COPYRIGHT!!!!! YOU NEED IT! NOW!
"you stole my song!!"
by Billy Tweedie
How songs and music are Copyrighted is the same process that allows
composers and songwriters to earn money from their work. This article (I
hope) should help explain some of the background to this complex mix of
law, of accepted practices and the odd exceptional case that gives
wealthy Record Companies or performers coverage in the music press.
Copyright
At first, it all seems very simple - The Copyright, Designs & Patents
Act of 1988 gives the creator of an "original literary, dramatic,
artistic or musical work" the automatic rights to that work, without
any formal registration of their work. These rights are often
called "intellectual property" rights, and like other kinds of
property, they can be sold, licensed or given away - or they can
be hidden away where no-one else can get them.
This automatic copyright begins at the moment the work is recorded in
some form (written down or in a sound recording).
Copyright to "performance art" begins when it is
recorded on video or is described in writing. So there's no
Registration forms, no fees, nothing more to do than writing down your song.
Sounds simple enough, doesn't it?
The complications arise in several areas:-
- control of your Rights - worldwide.
- being able to prove that your copyright material is yours in case of
plagiarism;
- avoiding the trap of confusing a recording of your music made to
prove your work (the songwriter & musicians' intellectual property)
with the recording of a piece of music by a creative sound engineer
(the sound recordist's intellectual property);
- the rights to use a particular Name for your band;
- the mystery of what happens to the rights to a bands' material
after the band have split up or changed line-up, and
- just what is it that you are copyrighting?
It will always be worth taking advice from a specialist lawyer in
either the Music Industry or in Intellectual Property. You may
need to find specialists. ( I AM NOT A SPECIALIST ~ however I have
had dealings with all of the following in the past, since I was ten
years old!) Advice from Specialists will depend on the answers to
several questions about the particular activities a composer or
performer is likely to be getting involved in, what sort of money
might be involved in these activities, what your role
is in the music project and how serious the risk of copying may be.
There is a big difference between the advice given to someone who
wants to sell or licence their automatic rights to people who'll broadcast,
copy and perform it as much as possible to maximise the fees they
receive and someone who wants to keep all rights to their work to
themselves.
Many songwriters are, reasonably, proud of their work, and would want to
protect it from being copied, even if it is called flattery. However, we
should all be realistic. The chance that someone will want to steal our
ideas is not so very great, and unless the material does become widely
distributed and broadcast, in which case our rights should be protected
by contracts with a publisher and the Collection Societies (see below),
then the need to protect our "intellectual property" may not justify
any great expense. Some of the precautions in this article can be
taken without employing professional help, and should cover the most
basic needs of most songwriters and composers.
To help a lawyer advise on your rights to your music, you will ideally
have kept as much written detail about your work as possible -
when it was originally created and written down, who has been involved in
creating it, precisely who participated in the writing of a
song, maybe even stating what percentage of the work was done by each
participant and all the agreements you've made, verbally or in writing.
You should have a list of where copies of your work have been
sent and when, and what was written on those copies.
You should also have carefully documented notes of the work itself, the
lyrics, the music, perhaps the structure of the song, where it
was recorded, when and by whom, who was present at the recording,
where the original copies of that recording are kept and what
did the agreement with a studio say about ownership of the Master
tapes.
The Law: British, European & US Law are mentioned below.
But to explain the general principles, lets just go back to the
Copyright, Designs & Patents Act 1998 and what it automatically
offers you as the creator of an original work.
It restricts five activities exclusively to you, the creator of the
work:-
Copying the work
Issuing copies of the work to the public
Performing the work in public
Broadcasting the work
(or including it in a cable programme service)
Making an adaptation of the work
(including a translation of the work)
These are "economic rights" which automatically belong to the original
creator of the work, and only to the creator, but the Act also
gives the owner of these rights the authority to permit others to
do any of these five restricted activities. If a creative
person does sell, give, licence or otherwise assign one or more of
their rights, then the right completely passes to that other person.
But the creator also has "moral rights", and these will remain with
the creator, even if they have transferred all five of their
"economic rights" to others (unless they also agree to waive their
moral rights!). By assigning a right to someone, you are
giving them the benefits of the right, usually for a specific length of
time, but you keep the actual legal rights yourself. In fact a creative
person will usually want to make money from selling, assigning or
licensing these rights to someone else. For example, a
songwriter may specifically authorise a music publisher
to, well, what do you think, to publish it, or to a radio producer to
broadcast a performance, whether it is for a fee or not.
Collecting those fees are another matter, and
that's where the Collection Societies (MCPS etc.) come in to the
picture, they specifically exist to collect the fees due
from these rights once you've authorised them to
do so. But before you get too far, you're likely to come up against the
important legal requirement for proof of ownership. It will be easier for the
Collection Societies to show ownership, because you will have given
them written authorisation, but how can you, the original creator of a
song or tune prove that the work is yours if challenged by someone
else or if you wish to prevent someone from using your music as if it
was their own? As for the "moral rights" which would remain yours,
they allow the original author to continue to claim that they were
the author, and to be credited as such. These moral
rights also allow you to object to others abusing your work, or
instances of others falsely claiming a work was yours which in fact
was created by someone else. Some Contracts with a publisher or a record
company may ask you waive even those moral rights, but your lawyer
would then argue that the contract should have clauses giving
you the important parts of these rights back, the right to be credited
and to object to others abusing your lyrics, for example. If a
publisher or record company thinks it can earn from your material,
then it should also be willing to defend the rights to it for a
specified period of time, even if its first concern is to defend its
own ability to make a profit out of the asset you assign to it.
When negotiating a contract, particularly when you are at an early
stage in your career, you should always use the services of a
professional who will not only know what the issues are to negotiate,
but also have some experience of how far to push the other
negotiator without losing the deal. If you attempt to hold on to your
economic and moral rights, you may find that the other party looses
interest in what you have to offer. You should discuss with your lawyer
just how far you are willing to go to protect your rights
and how much you are prepared to give.
All of the above refers to your creative work - but just what is that
work? Is it a tune, is it lyrics, is it a recording? Each of these three are
separate copyright works, and someone owns that copyright - you,
if you are the creator, or you and others, if you are in a band who
wrote the music and songs collectively. If the song was,
say, a collaboration of two of you (40% by you and 60% by
one of the other band members), and the music was a collaboration of
three of you (50%, 25% and 25%) with a fourth member contributing
none of the creative effort, then these proportions are what you
should agree in writing amongst yourselves and, if and when you
register with the Collection Societies, these are the proportions
of the royalties each of you will receive (if there are to be any
royalties, that is). There is probably nothing more important in
copyright disputes as knowing just who owns how much of
each aspect of the work - hopefully, if you'd written everything
down very clearly when you wrote and recorded the
songs, then you won't have any of these disagreements, later.
Will you?
Nothing in this world lasts forever, and that includes your Copyright.
The Act gives you those automatic rights for 50 years after your death,
(70 in the UK!) and if you don't think that's going to be long enough
to earn your living out of your efforts, then our suggestion to
you might be cryogenic deep-freezing rather than legal advice!
In the case of collaboratively created work, the 50/70 years doesn't
start until the last of the collaborators dies.
On the other side of this time limit though, is the knowledge that
other people's works written in the 1900's will now be out of copyright,
and unless there's been a more recent publication of that work which
will have its own 50/70 year limit, then you should find it
easier to use that work without paying a fee. But check first !
Somebody might have the rights to a more recent publication.
Prove it!
The law is very clear about the requirements for "admissible evidence",
and there is no point in trying to claim that a work is yours unless
you can provide evidence that a Court will accept. There are five well
established types of evidence whichwould show that a musical idea
was first yours, and you should choose the one that is
most suitable for your work and your realistic expectation of
why you might need to provide evidence. The first option is a reliable
witness with documentary evidence. If you can have a
written copy of the lyrics and music signed and dated on each page by a
Lawyer, Bank Manager or other Public Service professional then
they can be asked to appear in Court and testify that their
signature and date are correct and that they know you and that
they believe you created the original work which is on the documents.
Most professionals will charge a small Fee for such a signature, and a
larger Fee for a Court appearance, though the Court should accept
a written statement from them if there's no dispute over
the facts in the statement. If you had written lyrics and musical
notation, then the testimony of your witness is vital, but if it is
your tune that someone has copied, and you hadn't written the
musical notation, then your witness might be questioned about
their abilities in recognising music!
Then, there's the famous "self addressed envelope" method. I have done
this several times since I was ten years old! You can send a copy of
your work (a written manuscript or tape /CDr with details of who wrote
the words/music, where and when) by Special Delivery /Registered Mail to
yourself. When sending the package, you should sign the envelope across
the seal, and insist that the Post Office clerk stamps their date stamp
clearly across the seal as well as on the receipt. They are there to
serve you, remember that!
When the envelope arrives, keep it and the receipt somewhere safe,
unopened, with a note reminding you of what is in the envelope.
For added security your Bank will keep a small box of your personal
valuables in their safe for about $40 a year - you could keep
quite a catalogue of music and lyrics safe this way. Courts will accept
the Post Office's stamp as adequate proof of the date, which
might then show that someone else using your music or words
did so after you, and therefore has "stolen" your intellectual
property. This is such a simple and popular method of providing
evidence that it is probably worth doing for all your work
even if you also choose one of the other methods.
Or, you can ask a Lawyer to help you make a Statutory Declaration which
is your written statement that the work was originally created by you on a
particular date etc. This will be accepted as evidence of the date
of your claim, if you need to show that you had the idea first, but it
might not help to convince the Court that the copy is actually
based on your original work, and could lead to an argument about
whether two pieces of music are similar or not.
The last option which is particularly popular with inventors of ideas
that they feel sure will be ripped off, is, ironically, to keep it safe
by publishing it! There is a particularly obscure magazine printed in
the North West (USA) which publishes original ideas, but which is read
by so few people that the idea doesn't catch on. In fact inventors, who
Patent their ideas rather than copyright them, will know that
publication is a requirement of the Patenting system. In the event that
the originality of a creator's ideas or words have to be argued
in Court, then a copy of the magazine is produced, which will clearly
show the date of original publication and name of its creator.
If someone does copy your work, then evidence of this kind should prove
that the idea was yours first, but you will still have another hurdle to
cross. You will still have the responsibility of proving that the other
person had the opportunity to hear (or read) your work. If the person
claiming that their work was copied can't agree how the other
person could have had access to the work, then they'll have trouble
persuading anyone that their work was copied. There are only a
few musical notes to choose from, so it is reasonable to assume that
quite a few tunes written completely independently will have
something in common. Suppose your only copy of a song was
hidden away, perhaps in that self-addressed sealed Jiffy
padded envelope - bag. Its not likely, then, that someone else will
have had the chance to hear it, so your claim that your copyright
was violated will fail. That is one reason why some people like to
publish their work as a means of providing evidence - it makes it
easy to show that the plagiarist would at least have had the
chance to copy your work.
When disputes are settled "out of Court", it is usually because the
party that coughs up has acknowledged that the evidence
against them is impressive,irrespective of who really
had the idea first, so never underestimate the value
of your evidence! On the other hand, if your evidence is poor,
or the other party in the case simply doesn't believe you,
then the hearing can become very expensive, perhaps calling on the
opinion of a specialist musicologist who will analyse the music
which you and the other party have produced, and point out
where the similarities lie and which parts might have been
copied.
Defending your rights may not be worth the expense of a legal dispute,
but it probably is worth accumulating evidence as your creative career
progresses. Your lawyer will probably advise you that their role is
to minimise the chance of having to fight in the Courts by having the
right evidence from the outset, rather than to help you
once you've got into a dispute. Some disputes over sampling without
permission can be long and expensive in Court time, and the outcome
may not be financially worth enough to cover your costs.
Remember that the "Verve" band lost ALL their income from their 1998
song "Bittersweet Symphony" because they hadn't permission to use a
sample - permission that probably would have been given, if only they'd
asked! That is VERY DUMB!!!!! I notice the track on countless CD
compilations since the song was released! (I was once a DJ...in a
Pittsburgh Dance Club....so still obtain the odd 20 -25 CDs! Just in
case the urge comes back!)
It's one thing being able to win a dispute in Court - its another to
make money from your creative ideas, and that is often best left
to people that make their own living out of using those five "restrictions"
in the 1988 Copyright Act. If you give a licence to a music
publisher or record company to try to maximise the income from your
work for a period of time, then you should expect them to want
a detailed written contract with you which enables them to fight any
legal battles over your rights (though they might not bother if
it isn't likely to be profitable). They will expect you to make a
declaration that your work is, in fact, your own original work.
They will also specify which territories (ie which groups
of countries) they want to use your material in, and they
may leave you with the rights to some territories where you can
still try to make money from your work by other means.
Within Europe, there is a Directive (Directive 93/98/EEC) passed by the
European Commission which standardises the rights of intellectual property
across the EU. These Directives have legal authority, but surprisingly,
one of the EU countries seems to have had a problem in adopting
the Directive. That's the UK. Nevertheless, if you and your
work are registered with the collection societies, then your
fees from performances, from broadcasting, from record sales
and other authorised copying etc. will still be collected
for you, just remember to keep them informed of your changes of
address!
The law here in the USA is different than Europe - the relevant law is
the Copyright Statute of 1976 and now augmented by the Digital Copyright
Millennium Act which tries to cover more digital issues.
REMEMBER: US Copyright lasts for 50 years after the creator's death,
not 70, as in the UK. I am not going into that here, but we should never
ignore the risk of someone exploiting work : ANYWHERE - as there is actually a
lot of illicit copying of CDs in all parts of the world and it is often USA/UK
musicians and their Record Companies who are the losers.
What next?
Once you have registered with the Mechanical Copyright Protection
Society (MCPS), or the PRS, they can collect your song's royalties for
you. (Contact numbers are at the end). Copyright organisations also
publish very informative guidelines in booklets and on their web
sites which covers their services and some of the special cases and
exceptions to their scope. They work closely with each other,
sharing some of the same staff and having a common administrative HQ,
but it is important to recognise theirdifferences:- PRS will collect
royalties due from the performance or broadcast of a published song,
MCPS will collect royalties from the use of a sound recording to make
copies, whether vinyl pressings, tape duplication or CDs. These
copies would incur royalties for you if they were used for music in
film and video, computer games, karaoke, and countless
others. As an example, suppose you play your music in a radio studio,
for broadcasting at a later time - MCPS should be collecting your
fee for the copy made when you record the song, and PRS
should collect your fee when it's transmitted, including later fees for
any repeats of the broadcast. There will usually be more royalties to
be earnt from songwriting than composing music, so the
arrangement with PRS must be very clear about who wrote the lyrics.
If you are lucky enough to have your music used in a film or
TV programme, then "synchronisation rights" will apply, allowing you to
earn from the use of your music during the making of the film or video.
Yet more royalties will be collected for you whenever the film or video
is shown or broadcast.
SPECIAL CASES
Internet
There are complex issues relating to internet distribution of your
music on account of the international scope of the net, and some
changes are being proposed in some countries. The difficulties are both
legal and practical, but the current position is that the normal copyright
rules of each country apply within each country, separately. If someone
on the other side of the world is letting people hear your tunes
without your approvals, you can go and stop them in that country,
under whatever copyright laws they have - if you can find them.
There are alleged to be over 25,000 web-sites offering music, often at
excellent technical quality, which don't pay a fee to the copyright owners.
These include web radio stations which often transmit entire albums.
Even USA stations which transmit simultaneously
on-air and via the web will be paying fees based on the size of their
agreed radio audience - which will not include the potential
global audience of their web listeners. Just because the internet is so
uncontrollable doesn't mean that you have to have an
uncontrollable agreement with your local internet music service - your
agreement should be just as carefully thought out as you would
do for broadcasting and publishing in any other medium. Why give
away all your rights, even just all your digital rights, to a site
that can give you good exposure without being sure that you'll be
properly repaid if things do take off for you? Two US sites have
managed to "break" a band into the mainstream from their web-site
and others hope to do the same. Obviously. That's the
big pay off they're waiting for. So if its worth the gamble for the
label, make sure its also going to be similarly profitable for you.
There'd be no point in crying at the label afterwards saying "its not fair"!
Internet distribution seems like a great idea to get yourself exposure,
but if it works, and you've become a well-known name, can you still let
people download copies of your tunes for free, and if you can't stop it,
where's the money going to come from?
Sampling
Particular arrangements apply to approvals to use samples of other
peoples' music. MCPS have a sample clearing department which
helps to identify the true copyright owner and to request their permission.
If you have followed the article so far, you won't be surprised to learn
that there is a difference between asking the original composer for the
right to sample their music, and asking a record company for permission
to copy and use one of their recordings. If you are sampling both,
you need to ask for two permissions. If you are also sampling someone's lyrics,
then that will be three permissions! The permission to use lyrics will
generally have to be given by the publisher of the lyrics, whose name
should be found on the label of the CD or wherever else you found the
lyrics. Fortunately, many copyright owners whose material you might
want to sample are willing to agree, occasionally without even
making a charge! But just think where Stardust would be if they hadn't
got permission to use that Chaka Khan guitar sample
on "Music Sounds Better with you"?
Theaters & Churches
Songs recordings and music used for performances in theatres and for
other dramatic uses are subject to different regulations and collection methods.
Another particular exclusion applies to music and lyrics used in places of
worship, though there are even exceptions to the exception, and once again,
specialist advice should be sought before either trying to collect royalties
from works played in churches or before trying to play other people's
work without proper acknowledgements. There was a recent case in
which a church was made to pay for material they had been using even though
they understood that they were exempt from paying royalties.
A "Concept" album.
Now what if you are lucky enough to be given a Contract for writing a
theme tune and related snatches of music or for a "concept" album
where a particular tune appears several times in many forms? If you
sell your rights to these themes, could you then write something similar,
such as the next part of the series, and still own the Copyright
to the new work, or would you already have sold the rights to the whole
series? This can get quite complicated, and you could find that
you have already assigned your right to a work that you haven't even
written yet if it "repeats or imitates the 'main design' of the
earlier work". Generally, if you sell or licence your copyright to a
themed work, you will only be able to keep the rights to a new
work similar to the series, if it doesn't imitate the earlier work.
Review copies
Although it is often said that short extracts of copyright work may be
used without payment, usually allowing reviewers to quote from a work
when it first appears, this is actually just a habit and is not strictly
a legal provision. Your permission for extracts for review should still
be sought, though you'll probably rather have the free publicity, won't
you? Most magazine or radio reviewers won't want to pay you for the
right to quote from your work, they'll just find something else to review.
The phrase "fair use" is used in the U.S. Act to allow certain uses
which are exempt from the four Copyright exclusions. These are very
difficult to generalise and different publshers have different
policies towards permissions to use extracts, but are intended to cover
criticism, comment, news reporting, teaching, scholarship and research.
The scope of these exceptions will depend on the nature of the work as
well as the use to which it is put and the mood of the publisher
(or so it seems!).
-see http://www.iaspm.net/rpm/CopyRi_1.html for comments on the use
of extracts.
Translations.
Specific inclusions in the legal protection of the 1988 Act is that a
translation of your words into another language remains your work
and your "intellectual property". But if you do ask someone else to
translate it for you, and they translate it creatively, such as
trying to make new rhymes in the other language, then they too will
have a claim to ownership. They could sell their rights to you in a
simple written contract, just as you can sell your rights to your work.
Such a contract will firstly state that the translation is
an original work by the translator, based on your original, and that
they sell those rights to you for an agreed fee.
Its mine! No its not, its mine!
When you make a recording of your music in a studio, you might think
you're creating evidence which proves that the work is yours.
But what about the rights of the person making the recording?
The ownership of the sound recording lies with "the person who
facilitates the recording" whether it is on cassette, CD, hard disk,
video or film soundtrack. That person might be the studio owner,
a producer or manager who paid for the studio time or it may be
the sound engineer. A separate agreement may have to be
made with each of these people before you have the
rights to any of the five "restrictions" of the Copyright,
Designs and Patents Act.
Usually, these people will give you a buy-out of their rights where
they sell those rights to their work for an agreed fee, but you
should not assume that they will want to do that - some creative
producers might devise a "sound" or particular musical or lyrical
concept and expect to keep their rights to receive a royalty
from every future use of their recording. This can be particularly
true in recordings made for film or TV where producers can make
their living from repeat broadcasts or screenings. In fact, the Union
representing many technicians, BECTU, is just as active in recovering
unpaid fees for its technicians as the Musicians Union is in
recovering fees for musicians, so you should always check
carefully just who has rights to what, and who is willing
to give, sell or licence their rights. It is always going to be
wiser to get a simple written statement of what rights you
are buying, and which you are not, when you have a recording made.
Although the law is intended to help you earn money from
your creative work, it will also help others to collect and
keep any income they earn if they don't know of your
ownership. For this reason, you should always let people know who and
where you are, and what rights you are claiming. The Courts
will not normally make an award of damages for
"secondary infringement" (sometimes called "innocent infringement")
which is where someone performed or copied your work
(or any of the five "restricted" acts) without knowing that it
was your intellectual property. A good avoidance technique
would be to write the international copyright symbol on, say,
all your demo cassettes, adding your name, address and date,
although admittedly most musicians don't bother
with this simple precaution. Include the © copyright symbol (the letter
C inside a circle), followed by the year and your name. One day
you might find that the recording studio or engineer has put
their name on the label first! Note that the label must make it clear
what the copyright applies to - a copyright symbol on a label applies
to the label's words and/or artwork, unless the wording makes it
clear - something like: copyright in the words and music on this
recording is owned by Spot the Dog © 2003. Of course
there's nothing wrong with copyrighting your artwork too! A similar
symbol, a P in a circle, indicates the date of publication of a sound
recording, and this could also be included for completeness.
Now the copyright symbol doesn't give you any rights or legal
protection, but what it does do is inform others that you have
claimed ownership of the material, and that should avoid the
risk of a plagiarist being let off because their offence is merely
"secondary infringement".
When you meet with someone who agrees to use your work, or
even if you agree it on the phone, there is always the risk that
they will have a different recollection of what was
said (funny how some people seem to remember the version
that suits them best). Follow up those informal agreements with
a letter explaining what you remember was agreed in the meeting,
including all the conditions, timescales and the fees. If they
disagree, then you will still have the opportunity to re-negotiate
before giving them the benefit of your creativity. But if they
simply don't respond to your written account of the agreement, then it
can be assumed by an arbitrator that they were aware of your version
and by not disagreeing when you offered them the chance, they let your
letter become the contract.
There's another legal process which can be used to prevent someone from
using your work (or prevent them from using your name) though it could
also be used by someone else to stop you. Its called an Injunction,
and it is something that you can get from the
Court as a last resort. You would probably be better off using the
experience of a lawyer but it is possible to get one yourself. You can
actually go to a Court, fill out an application to see a Judge, pay a
small fee, and explain to the Judge that your property
is being, or about to be used by someone without your permission, and
if you can provide some solid evidence, you might walk away with an
Injunction. If you deliver that Injunction to the person using your
intellectual property, they must stop that use immediately or expect
to be summonsed to Court to explain why they defied the Judge's order!
The Clerk to the Court can help you in filling out the form, but the
costs can be high if you claim that the financial loss to yourself
(the damages) is high, and there do have to be damages or
imminent damages, otherwise you're not suffering any loss! If you
are awarded an Injunction ordering someone to stop using your
work, your name or whatever, but if they carry on regardless,
you may wish to bring them to Court to be fined for disobeying the
Court's order. Unfortunately, the cost of bringing them to Court
will be yours. This is a technique for use in an emergency, and you
might only be postponing a bigger and more expensive legal dispute!
Got a job?
Some Contracts of Employment refer to intellectual property - often to
safeguard the company's ideas from being exploited by employees and
competitors, but sometimes to maximise what the Company gets out of
its employees. At one extreme, there are Contracts which demand
that any ideas you have belong to the Company, possibly even
extending to ideas you have in your own time (better not to be found
tapping drum patterns on your desk or writing lyrics on Company paper, then!).
At the other extreme, there are Contracts which recognise the value of
creative people, and allow any creative work to remain yours, just as
long as you credit the employer if you publish your little gems.
Another possibility is that your Contract entitles your employer to
share the rights to work that you create in their time.
If you are employed, do check your Contract of Employment to see if you
have agreed to anything which gives the rights to any of your five restricted
activities to your employer. If you create some work "in the course of his/her
employment", copyright ownership automatically belongs to your
employer "unless there is agreement to the contrary", so if there is
nothing stated in your Contract, then your ideas belong to your
employer. Fortunately, they would probably only claim that your
personal little creation was theirs if you were employed to do
something similar - for example, if you were employed to write rhymes
for greetings cards and you wrote a rhyming Christmas song,
it would be reasonable for your employer to claim that your song is
their property. Certainly the Courts would take this view - the
work would have to be relevant to the business of the employer if they
were claiming the five copyrights for your work. Employers can and do
enforce these clauses and could stop your creative career at a
stroke, but its unlikely that an employer would be interested in a song
that wasn't likely to earn much money for them in the first place.
The self employed used to be considered in the same way as full-time
employees (so their work would be the copyright property of the employer)
but to help in cases where a creative person is simply commissioned to
write a particular piece, and they remain self employed, then the
1988 Act allowed them to keep the copyright of their
work. This distinction was introduced to help artists and musicians
who generally work independantly of any employer and need to be
able to make their living from all of their creative work - it is unlikely
to help a part-time office worker keep the rights to
something they created during the period of their employment.
A musician in a "residency" at a venue or in a local authority's arts
institution, or employed as a music teacher or tutor may be seen
as being employed in the sense that work is created "in the course
of his/her employment", and so the first owner of the copyright to that
work is, therefore, the employer. Musicians should consider proposing
an alteration to their contract before agreeing it, which will give the
musician ownership of all the work created during such an agreement.
Note that if you simply refuse to sign a contract like that but go
ahead with the work and / or receive payments, then you'll
find yourself in the same position as someone in a contract with no
"agreement to the contrary", in other words, your employer will
own the rights to your work.
By "employment", I mean full-time work, but many musicians or
songwriters who get work like this may be self-employed, and so
should keep the copyright of their work, even if it is produced during
work for an arts organisation, school or college. Ideally, there should always
be a precise agreement in the Contract to make clear that you are
not an employee and you therefore there is not an employer who can
claim ownership of the copyright to your work.
Let's split the profits fairly.
What is fair?
Does the drummer receive as much from your musical success as the
singer songwriter? What happens when the bass player leaves the band?
And who said anything about profits anyway? !!!!!!!
If you're ever offered a Recording Contract or a Publishing Contract,
these questions might, and might not, be answered in the contract.
This is an area where you should ask your solicitor to, either,
ensure that the contract does spell out who is to receive what,
or, to draw up a separate document which clearly defines the rights of
the individual band members. If you don't, the contract may not allow
income to be distributed as you might wish. It may even divert your
income to fund the next part of your band's project, a trick called
cross-collateralisation which often results in performers not seeing the
income they expect. In a seriously professional band, the band might be
incorporated as a Limited Company with all the separate legal rights that that
involves, and the band members could then be employees of that
Company. Becoming a Limited Company carries quite a few additional
responsibilities and costs, free leaflets available from the
Law Society are in the reception of most Solicitor's offices and they
will give you an outline. But if you do form a Company, any
Record Company interested in you will probably insist that only the
named individuals are in the band. That would still leave you to
write your own agreement among yourselves, before you start receiving
any royalties, to explain what you want to happen if various
members leave, or if the whole band splits up. Just think of it as
agreeing all the details of your divorce settlement before getting married!
What's in a Name?
Which is going to raise more money at the box office: the sales of tickets
to see George Michael or to see The Wheely Bins? Yes, the name makes a big
difference, and what if your real name is George Michael?
Under the UK Trade Marks Act 1994, a name can be considered as a Trade
Mark "if it is capable of being represented graphically" (which includes written
words) and "which is capable of distinguishing the ... services of one
undertaking from those of other undertakings". Unlike the Copyright Act,
Trade Marks have to be registered with the Trade Marks Registry
(contact numbers below), who will refuse a Name that it considers
is too similar to another registered name. If it accepts your
registration, it will publish your Trade Mark in the Trade Marks Journal,
and if there are no complaints within three months, they'll send you a
Certificate of Registration. The Trade Marks Registry offers
guidelines to help you understand the requirements and limitations on
registering new Trade Marks, notably the responsibility for you as
the Trade Mark owner to make sure other people know that its your
Trade Mark, usually by including the international registered Trade Mark
symbol or adding the words Registered Trade Mark next to your
name - not ideal in a cool poster for your band's tour. They also have
a booklet to advise on international registration. International rights
are overseen by the World Intellectual Property Organisation (WIPO) run
by the UN in Geneva and follows what is known as the Madrid Protocol
which has now been adopted by 62 countries worldwide. The costs
of registration of your name in several countries can be phenomenal. So
not surprisingly, very few bands and performers register their name as a
Trade Mark, particularly as registration is only slightly going to help win
an argument about who has the rights to a particular name. Consider
it as a last resort if you truly feel your band needs heavy duty protection.
The offence which you must not commit is known as "passing off", which
is the attempt to deceive the public (or anyone else) that you are
someone else, such as THE George Michael. Interestingly, Equity,
the Actors' Union, tries to avoid this risk by insisting that none of its
members have the same professional name as any other member, but the
Musicians Union does not (contact numbers below). However, don't be
fooled into thinking that because the MU won't insist on you using
an original name that it doesn't matter if you're name is not original.
Someone who has been using your name first is quite entitled to ask
you to stop - sending you an order to "cease and desist". If there is
any risk that your public could confuse you for them, then they may win
a case for financial damages from you if ever it went to Court.
Note that for the other person to succeed in a Court case against you,
they will have to meet four conditions:
1. show that they started using the name professionally before you,
2. that their name is well recognised in the business,
3. that there is now confusion in the music business resulting from your
use of the name, and
4. that they have suffered actual financial losses as a consequence.
Usually, all that happens is that you'll receive a solicitor's letter
from the other people who use your name demanding that you stop using
the name, and that you withdraw all material, publicity and merchandise
bearing that name. If you do so, you'll hopefully hear no more about it.
However, if you are already on tour promoting your first CD, with
adverts in the magazines and posters all over the UK, and maybe
even records in the shops, you don't want to be ordered to withdraw
all those materials and stop using your name, do you?
The safest route would have been to search for anyone else using your
name at the outset, and to be able to prove later that your search
was thorough. This proof should protect you from any accusation of
"passing off" as the other band. This is where a registry such as the
Band Register based in Oxford, (formerly known as the National
Band Register), can be invaluable. The Register has been established
for several years and so does include a very large number of current
as well as inactive band names. If asearch of their register doesn't
come up with anyone else using your name, it will at least
show that you've tried, even though there still remains the possibility
that someone else, somewhere, does use the name. Obviously,
they will encourage you to register your name with them, to minimise
the chance of anyone else using your name in the future.
Ultimately, the rights to use a name once a dispute is settled will
probably not be determined by any complex legal knowledge, and certainly
not by considering what is fair. As with most questions of legal ownership,
the wealthiest party in any dispute is likely to win, so be prepared to
give in under serious pressure. The sooner you concede, the cheaper
it can be.
Disclaimer.........
And now the get-out clause:
Nothing in this article can be considered as a substitute for personal
legal advice, and should not be relied on as legal advice. It is
intended to explain the copyright issues and consequently may not apply
everywhere. Any money you spend in taking specific advice should help
avoid most of the pitfalls mentioned in this article, and could easily
save you much more in the long run. I hope I have been of some use!
A story for you to think about!
A young songwriter I know was offered $11k for some of his words. What
would you do? He took it. And why not? The song "Angels" sold (I think)
over 40 million copies world wide, sung by Robbie Williams.You might think
that that's worth more than $11,000. Well, if you think that now, why
didn't our songwriter think that when he was entering into the deal?
The songwriter owned the lyrics and didn't know that they'd earn
anything, so he treated them as if they never would. Now not being able to
see into the future is one thing, but imagining that everything in the future
can be ignored is another. Rather than selling for a fixed price, he could
have licenced them for use in just a specified way in a specified country.
He could have put limits on the uses that the song could be put to so
that another deal would have to be agreed if the use was to be
extended. He could have put a time limit on the licence. Best of all,
he could have negotiated a percentage deal - a percentage of
whatever royalties were going to be collected as a result of
whatever the future was going to bring.
Perhaps he didn't take professional advice, but hopefully if you've
followed this article so far, you'll see that he could have done better
for himself if only he'd understood the principles.
Have YOU grasped the lesson of this story ?
.................................................................
Contacts:
In the USA:
•U.S. Copyright Office: http://www.loc.gov/copyright/
The Rest Of the World:
•PRS www.prs.co.uk - royalties paid to songwriters for use of their work.
•MCPS www.mcps.co.uk
royalties paid by record manufacturers for the rights to record.
•Copyright Control (CCS) www.copyrightcontrol.com
Representing copyright holders' interests internationally,
esp. issues of software & music copyright and pirating.
•Then there is the "World Intellectual Copyright Organisation" (WIPO)
Geneva, Switzerland. www.wipo.int - responsible for promoting the
protection of intellectual property throughout the world through
cooperation among States, and for the administration of treaties dealing
with the legal and administrative aspects of intellectual
property........
•Copyright in UK
http://www.hrc.utexas.edu/watch/uklocate.html
•Copyright in China
http://www.ieem.org.mo/projects/ecli/Reports/copyrigh.html
•Copyright in Russia
http://www.rupto.ru/ruptoen/law/intel.htm
•Copyright in Canada
http://strategis.ic.gc.ca/sc_mrksv/cipo/cp/cp_guide-e.html
written by Billy Tweedie ©2001
