Recording - March 2010 - 32

By Todd Gascon and Bruce Kaphan Making music is a lot of fun—but if you do enough of it, there comes a time when it should pay for itself. No matter what your involvement is—songwriter, performer, composer, recording musician—you have rights, risks, and obligations, and knowing what they are can make you—and save you—a lot of money. We’re starting a new series that will spell out in great detail what those rights, risks, and obligations are. Frequent contributor Bruce Kaphan, who runs his own studio and has written, played, recorded and produced music for a living for many years, and Todd Gascon, Bruce’s longstanding entertainment lawyer who specializes in this business we’re in, collaborate to bring you the legal aspects and the musician’s reality. Use the information in this series as a guide, and always remember to discuss your specific situation with a lawyer of your own choice. In this issue that is mainly dedicated to songwriters, we meet Todd Gascon who brings us the legal definitions of copyright. Next time we’ll meet Bruce Kaphan, who will discuss the musician’s practicalities (and difficulties) of going through the copyrighting process. That’s only the beginning; in the months to come, Todd and Bruce will address the entire range of legal and business concerns that can turn your musical activities from an expensive hobby into a profitable career.—LzR Chapter 1: Copyright As a songwriter, recording artist, or producer, it is important for you to have a basic understanding of copyright law. 1. What is a Copyright? Copyright is a form of legal protection provided under the Federal law to creators of “original works of authorship”. In the United States, copyrights are protected under the U.S. Constitution and set forth in the 1976 Copyright Act (www.copyright.gov/title 17/). 2. What is protected under the U.S. copyright laws? As a form of intellectual property, U.S. copyright law protects original works of authorship including literary, dramatic, musical, and artistic works, such as poetry, novels, movies, songs, computer software, and architecture. 3. What is not protected by copyright? Copyright does not protect facts, ideas, systems, or methods of operation. At its essence, copyright protects a creator’s original expression. For example, the idea for a television show about an American family (i.e., mother, father, daughter and son) is not protected by copyright. However, an individual’s original expression of an American family is protected byRECORDING MARCH 2010 copyright (e.g., All in the Family, The Jeffersons, Family Ties, Married with Children and The Simpsons). The same is true with songs. The U.S. Copyright law does not protect the idea of what it feels like to break up with your boyfriend or girlfriend. However, U.S. Copyright law will protect a songwriter’s expression of what a breakup feels like to him or her. Examples of this feeling that all of us have experienced are plentiful throughout the history of recorded music: “Yesterday” by The Beatles, “Don’t Leave Me This Way” by Thelma Houston, “You’ve Lost That Loving Feeling” by The Righteous Brothers, “Crying” by Roy Orbison, “Go Your Own Way” by Fleetwood Mac”, “Good Riddance (Time of Your Life)” by Green Day, and “Shoot Out The Lights” by Linda and Richard Thompson. 4. What are the rights that copyright protects? Section 106 of the U.S. Copyright Act grants the copyright owner a number of exclusive rights to do and permit others to do any of the following: a. Make copies or phonorecords1; b. Make derivative works based upon the original work; c. Distribute copies or phonorecords of the work to the public; d. Perform the work in public2; e. Display the work in public; and f. In the case of sound recordings, to perform the work publicly by means of digital audio transmission. It is important to understand that these exclusive rights are the basis for the compensation you receive when your composition or recording is commercially exploited. Without these exclusive rights, you would not be able to prevent someone from recording your song and sell copies of their recording without paying you. 5. How long does a copyright last? A. In General For works created on or after January 1, 1978, an original work is automatically protected from the moment it is created and fixed in a tangible form (i.e., something you can touch) and continues to be protected for the life of the creator plus 70 years after his or her death. For works created prior to January 1, 1978, the duration of copyright protection may vary and the length of copyright protection depends upon a number of factors including the date the work was created, whether the work was published and whether the copyright owner complied with the requirements under the prior Copyright Act.

http://www.copyright.gov/title17/

Recording - March 2010

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