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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)