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Category: Blog
#Workplace
What will it take for you to work in a workplace like this?
#JustAThought
Here’s what I know. There are more than enough artists, producers, managers, and labels to go around, so what’s keeping you from succeeding? Here’s a thought. Maybe you’re selfish, greedy, self centered, petty, and immature. But that’s just a guess. Do you realize that you are the only one who is stopping you? You can attempt to do it all by yourself, and even become successful, but that also means that you have to either create a great product or a less than perfect one. Ask yourself something. Who do I know that will be willing to pay me for all the time and money spent on creating your product? Take your time I’ll wait. Maybe you have it all figured out, but not everyone does. Get some quality help and lighten your load. After you’ve generated a following, then consider independence. What have you got to lose. Do your research and enquirer assistance. Just a thought.
#Break
I apologize for the lack of content this week. There has been a loss in the family and I will not be posting for a while. Sorry for the inconvenience.
#KnowTruths
Entertainment Law Mythbusters: Your Questions about Legally Sampling Music Answered
Adam Freedman
Apr 17.2018 6 min read
The rules around sampling music have been mystifying musicians since the enactment of the Copyright Act of 1976.
While copyright laws regarding how to clear a sample often seem straightforward when discussed in the abstract, the ability to tell wrong from right when you’re experiencing a situation first-hand seems to take a perplexing turn for many musicians. And failing to adhere to copyright laws has proven to evolve into an expensive mistake even the most seasoned of musicians have been known to overlook, including De La Soul, Robin Thicke, and Led Zeppelin.
At the same time, adept music fans are sure to have noticed the decades-long trend of Billboard-topping tracks directly incorporating inspiration from their predecessors in the form of sampling — most recently, Drake who sampled Ms. Lauren Hill who sampled Wu-Tang Clan who sampled Gladys Night and the Pips.
This points to the fact that sampling is indeed possible to do legally and in good faith; but failing to do so can be detrimental to both your bank account and career.
Let’s bust the myths surrounding legal music sampling once and for all. Test your music sampling knowledge with a brief pop quiz below, and feel free to refer back to this guide any time you’re in doubt.
1. True or False: If you only sample two seconds of an existing work, it’s “fair use.”
FALSE. Think of it this way: if you go to the store and steal a pack of gum, is it not considered stealing regardless of the amount or price tag? Whether we’re discussing a $1 pack of gum or a few songs of someone else’s original track, stealing is stealing — regardless of the amount. Keeping this logic in mind will always steer you straight when it comes to the legalities of sampling music.
When you sample another artist’s music without obtaining their permission, you’re infringing on the copyright to that work, no matter how big or small of a portion you actually use. If the owner of that work registered it with the U.S. Copyright Office, he or she would then have every right to sue you for statutory damages — which can be substantial.
Therefore, if you want to legally use a sample of a piece of music in your work, you have to obtain permission, every single time.
You may have also heard that using such a small sample is protected by the concept of “fair use.” However, fair use is simply a defense to a claim of copyright infringement. Translation: It will not prevent you from being sued over your potentially infringing work.
Regardless, fair use would be difficult to prove in the case of sampling music. Under fair use, sampling must be for the purpose of criticism, comment, news reporting, teaching, scholarship or research. Still unsure? Courts have broken down whether sampling is covered by fair use into the following factors:
1) The purpose and character of the use: Is the new work commenting on the old work? Is the new work educating people about the old work?
2) Nature of the use: Is the new work being sold for profit?
3) The amount of substantiality of the previous work being used: Does the new work need to use so much of the previous work, especially if you’re claiming it’s a commentary on the original work?
4) Harm done to the original copyright owner: Is the new work replacing the previous work? Are people now purchasing the new work instead of the original?
Long story short — don’t sample without securing the rights. While these judgment criteria are somewhat subjective, more often than not, music sampling by musicians is not protected by fair use and even if it is, you’ll still end up shelling out thousands in order to pay an attorney to defend your argument in court.
How much it costs to sample someone else’s work can vary greatly depending on the song, but your best bet is to reach out to a performance royalty organization like ASCAP or BMI, find out who holds publishing rights, and reach out accordingly to gain permission.
2. True or False: You can freely sample any work that isn’t copyrighted at the time of sampling.
FALSE. A work is actually protected by copyright laws the moment it is created and “fixed in a tangible form.” In layman’s terms? The moment you take an idea and turn it into a song that you can play for someone else, your work is protected by copyright.
You may be wondering why some creators choose to take the extra step to officially register a copyright with the U.S. Copyright Office. Taking this legal step is voluntary, but can serve you by adding an additional layer of protection, as registered works are eligible for additional remedies, namely the ability to sue for statutory damages and attorney fees.
3. True or False: Even if you don’t plan on selling your music or mixtapes with uncleared samples, and just want to distribute them online and/or offline for free, it’s still copyright infringement.
TRUE. It doesn’t matter if you have no plans to ever make money from your music — if you’re using any amount of uncleared samples, you’re still infringing.
Whether registered with the U.S. Copyright Office or not, artists are presented with six exclusive rights upon the creation of their original work:
1) The right to reproduce the work;
2) The right to distribute the work;
3) The right to perform the work;
4) The right to display the work;
5) The right to make derivatives of the work; and
6) The right to digitally transmit the work.
While some artists might not bother to enforce their rights and prevent you from using a sample in a work that you’re sharing for free, they still would absolutely have every right to do so — and regardless of how great your idea is, you should heavily weigh if it’s worth as much as a potential lawsuit would be. Be aware this also includes mashups or other forms of compilations.
Whether shared for free physically or online, the law is that only the copyright owner has the right to reproduce, distribute, and make derivatives of their music.
4. True or False: Copyrights expire when an artist dies.
FALSE. According to the Copyright Act of 1976, as amended in 1998, works created on or after January 1, 1978, are protected by copyright for 70 years after the creator’s death.
If you’re looking to sample music created by a group, it may be protected for even longer. For a “joint work prepared by two or more authors who did not work for hire,” the term lasts for 70 years after the last surviving author’s death.
5. True or False: If you quote lyrics from another artist but record it in your own voice, it’s not copyright infringement.
FALSE. There are two inherent copyrights created along with every new piece of music: the sound recording and the underlying musical composition. In this case, you would not be infringing upon the sound recording, but you would be infringing regarding the underlying composition.
Have further questions about copyright do’s and don’ts? Whether you’re an electronic producer sharing your tracks on Soundcloud just for fun, a buzzing rapper seeking to distribute your mixtape in good legal standing, or a cover band wondering what your rights are when it comes to performing for pay, we’re here to help.
WRITTEN BY
Adam Freedman
Attorney for artists, entrepreneurs, and other creatives http://acfreedmanlaw.com
#BetterTogether
Some people are naturally gifted and talented, while others have to work extra hard to become good enough to get recognized. That’s not to say that one is better than the other, it’s just as hard for either to make it. What may separate them is the measure of determination that’s applied to succeed. What is needed, is respect and support for each one trying to make it. Those coming up need the same support that they are giving you. We can all succeed if we put aside our jealousy and hate. One thing for sure is that when, and I do mean when I come up, I’m going to pull my supporters up along with me. The struggle is real, and you can’t do anything alone.
#Trivia#6
Here’s a short list of famous artists from an iconic studio. Where is the studio located and what is the name of it.
Martha Reeves, Barrett Strong, Edwin Star, Stevie Wonder, Marvin Gaye
#Care
Why am I so set on helping you get the information you need to succeed? Well I know that we are supposed to motivate each other so that you can have a future worth leaving your children. That is if you want a future. I believe that you want what is entitled to you for all the hard work you’ve put in and not have slackers steal it from you and your families mouths. But there again, that’s only if it matters to you!
#IntellectualProperty
To follow up with the last blog, I’m wanting to keep your minds on need to know information. I hope this information clarifies some of the questions you have.
It’s not just businesses and corporate environments that need intellectual property protection – artists of all kinds must protect their work too. Specifically, musicians have a lot to copyright and trademark – band names, original music, and album art, to name a few.
Kim Umanoff, General Counsel and Chief Operating Officer of Blue Elan Records, LLC, sat down with IPWatchdog to discuss how musicians and bands who are just starting out can protect the IP of their music. Umanoff is the former managing associate at Liner LLP and has an entertainment law background with extensive experience in contracts and transactional law.
First of all, according to Umanoff, any band or musician that is just starting out must surround themselves with a great team early in their career. An integral member of that team is the music attorney. “I can’t stress how important it is to hire an experienced music lawyer early, and keep that attorney well informed,” she advised.
Often, the first contract signed by an artist can tie up the artist’s career for almost seven years and can restrict the artist’s creative control. So, it is essential for the artist to hire an attorney before signing any deals to ensure that the contracts are properly negotiated. The music attorney can also help guide musicians in assembling other key members of their team, including a manager, business manager, and an agent. Second, musicians just starting out should learn the business so they can really understand the ramifications of their career decisions. Umanoff recommends taking classes at a local college, reading some of the many primers on the music business, and seeking advice from those who have gone through the process.
“When it comes to recording, musicians can legally record and perform cover songs, but they have a few hoops to jump through first,” she explained. “Once a song has been previously recorded and commercially released, any artist may record a cover and can distribute it after obtaining a mechanical license from the rights holder, that is, the owner of the copyright in the composition. Mechanical royalties must then be paid to the publisher of the composition.”
In fact, in the U.S., the mechanical royalty rate is set by statute. Services like Harry Fox Agency can assist in procuring mechanical licenses and prepaying mechanical royalties. But, there are some exceptions – if a band is covering a song that is in the public domain, a license is not required and mechanical royalties need not be paid.
Additionally, a band can publicly perform a cover song, but anyone who plays copyrighted music is required to obtain a performance license, according to Umanoff. The owner of the venue where the song is performed usually has the responsibility for procuring the performance license and can obtain blanket licenses from the performing rights societies.
When it comes to YouTube, today, musicians should pay close attention to monetization of their IP rights, according to Umanoff. This means making sure that YouTube has reference files, which are samples of the copyrighted materials so that YouTube can attempt to recognize an artist’s work when incorporated in user-generated content.
She said, “The artist must also ensure that their reference files contain accurate metadata so that YouTube knows who to pay when copyrighted works are streamed. Independent companies specializing in confirming that YouTube content is monetized by uploading reference files and manually checking metadata are emerging and growing a new frontier of music technologists.”
Not to mention, artists must be vigilant to police infringement, which is an unavoidable consequence of a platform that allows user-generated content from any of its billion-plus users. YouTube isn’t directly responsible for the content uploaded by its users but does take precautions to reduce infringement. YouTube has a rights management system called Content ID to scan all user-generated content against the reference files supplied by the rights owners. When user-generated content matches the reference files, YouTube flags alerts the original rights owners, but this software won’t work unless the rights owners provide the appropriate reference files, per Umanoff. When it comes to trademarking a band name, it basically means the musicians are filing When it comes to trademarking a band name, it basically means the musicians are filing
When it comes to trademarking a band name, it basically means the musicians are filing notice with the U.S. Patent and Trademark Office and having the registration approved. But, the process is not where rights originate – the rights to a name or mark can only be secured through use, not through the registration process.
“A band gets rights to its mark if the band uses the mark enough so that the public associates the mark with that band. Once the mark, whether a trademark (for goods) or a service mark is associated in the mind of the public with a band, that band can stop another musician from using a mark that is similar enough to cause confusion in the minds of the public,” she said.
How can musicians copyright their original music? The U.S. Code Title 17 provides that an original work fixed in a tangible medium of expression is copyrightable – meaning that pursuant to copyright law, the moment a musician writes down an original song or records a performance of an original song, a copyright exists and is protected under common law. Musicians can also register musical compositions with the U.S. Copyright office outline by filling a registration form and uploading an electronic copy of the work or mailing a copy to the Library of Congress, Copyright Office.
In a similar way to registering a composition for a copyright, album art can be registered with the Library of Congress copyright office. Just like compositions, protection for original works of authorship, including album art, incepts when the work is created. But, it’s important to note that if musicians are not the creators of their album artwork, they may never own the copyright.
Umanoff explained, “Just because the musician or record label purchases artwork for an album does not mean the copyright was purchased. Instead, musicians or record labels often purchase a license to use the artwork for a certain period, in a certain location, and to exclude other categories of individuals from using that artwork.”
Finally, if the band breaks up, they should have a written agreement governing the band’s break up. For the same reasons people have pre-nuptial agreements, bands should sign agreements detailing how assets, including merchandising rights, rights to master recordings, or IP rights like trademarks or logos, will be divided if the band breaks up.
Amanda G. Ciccatelli is a Freelance Journalist for IPWatchdog, where she covers intellectual property. She earned a B.A. in Communications and Journalism from Central Connecticut State University in 2010. Amanda is also currently Head of Content Marketing, Social Media & Digital Products at Informa, a leading global business intelligence, academic publishing, knowledge, and events business. Follow her at @AmandaCicc.
#UnderstandingCopyrightLaw
I recently read this blog from Reverb Nation and wanted to share it with you. I want to encourage everyone to know what is lawful and not lawful in music. More like this to come.
Music Law 101: What Does Copyright Law Protect?
We are pleased to introduce a new blog series. Music Law 101 will be a recurring bi-weekly series consisting of posts covering a wide variety of legal topics relevant to artists, musicians, songwriters, producers, and others in the music industry. Topics will include information on copyright law, trademark law, the right of publicity, laws relating to agents and managers, and music contract law.
With the Music Law 101 series, we intend to break down legal jargon to make the concepts useful to you as you create, perform, and distribute music. We want to help you Protect Your Music and Protect Yourself.
Copyright law can be confusing. This post provides an introduction to copyright law for musicians and addresses the often misunderstood issue of what exactly copyright law protects.
The most important concept in music copyright law is that every single piece of recorded music involves two distinct rights:
- The first right protects the underlying musical composition—that is, the specific arrangement and combination of musical notes, chords, rhythm, harmonies, and song lyrics. The law refers to this first type of copyright as a “musical work.” This interest is also sometimes referred to as the “musical composition” or the “song.”
- The second right protects the actual recording of a musical composition, which copyright law refers to as the “sound recording.” This interest is also sometimes referred to as the “master” or the “recording.
While an unsigned songwriter who performs and records his or her own original songs owns both the musical work and sound recording copyrights in the song, it is often the case that the two distinct rights are owned by separate individuals or entities. In general, music publishers own or control the musical work copyright, and record companies own or control the sound recording copyright.
Music copyright, whether as a musical work or a sound recording, is created immediately upon creation and satisfaction of the following elements:
- It must be an original work of authorship; and
- It must be fixed in any tangible medium of expression, such as written sheet music, a MIDI file, or a digital (or analog) recording.
For example, as soon as an original song is written down as sheet music or recorded as a MIDI or computer sound file, a copyright is created. It is not necessary to publish the song or register a copyright with the U.S. Copyright Office. However, as we will discuss in a future blog post, registration is required to obtain certain benefits under the Copyright Act.
While copyright protection generally arises immediately when a new song is recorded, the new song must be original. That is, the work must be original in the sense of being the creative product of the author’s own efforts. There is no requirement that it be original in the sense of being novel. “Original” means only that the work was independently created and that it possesses at least some minimal degree of creativity. “Originality” doesn’t mean a work of extraordinary genius.
While there are no bright-line rules, some courts have held that rhythm and harmony are generally in the public domain and not “original,” while melody is often determined to be “original” and protected by copyright. And, courts have held that contributions by producers and engineers to the creation of sound recordings, including the processing of sounds and the balancing, equalization, and integrating of vocal and instrumental into a blended whole, can be protected by copyright. On the other hand, musical style (i.e., the style of reggae), themes, or ideas in the abstract are not protected by copyright.
Often in copyright infringement actions, the defendant will argue that the plaintiff does not have copyright because the song at issue was not original. For example, in 2007, 50 Cent was sued over his use of the line “Go shawty. It’s your birthday” in the song “In Da Club.” The plaintiff, a music publisher, claimed that the lyric was copied from its song “It’s Your Birthday,” which was written by Luther Campbell (aka, Luke Skyywalker). However, the court ruled for 50 Cent, holding that those lyrics were not original because the phrase was a common chant at hip hop events and nightclubs, had appeared in other prior songs, and Luther Campbell admitted that he didn’t create the phrase. So, if a song or lyric is not original, it’s not protected under copyright law.
Similarly, words and short phrases are generally not copyrightable. A court held that the phrase “Everyday I’m Hustlin” used in the song “Hustlin’” by Rick Ross is “a short expression of the sort that courts have uniformly held uncopyrightable.” As such, the use of the lyrics “Everyday I’m Shufflin” in the hit song “Party Rock Anthem” by LMFAO was not an infringement of the Rick Ross song lyrics. Similarly, in dismissing a lawsuit filed against Taylor Swift, a court recently found that the lyrics “Playas, they gonna play / And haters, they gonna hate” were “too brief, unoriginal, and uncreative to warrant protection under the Copyright Act.”
In sum, music copyright law protects musical works and sound recordings that are original works of authorship and fixed in any tangible medium of expression. In our next Music Law 101 post, we will explain how authorship and ownership of music copyrights are determined.
The Music Law 101 series is provided by Coe W. Ramsey and Amanda M. Whorton of the law firm Brooks, Pierce, McLendon, Humphrey & Leonard LLP. Brooks Pierce provides sophisticated and strategic counsel to a wide variety of clients in the entertainment industry, including artists, musicians, songwriters, record producers, DJs, artist managers, radio stations, television stations, new media companies, record and publishing companies, film and television producers, advertisers, actors and reality TV talent, radio talent, and literary authors and publishers. The Music Law 101 series provides a survey introduction to the laws in the United States relevant to the music industry, is not intended as and shall in no way be construed as legal advice or a legal opinion on any specific set of facts or circumstances, and shall not be construed as creating an attorney-client relationship.
Rebecca April 25, 2018
Broedwick Moore Music 