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Of all the forms of copyright protected works, music is
perhaps the most restricted and licensed. Since music was
first broadcast on radio, a vast mechanism for licensing
music has emerged from the opposing forces of the
recording industry and the radio and TV broadcasting
industries. Today, licensing published music is handled
nearly exclusively by a few agencies. See Getting Permission for more
information about these agencies.
Music
Users: When You Need a License to Play
Music
Playing
Music for Personal Enjoyment. One of the
common issues that come up in music and copyright is
whether permission or a license is needed to play music.
Starting with the most private and simple of
circumstances, you do not need a license to play music in
your home for your personal enjoyment.1 You've
already paid for the CD. You may play it at home or in
your car for your personal enjoyment as much as you wish.
You may also play your radio in your home and in your car
without a license. The radio station already has a
"blanket" license to broadcast the music you enjoy for
free on your radio. As long as you and a few family
members or friends are the only people listening to the
music you play, you do not need permission or a license
to play music. It is only when the music you play is
heard in public that the legal necessity for a license
arises.
Playing Music
in Public. The right to perform or play a
song in public is one of the exclusive rights of the
copyright holder. You will need to get permission or a
license if you play music in public unless the music is
in the Public Domain or
the use of the music qualifies as fair use. But the line between what
is private and what is public is complicated. Prior to
the Music Licensing Act in 19982 , some
court cases have drawn the line and declared public uses
of music to be copyright infringement unless licensed, as
follows:
- Radio stations, bars, night clubs, and juke box operators;3
- Hotels that play the radio for guests through speakers or headphones;4
- Restaurants;5
- Stores;6
- Telephone intercom systems that play music while
callers are on hold.7
Posted by subscription license from artclip.com
Now the Music Licensing Act8 draws
the line between private and public in terms of the type
of public establishment, the size, and the stereo
equipment used. Restaurants and bars under 3,750 square
feet or retail establishments under 2,000 square feet are
exempt from paying fees for playing radio or TV
broadcasts for their customers. Public places of any size
that play radio or TV broadcasts are exempt from paying
fees if they use no more than six external speakers (not
more than four speakers in each room) for playing music.
Public places that play CDs or hire live musicians (that
play cover songs or copy songs) are still subject to
being licensed for fees.
You can lose the private home exemption and be subject to
a license if you charge anyone admission fees to listen
to music.9
Music
in Education. The Music Licensing rules also
generally apply to using music in the class room. There's
no question that performing music in class is a public
performance. However, music in the class room may have an
exemption from licensing in three ways. If music is
played on a special Web site as part of distance
education and otherwise complies with all prerequisites
under the TEACH Act, then it will be exempt from the
requirement of getting permission or paying licensing
fees. If music is played live in class for the purpose of
education or research, it may be exempt from permission
and license fees as fair use. A majority of the four
factors of fair use would have to favor fair use so music
may have to be edited so that entire songs are not
played. If music selection is not important, you may
simply bring a radio to class and tune in your
university's radio station. You should first determine if
your university's radio broadcast license allows public
performance of the broadcast in a class room. See
Getting Permission.
You can also use without permission any music with
expired copyrights or music that has been donated to the
Public Domain. See Public
Domain and Public Domain
Resources.
Music
Makers, Composers, Researchers, and Teachers:
Making or Using Music in Education
Music
Composition. For musicians who write or
compose original music, the copyright laws work
automatically to protect their work. Not only is original
music protected by a musician's copyright, the musician
may use his or her music in any way in education. Popular
recorded music must be either licensed or performed in a
way that satisfies the highly complex fair use exemption
in order to be used effectively in the classroom or
research, or as a public performance. Use of original
music by the composer is free from all copyright and
license problems. Copyright protection is automatic and
requires no formality. However, there are good reasons to
register copyrights to music above and beyond copyright
protection. Original artists should consider registering
their music before they send copies of their work to
recording labels and "shop" for a label. Registration
offers many benefits in legal strategy for any artist
that must enforce or defend their copyrights in court.
Besides opening the door to filing your own law suit
against someone you suspect has infringed or plagiarized
your music, you also are able to recover your attorney's
fees in most instances. See What is not
required. Perhaps the best advantage to registering
copyrights in music is documenting the point in time that
your music was composed. In the vast majority of music
plagiarism cases, the issue is who wrote the song first.
Technically, the issues of access to the copied song and
substantially similarity must be found in the copyright
owner's favor to win an infringement lawsuit. But this
often boils down to 'who wrote the song first?'
Registering your music makes a legal presumption that the
song existed as you wrote it at the time you registered
it. Registration is obtained easily online, and
inexpensively by visiting the U.S. Copyright Office web
site at:
www.copyright.gov/forms
For music copyright registration, you should read the
instructions for "Form PA." They also have a short form
that may be easier. Remember that many songs can be
registered as a collection for a single registration fee.
Simply print out and complete your form, attach a copy of
the music (cassette, CD, or music score) and deposit in
the mail.
Music
Plagiarism and Fair Use. Composing a song
that is substantially similar to another song you have
heard and representing to others that it is your original
work is considered plagiarism. It can also be copyright
infringement. The motive in documented music plagiarism
can range from the subconsciously innocent to the callous
indifferent to the notoriously defiant. At the least
offensive end of the spectrum, most notably in George
Harrison's My Sweet Lord, plagiarism is claimed to be
innocent or committed in the subconscious. In other
words, Harrison swears he thought his song was an
original song. At the other end of the spectrum, you have
the defiant song plundering and ridiculing by rap group 2
Live Crew. They wanted to make fun at the expense of Roy
Oribison's Pretty Woman. They asked for permission to use
the song and despite permission being refused, they
published a somewhat obscene "parody" of the song and
exploited it commercially in a nationally distributed
album. Copyright law applies to these matters in curious
ways because George Harrison lost his copyright
infringement case while 2 Live Crew won theirs. But 2
Live Crew's version of another song is not considered
plagiarism. They never represented that they wrote the
original song. The research and study of music plagiarism
may yield the essence of originality in music. For those
who wish to take the journey, embark here.
http://www.ccnmtl.columbia.edu/projects/law/library/entrance.html
In many of the court cases involving music and fair use,
the use of music successfully as fair use has been music
that is a "parody" of other music. See Parodies in Special Fair
Use Cases. The legal analysis that best describes
this can be found in the most recent U.S. Supreme Court
case on fair use and music, Campbell vs. Acuff-Rose
Music.10
Music
Sampling. With the popularity of hip hop and
rap music, the legality of music sampling has risen. Most
musicians are well acquainted with the sampling process.
For the uninitiated, the process can be described as the
digital copying of, usually, a minute portion of another
popular copyrighted song. Sampling can involve several
seconds of a song, or only a small "riff" or sequence of
notes or sung words. In some cases artists who publish
samples in their music have obtained written permission
or a license to sample a song by the copyright owner of
the sampled song. In more cases, permission is not
obtained. As a recent court opinion observes, where you
"stand" on the copyright issues of this practice often
depends on where you "sit." Artists whose songs are being
sampled without permission generally condemn the
practice, while artists who sample music without
permission defend it. After many years of legal
skirmishing, the first court opinion has been published
as a first impression analysis of sampling.
The court's analysis is somewhat complex but concludes
that no sampling can be made without a license or
permission.11 The
reason is not because of the copyright to the music
composition in the sample, but because of the copyright
to the sound recording. The court interprets the
copyright statute, 17 USC Section 114, as prohibiting the
copying of the whole or any part of a sound recording.
The new ruling reasons that you should either pay for a
license to sample a song with the original sound
recording, or go into the studio yourself and recreate
the sample with your own sound recording.
For many hip hop and rap musicians, the point of sampling
a song is precisely to copy the sound recording of a well
known song to give their song a certain feel or emphasis.
The intent is to link their song in this manner to the
earlier song in the listener's mind. Most would not
consider trying to reproduce the sound independently
because it wouldn't have the same feel. The
Bridgeport Music opinion now clarifies that
samples of original recordings must be licensed.
Music that
Can be Used in Education Without Permission or
License. Summarizing, music can be played in
the class room if:
- it is an original composition and you are either the composer or have the composer's permission;
- the music is popular recorded music and you have the permission of the publishers;
- if the music is used in distance education and you comply with all the requirements of the TEACH Act;
- the music qualifies under the highly complex fair use exemption; or
- the copyright to the music has expired or it has been donated to the Public Domain.
Other
Sources for Music and Copyright Related
Information. Whether you are writing a paper
about originality in music theory or play in a band that
performs both "cover" songs and original songs, you will
likely find one or more of the following sites
helpful:
http://www.lib.jmu.edu/org/mla
http://www.edu-cyberpg.com/Music/musiclaw.html
http://www.menc.org/information/copyright/copyr.html
http://law.freeadvice.com/intellectual_property/music_law
http://dir.yahoo.com/Government/Law/Intellectual_Property/Copyrights/Music
http://www.pdinfo.com
1 17 USC Section
110(5)(A)
2 Full title is Copyright Term Extension and
Music Licensing Act.
3
Broadcast Music, Inc. vs. Star Amusement, Inc.
(7th Cir.) (http://laws.findlaw.com/7th/934074.html)
4 Buck vs. Jewell-La Salle Realty Co.,
283 U.S. 191 (1931) (http://laws.findlaw.com/us/283/191.html)
5 Red Cloud music Co. vs Schneegarten, 27
USPQ2d 1319 (CD Cal 1992)
6 Mole Music vs. Mavar's Supermarket, 12
USPQ2d 1209 (ND Ohio 1989)
7 Prophet Music, Inc. vs. Shamla Oil Co.,
26 USPQ2d 1554 (DC Minn 1993)
8 17 USC Section 110 (5)(B)
9 17 USC Section 110 (5)(A)
10 510 U.S. 569 (1994)
11 Bridgeport Music, Inc. v. Demsion Films, 2004
FED App. 0297P (6th Cir.), File Name: 04a0297p.06.
(http://laws.findlaw.com/6th/035738.html)