Saturday, October 26, 2013

Music Business/Law Tips - "Poor Man’s Copyright”

Emailing or snail-mailing yourself a copy of your music (or other creative work) is what many people refer to as a so-called "poor-man's" copyright. However, the "poor man's copyright" has never been a part of the US copyright law, nor is it recognized by law. Hence, it's not a substitute for formal copyright registration. Technically, a copyright is created under the law when an original creative work like a song is embodied in a fixed format, such as CD or a lyric sheet. However, by taking the extra step of timely registering the song/copyright with the US Copyright Office, the creator gains extra important rights/benefits, the biggest one being the ability to bring a copyright infringement lawsuit for statutory damages which can be up to $150,000 per infringement, plus attorneys fees. None of these benefits apply to a “poor man’s copyright”, so its best to spend a few extra dollars to protect your valuable rights. Ben McLane Esq

Thursday, October 17, 2013

Music Business/Law Tips - "De Minimis/Fair Use vs Samples"

A common myth is that one can sample a “tiny piece” (i.e. de minimis) of someone else’s music without permission. This is not legally correct. When someone samples any portion of someone else's music without proper authorization, it gives rise to a cause of action for copyright infringement. The copyright owner has every right to sue, and if they timely registered their copyrights, the statutory dollar damages could be quite high. If one wants to obtain the rights to sample existing music properly, one has to clear the rights to the music composition copyright; and, if one wants to use the sound recording, then the sound recording copyright has to be cleared as well (both copyrights). This can be a real pain and sometimes expensive. As for the related concept of "fair use," it's a defense that might be valid to defend against copyright infringement, but its difficult to prove. Sampling under fair use must be for the strict purposes of criticism, comment, news reporting, teaching, scholarship, or research. A court will weigh the following factors to evaluate whether there was an actual fair use: (1) the purpose & character of the use (i.e., was it for profit or education?); (2) whether the work been published already; (3) the amount and substantiality used; and (4) the harm done to the original copyright owner by the competing work. Bottom line: do not sample without securing the proper rights first. More often than not, music sampling is not protected by fair use; and even if it is, one still has to pay to prove/defend the argument in court. Best solution: create original music. Ben McLane Esq

Sunday, October 6, 2013

Music Business/Law Tips - "Beware Samples In Music"

Uncleared samples are copyright infringement even for free promo uses. The owner of a copyright controls 6 exclusive rights: (1) The exclusive right to reproduce the work; (2) The exclusive right to distribute the work; (3) The exclusive right to perform the work; (4) The exclusive right to display the work; (5) The exclusive right to make derivatives (copies) of the work; and (6) The exclusive right to digitally transmit the work. Hence, if you incorporate uncleared samples of someone else’s copyright into your music - even if you don't plan on selling your music/mixtapes (but just distribute them online/offline for free) - it's still considered copyright infringement. Whether its shared for free physically or online, the law is that only the copyright owner has the right – or to give a third party permission – to reproduce, distribute, and make derivatives of their music. While some new/unknown artists might not get upset if they see that you used an uncleared mashup/mixtape/sampled song or master recording of their music and shared it for free, they absolutely have the right to prevent you from doing so/stop you. Clearly, a famous artist will take action and may seek damages. Bottom line - always get permission to use someone else’s music. Ben McLane Esq