outlaw new technology, machines or formats (MP3) or home/personal use, BUT WILL STOP COPYRIGHT INFRINGERS/PIRACY.

U.S. Source of Copyright: Rights are in Art. 1 Sec. 1 of U.S. Constitution, “to promote progress of science and useful arts by securing for limited times to authors and inventors exclusive rights to their respective writings and discoveries...”  Copyright and patent laws developed separately from there.

1st U.S. Copyright Act was 200+ years ago recognized only writings 100 years ago-with what was then the new high tech invention of the day: PIANO ROLLS. In 1908 the U.S. Supreme Court (White Smith v. Apollo) held that there was no copyright protection for owners of music copyrights (“publishers”) for mass copying of music by piano roll manufacturers, as rolls could not be “read” and were not a “writing.”  (!)

In 1909 The Old Act - Congress saved the music industry by including: machine or “mechanical” copying rights the 1909 Act set up complex “compulsory statutory licensing” procedures to prevent absolute monopolies. These so-called “statutory rates” have also evolved & are used as industry standards (U.S. Maximums) for negotiated mechanical license royalties.

The next update of Copyright Act with MAJOR changes did not go into effect until 1978 The so-called “new” law although recent further changes, including: Digital Millenium Copyright Act Caution:  different terms & rules apply to works created before & after 1978 Rules in effect at the time the work was either created or when it was published may apply.

In the U.S. copyright extends ... to certain “original works of authorship, fixed in any tangible medium of expression, NOW OR HEREAFER DEVELOPED”

Protected works include, to name but a few literary works musical works, including accompanying words or lyrics dramatic works pictures, graphics, photography, sculpture motion pictures & audiovisual works,  and

Since 1972, sound recordings (but not “sound alike” recordings). (SR) ALSO, included are compilations of pre-existing works to the extent they constitute original works of authorship. Chips: The Maskwork Chip Protection Act. Software and Boat Hull designs.

Overlay that with what rights are protected: Copyright protects a  “bundle of rights”, including exclusive rights to 1) copy, or reproduce a copyrighted work in copies or phonorecords, AND 2) prepare Derivative works based on the copyrighted work, 3) to Distribute copies or records of the copyrighted work to the public, including by electronic delivery as MP3 and the new protected formats.

And for literary, musical, dramatic works & motion pictures, and some other works, but not including sound recordings: the right to publicly perform, and to publicly display, the copyrighted work

The exception of sound recordings from the so-called Performance right, was modified by Congress, again in deference to new technology... I.e. for the Internet, by the Digital Performance Right in Sound Recordings Act of 1995, and again in the Digital Millennium Copyright Act of 1998, to include certain complex new rights & limitations on those rights, including statutory licensing provisions, which are still being worked out as we speak: ASCAP, BMI, SESAC are to collect certain royalties Royalties payable for downloaded music and played online.

Also be aware of the Sonny Bono Copyright Extension Act of 1998 Also bringing U.S. law in compliance with International (World Intellectual Property Organization-WIPO) standards & treaties. The Act: Extended term of post 1978 works generally to life of the author + 70 years and Extended the pre-1978 works still in their “renewal term” by 20 years as well; but with a trade off of limiting music performance licensing rights by exempting certain small businesses from licensing.

With all this it is IMPORTANT to remember that there are 2 copyrights in recorded music: 1) the underlying  music, and 2) the sound recording, and for Copyright clearance, separate Works AND rights are to be considered in using music or film on the Internet--have to deal with representatives of owners of various and separate WORKS & RIGHTS for MUSIC and the PERFORMANCE.

Remember:…For performance rights in music—refer to music publishers performing rights societies, ASCAP or BMI...

…For the “mechanical” copying and distribution rights in music--licensed direct from the publishers or from the National Music Publ. Assoc’n “Harry Fox Agency” and ...

…For the SOUND                     RECORDING (separate Copyright-usually separate owner) go to the Record Companies... …and the  RIAA for the Performance Rights AND Copyright & Distribution Rights in the Sound Recording...

Litigation, ADR and Avoidance If you follow correct timing and the copyrights are registered prior to infringement, you may elect statutory DAMAGES for infringement. These can include Attorneys Fees and Money damages from $20 to 100,000 for willful infringement. PLUS  injunction/impounding Disputes might be prevented or limited if you act based on written agreements signed by all parties.

The Secure Digital Music Initiative and undoubtedly many more strategic alliances will start up to handle and deliver entertainment on the World Wide Web, Web TV and other future formats.

SDMI has resolved the immediate issue of whether and how to have secure delivery of digital music. Even the MP3 artists of today who may not be in the mainstream of the “big" record companies want to sell their music and not give it away. Protocols will prevent copying of protected works from listening devices to other media. To take effect over the 1999-2000 year term. Testing and research are ongoing. Licensing through ASCAP and BMI for music played online are easily available

AOL and Warner,  Go Network and Disney: A Trend The beginning of a trend to make a seamless Internet and Entertainment experience. Internet Presence will be more animated Bandwidth will be a controlling factor Entertainment Industry needs its Intellectual Property protected from copying and unauthorized uses. New I-Media will allow mainstream and new comers alike to publish to a wide audience world wide.

Licensing... License All internet music.  The artists get royalties from publishers. To publish their work without obtaining a Performing Rights Society license short changes the publishers. Remember: Music Over MP3 and other Fine Digital Formats: Are COPIES being sent via download. Need to be properly licensed- most mp3 sites, mp3.com, e-music.com, riffage.com etc. license mechanical Rights to music from HFA, Perf. Rts. Fr. ASCAP, & Sound Recordings direct from Artists or “indie”  labels-major labels will follow...

...and Branding Advertising music for sale or download on a web site can be a trademark use and “brand” Caution for violations of the owner of names, likenesses, and other elements. To Brand on the Internet you must USE the name or mark Prominently on the site.

Thank You. Please Visit www.entertainmentlegal.com for more. E-mail: bev@musiclawyer.com