Under the Copyright Act, the copyright owner is entitled to several remedies. Along with the damages suffered, the writer can obtain attorney's fees and court costs. In some instances, the writer can obtain profits of the infringer and an injunction. However, in order to take advantage of the full remedies under the Copyright Act, the song must be registered with the U.S. Copyright Office. Moreover, it is important to not delay in bringing the infringement suit once the infringement is discovered. Otherwise, the suit might be barred by what is known as the "statute of limitations". The party sued for infringement may raise certain defenses which are exceptions to copyright infringement. For instance, the doctrine of "fair use" allows a work to be copied if there is no "profit" motive (e.g., for education, research, news). Another legitimate defense is that the new work is a parody of the original work.
Although copyright registration is not mandatory under the Copyright Act of 1976, songwriters are encouraged to officially register their works because if an infringement situation arises, it will be easier to recover damages.
Ben McLane Esq
benmclane.com
Monday, February 28, 2011
Thursday, February 24, 2011
Music Business/Law Tips - "Infringement" (Part 1)
Many songwriters are concerned that someone may steal their song and make a profit. If such an act occurred, it would be an instance of "copyright infringement" and the original writer would be entitled to relief. This article will explain how a copyright is infringed upon and what a writer can do to protect his or her works.
Under the 1976 Copyright Act, the copyright owner (i.e., the creator of the song), has certain exclusive rights: to reproduce, to distribute and to perform the work. Any or all of these exclusive rights may be transferred to third parties through an "assignment" or "exclusive license". Each separate owner of an exclusive right can sue for copyright infringement.
The most common type of copyright infringement occurs where a commercially available song is, or seems to be, very similar to another pre-existing song. In order to sue for infringement here, the original writer must show three things: (1) ownership of the song infringed upon, (2) the infringer had "access" to the original song, and
(3) "substantial similarity" between the two works. Infringement can also occur when someone uses a song without permission/license and when a record is "pirated" or "bootlegged".
[part 2 next week]
Ben McLane Esq
benmclane.com
Under the 1976 Copyright Act, the copyright owner (i.e., the creator of the song), has certain exclusive rights: to reproduce, to distribute and to perform the work. Any or all of these exclusive rights may be transferred to third parties through an "assignment" or "exclusive license". Each separate owner of an exclusive right can sue for copyright infringement.
The most common type of copyright infringement occurs where a commercially available song is, or seems to be, very similar to another pre-existing song. In order to sue for infringement here, the original writer must show three things: (1) ownership of the song infringed upon, (2) the infringer had "access" to the original song, and
(3) "substantial similarity" between the two works. Infringement can also occur when someone uses a song without permission/license and when a record is "pirated" or "bootlegged".
[part 2 next week]
Ben McLane Esq
benmclane.com
Tuesday, February 8, 2011
Music Business/Law Tips - "Independent Promotion" (Part 2)
Promoters can be found in most large cities in the yellow pages under record promotion or via an internet search. Call and make an appointment to play the record for the promoter. A genuine promoter will not work a record unless they believe in it. The artist should check references and the track record of the promoter.
Once the artist has located the right promoter, a contract should be entered into. The two most important points to cover are the fee and the duties of the promoter. Although the fees vary depending on the type of music and scale of the campaign, a good promotion person could require around $300-$500 per week minimum (college radio campaigns may be less); a proven hit maker may charge more. The promoter will want bonuses built into the contract to be triggered by certain happenings, such as having the record chart, entering the top ten, and hitting number one. Moreover, the promoter's expenses (i.e., phone, mail, travel) will have to be paid by the artist. The artist should require that the promoter specify the number and type of stations he or she will be contacting.
Finally, the artist should not forget that it is meaningless to hire a promoter if the record is not going to distributed in some way; otherwise, the listening audience cannot buy the record and this would defeat the entire purpose of generating airplay.
Ben McLane Esq
benmclane.com
Once the artist has located the right promoter, a contract should be entered into. The two most important points to cover are the fee and the duties of the promoter. Although the fees vary depending on the type of music and scale of the campaign, a good promotion person could require around $300-$500 per week minimum (college radio campaigns may be less); a proven hit maker may charge more. The promoter will want bonuses built into the contract to be triggered by certain happenings, such as having the record chart, entering the top ten, and hitting number one. Moreover, the promoter's expenses (i.e., phone, mail, travel) will have to be paid by the artist. The artist should require that the promoter specify the number and type of stations he or she will be contacting.
Finally, the artist should not forget that it is meaningless to hire a promoter if the record is not going to distributed in some way; otherwise, the listening audience cannot buy the record and this would defeat the entire purpose of generating airplay.
Ben McLane Esq
benmclane.com
Tuesday, February 1, 2011
Music Business/Law Tips - "Independent Promotion" (Part 1)
Once an artist has gone to the time, trouble and expense of producing and manufacturing/digitizing an independent release, it is usually the case that the artist's goal is to earn exposure for the record, which translates into sales, and, hopefully, a career. Support from radio is key in order to make the masses aware of a new record. Unfortunately, obtaining radio play is difficult and competitive. Hence, an artist should budget for the services of an independent promoter ("promoter").
In order to compete with the major labels, the artist must be able to take the steps that a major label would take in order to promote a record. Since an independent artist does not have a promotion staff to service the hundreds of appropriate radio stations across the country necessary for an effective radio promotion campaign, a promoter is the vehicle to generate airplay. The promoter can gain the necessary radio "adds" for several reasons that the artist cannot, because they: (1) have years of experience, (2) have established relationships with program and music directors, (3) know how to properly pitch a record, and (4) know who to approach with the pitch.
Because a promoter is not cheap to employ, smaller labels and artists will generally just hire the promoter to work the record in a particular region. If airplay becomes significant in that region, often the record will then take on a life of its own and other regions will want to play the record. The hard part is developing the first important adds.
[part 2 next week]
Ben McLane Esq
benmclane.com
In order to compete with the major labels, the artist must be able to take the steps that a major label would take in order to promote a record. Since an independent artist does not have a promotion staff to service the hundreds of appropriate radio stations across the country necessary for an effective radio promotion campaign, a promoter is the vehicle to generate airplay. The promoter can gain the necessary radio "adds" for several reasons that the artist cannot, because they: (1) have years of experience, (2) have established relationships with program and music directors, (3) know how to properly pitch a record, and (4) know who to approach with the pitch.
Because a promoter is not cheap to employ, smaller labels and artists will generally just hire the promoter to work the record in a particular region. If airplay becomes significant in that region, often the record will then take on a life of its own and other regions will want to play the record. The hard part is developing the first important adds.
[part 2 next week]
Ben McLane Esq
benmclane.com
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