[NEohioPAL] Legally Obtaining Rights to Music for Your Film - Installment #3, Copyright Basics

Sun May 1 21:19:42 PDT 2011

*Legally Obtaining Rights to Music for Your Film *

*Installment #3 –Copyright Basics*

*
*

*by Mary Ellen Tomazic*

       Music used in films is subject to federal copyright laws, which allow
for exploitation of such rights. Title 17 of the United States Code at
section 106, Exclusive rights in copyrighted
works[1]<file:///C:/Users/Maryellen/Documents/Indie%20Club%20Article%20%233%20b-%20music%20for%20films%20-%20copyright%20basics.docx#_ftn1>,
grants exclusive rights to the creator of the work, such as the right “to
reproduce the work in copies or phonorecords”, and to “prepare derivative
works based on the copyrighted
work”.[2]<file:///C:/Users/Maryellen/Documents/Indie%20Club%20Article%20%233%20b-%20music%20for%20films%20-%20copyright%20basics.docx#_ftn2>Specific
rights pertaining to sound recordings are found at section 114
‘Scope of exclusive rights in sound recordings” which is “…limited to the
right to duplicate the sound recording in the form of phonorecords or copies
that directly or indirectly recapture the actual sounds fixed in the
recording.”[3]<file:///C:/Users/Maryellen/Documents/Indie%20Club%20Article%20%233%20b-%20music%20for%20films%20-%20copyright%20basics.docx#_ftn3>
 This is the statutory authority to grant a mechanical license to reproduce
a copyrighted musical composition. ”Cover versions” or different musical
arrangements of compositions, and the statutory royalties which must be paid
for making them are set out in section
115.[4]<file:///C:/Users/Maryellen/Documents/Indie%20Club%20Article%20%233%20b-%20music%20for%20films%20-%20copyright%20basics.docx#_ftn4>Recording
a cover version of a song for your movie will involve obtaining a
compulsory mechanical license by giving notice to the copyright holder
before or within thirty days after making, and before distributing any
phonorecords of the work, including digital
delivery.[5]<file:///C:/Users/Maryellen/Documents/Indie%20Club%20Article%20%233%20b-%20music%20for%20films%20-%20copyright%20basics.docx#_ftn5>(For
purposes of filmmaking, the `delivery’ would include the song’s
recording and synchronization with the film.) Any person en titled to obtain
a compulsory license may instead negotiate with the copyright owner of the
music and agree on the terms and rates of royalty
payments.[6]<file:///C:/Users/Maryellen/Documents/Indie%20Club%20Article%20%233%20b-%20music%20for%20films%20-%20copyright%20basics.docx#_ftn6>For
music that is in the public domain, such as the 19
th century-era classical compositions, you may buy the sheet music
royalty-free, but the recordings with full orchestras are under copyright
protection, owned by the individual orchestra. If you have your own
orchestral musicians to play the piece, it will be cheaper than obtaining
the copyrighted existing recording owned by the performing orchestra.
However, for phonograph records distributed before the copyright protection
for phonograph records was enacted in 1972, there is no copyright
protection.[7]<file:///C:/Users/Maryellen/Documents/Indie%20Club%20Article%20%233%20b-%20music%20for%20films%20-%20copyright%20basics.docx#_ftn7>Recording
artists had to look to state common law for protection against
record piracy under the theory of `unfair competition’. The copyright law at
section 301(c) states that “no sound recording fixed before February 15,
1972, shall be subject to copyright under this title
…”[8]<file:///C:/Users/Maryellen/Documents/Indie%20Club%20Article%20%233%20b-%20music%20for%20films%20-%20copyright%20basics.docx#_ftn8>This
would include a phonograph record such as The Cleveland Orchestra
conducted by the late George Szell’s recording of “Beethoven Symphony No.1
in C Major, and Symphony No.2 in D Major”, a sound recording fixed before
February 15, 1972, without copyright protection. It is noted on the back of
the album that the pieces themselves are in the public domain, having been
written in 1799 and 1803,
respectively.[9]<file:///C:/Users/Maryellen/Documents/Indie%20Club%20Article%20%233%20b-%20music%20for%20films%20-%20copyright%20basics.docx#_ftn9>As
it was recorded before the 1972 change in the copyright law, there is
no
notice of copyright for the recording, just the trademark notice for the
`Epic’ label logo. These stereo recordings are now part of Sony Classical,
and have been reissued on vinyl by that
company.[10]<file:///C:/Users/Maryellen/Documents/Indie%20Club%20Article%20%233%20b-%20music%20for%20films%20-%20copyright%20basics.docx#_ftn10>I
would still not recommend using the pre-1972 recordings of public
domain
compositions, as the underlying performances do have copyright protection,
and in any case have mostly been rereleased in other forms after copyright
protection was legislated for phonograph records, as in CD and other
versions. A proof problem may ensue if it becomes necessary to prove which
version of the recording was used.

       For older pieces of music that you may think are in the public
domain, renewal or reversion of copyrights may have taken place already.
Under the renewal right section of the copyright law, 17 U.S.C. § 304, a
recent amendment changed the duration of copyright protection for all
copyrights in existence for works published after
1923.[11]<file:///C:/Users/Maryellen/Documents/Indie%20Club%20Article%20%233%20b-%20music%20for%20films%20-%20copyright%20basics.docx#_ftn11>For
works published or registered before 1978 which were registered prior
to
the end of the initial 28 year term, giving them another 28 years of
copyright protection, the new law has extended the renewal term for
copyrights in existence on January 1st, 1978 to 67 years for a total of 95
years copyright protection. If a work was published between 1923 and 1963,
the copyright owner was required to apply for a renewal term with the
Copyright Office.[12]<file:///C:/Users/Maryellen/Documents/Indie%20Club%20Article%20%233%20b-%20music%20for%20films%20-%20copyright%20basics.docx#_ftn12>If
they did not, the copyright expired and the work went into the public
domain. If they did apply for renewal, these works will have a 95 year
copyright term and will go into the public domain no sooner than 2018 (for a
1923 work.) If the work was published between 1964 and 1977, it will
automatically have a 95 year copyright term, with no need to apply for a
renewal.[13]<file:///C:/Users/Maryellen/Documents/Indie%20Club%20Article%20%233%20b-%20music%20for%20films%20-%20copyright%20basics.docx#_ftn13>In
addition, copyright holders, or their survivors, who granted the
copyright to another person or company have the right to terminate that
grant “…at any time during a period of five years beginning at the end of
fifty-six years from the date copyright was originally secured, or beginning
on January 1, 1978, whichever is
later.”[14]<file:///C:/Users/Maryellen/Documents/Indie%20Club%20Article%20%233%20b-%20music%20for%20films%20-%20copyright%20basics.docx#_ftn14>This
gives the relatives of a deceased author another chance to extract
value from copyrighted works, and does require that notice be filed with the
Copyright Office within certain time
limits.[15]<file:///C:/Users/Maryellen/Documents/Indie%20Club%20Article%20%233%20b-%20music%20for%20films%20-%20copyright%20basics.docx#_ftn15>This
provision attempts to correct injustices caused by the signing away of
rights by young authors, musicians and artists for very little money early
in their careers. Any derivative works created from the original copyrighted
work before the expiration of the original term may continue to be used
under the terms of the original grant during the renewed or extended term of
copyright without infringing the original copyright, except that no new
derivative works may be prepared during that renewed and extended term based
upon the original copyright covered by the
grant.[16]<file:///C:/Users/Maryellen/Documents/Indie%20Club%20Article%20%233%20b-%20music%20for%20films%20-%20copyright%20basics.docx#_ftn16>If
the heirs of an author have already terminated the grant of copyright
to
the work, they can also stop further exploitation of derivative works based
on the original copyrighted
work.[17]<file:///C:/Users/Maryellen/Documents/Indie%20Club%20Article%20%233%20b-%20music%20for%20films%20-%20copyright%20basics.docx#_ftn17>

------------------------------

[1]<file:///C:/Users/Maryellen/Documents/Indie%20Club%20Article%20%233%20b-%20music%20for%20films%20-%20copyright%20basics.docx#_ftnref1>17
U.S.C. § 106 (2006).

[2]<file:///C:/Users/Maryellen/Documents/Indie%20Club%20Article%20%233%20b-%20music%20for%20films%20-%20copyright%20basics.docx#_ftnref2>Id.

[3]<file:///C:/Users/Maryellen/Documents/Indie%20Club%20Article%20%233%20b-%20music%20for%20films%20-%20copyright%20basics.docx#_ftnref3>17
U.S.C. § 114(b) (2006).

[4]<file:///C:/Users/Maryellen/Documents/Indie%20Club%20Article%20%233%20b-%20music%20for%20films%20-%20copyright%20basics.docx#_ftnref4>17
U.S.C. § 115 (2006).

[5]<file:///C:/Users/Maryellen/Documents/Indie%20Club%20Article%20%233%20b-%20music%20for%20films%20-%20copyright%20basics.docx#_ftnref5>17
U.S.C. § 115 (b) (2006).

[6]<file:///C:/Users/Maryellen/Documents/Indie%20Club%20Article%20%233%20b-%20music%20for%20films%20-%20copyright%20basics.docx#_ftnref6>17
U.S.C. § 115 (c)(3)(B)

[7]<file:///C:/Users/Maryellen/Documents/Indie%20Club%20Article%20%233%20b-%20music%20for%20films%20-%20copyright%20basics.docx#_ftnref7>Sound
Recording Act of 1971, Pub. L. No. 92-140, 85 Stat. 391 (1971)
(codified at 17 U.S.C. § 102.

[8]<file:///C:/Users/Maryellen/Documents/Indie%20Club%20Article%20%233%20b-%20music%20for%20films%20-%20copyright%20basics.docx#_ftnref8>17
U.S.C. § 301(c) (2006).

[9]<file:///C:/Users/Maryellen/Documents/Indie%20Club%20Article%20%233%20b-%20music%20for%20films%20-%20copyright%20basics.docx#_ftnref9>Beethoven,
Symphony No.1 in C Major and Symphony No.2 in D Major, George
Szell, The Cleveland Orchestra (Epic records)

[10]<file:///C:/Users/Maryellen/Documents/Indie%20Club%20Article%20%233%20b-%20music%20for%20films%20-%20copyright%20basics.docx#_ftnref10>Sony
remastered and released Beethoven Symphony No 1 on January 29, 2002
under its “Sony Classical Essential Classics” label. Few of the monaural
recordings of Szell and the Cleveland Orchestra have been reissued,
according to George Szell’s Myspace page.

[1] Sonny Bono Copyright Term Extension Act of 1998, Pub. L. No. 105-298,
112. Stat. 2827 (1998).

[12]<file:///C:/Users/Maryellen/Documents/Indie%20Club%20Article%20%233%20b-%20music%20for%20films%20-%20copyright%20basics.docx#_ftnref12>17
U.S.C. §304 (b) (2005).

[13]<file:///C:/Users/Maryellen/Documents/Indie%20Club%20Article%20%233%20b-%20music%20for%20films%20-%20copyright%20basics.docx#_ftnref13>17
U.S.C. §304 (a)(3)(B) (2005).

[14]<file:///C:/Users/Maryellen/Documents/Indie%20Club%20Article%20%233%20b-%20music%20for%20films%20-%20copyright%20basics.docx#_ftnref14>17
U.S.C. §304 (c)(3) (2005).

[15]<file:///C:/Users/Maryellen/Documents/Indie%20Club%20Article%20%233%20b-%20music%20for%20films%20-%20copyright%20basics.docx#_ftnref15>17
U.S.C. §304 (c)(3) (2005).

[16]<file:///C:/Users/Maryellen/Documents/Indie%20Club%20Article%20%233%20b-%20music%20for%20films%20-%20copyright%20basics.docx#_ftnref16>17
U.S.C. §304 (a)(4)(A) (2005).

[17]<file:///C:/Users/Maryellen/Documents/Indie%20Club%20Article%20%233%20b-%20music%20for%20films%20-%20copyright%20basics.docx#_ftnref17>17
U.S.C. §304 (c)(6)(A) (2005).

Mary Ellen Tomazic is an attorney in Cleveland specializing in entertainment

issue such as copyright, trademarks, contracts and licenses for musical

groups and filmmakers.
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