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Music / Sound Recordings
Copying of Music
At present (2008), a lot of people are copying their compact discs, LP phonographs, and cassettes to MP3 digital audio files, and transfering these recordings to portable audio players. Still others copy particular songs to create “party mix” discs and tapes and home-made abridgements. In the nether reaches most removed from legality, internet users are obtaining unauthorized songs from peer-to-peer file-swapping sites.
The questions that arise are (1) is any of this legal?; (2) is it legal to copy a recording that one owns a factory-made copy of while keeping use of the copy to oneself?; (3) is it legal to share a self-made copy with a friend while holding on to the purchased copy?; (4) is it legal to sell or give away the original copy but keep the self-made copy for future playback?; (5) is it legal to upload or download copyrighted music from file-sharing sites that don’t compensate the recording companies, composers or performers?
What Amount of Music Can Be Legally Copied?
Section 107 of the Copyright Act has since 1976 permitted “fair use” where the copying involved passes four tests:
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.
Given that §107 states that “fair use” is to be considered on the basis of, among other reasons, “(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole”, it’s natural to wonder how much is too much and what portion falls within permissible limits. The law is not more specific. However, a major institution within the music industry has been more specific, and this should be taken as a warning to infringers. Virtually every radio station in the United States has contracted a “blanket license” with ASCAP (the American Society of Composers, Authors and Publishers). Stations pay one fee simply to have the opportunity to pay additional fees for each song which goes out over a station’s transmitter. However, ASCAP allows the station’s blanket license to cover the playback of an unedited excerpt of a song limited to twenty seconds. (This is why most talk-radio programs use as their themes an unedited music excerpt of twenty seconds. To edit a song or play more from it, the program must license the use or incur a use fee.) What ASCAP allows here quasi-free is twenty seconds — and that is only to their good customers who have already shelled out for a blanket license which merely established a business relationship between ASCAP and a station.
When amateur videomakers use music excerpts to score their videos (or allow music excerpts to be part of the background), and put these productions on massively-visited user-content web sites, they make it possible for the excerpt to be heard by more viewers than may typically listen to a local medium-market radio station at any randomly-chosen time. If ASCAP and RIAA are not seeking reparations and penalties from such amateur videomakers at this time, they may soon recognize that such actions are within their rights and responsibilities.
Music can be licensed from performing rights societies, and from the Harry Fox Agency, Samuel French, Inc., and others like them.
Sound Recordings: copyright eligibility
Incredibly, Congress did not extend copyright eligibility to sound recordings until 1971 (effective 1972). However, underlying rights in recordings, particularly to music (which had become eligible for copyright protection in 1831, when sheet music was the tangible medium for music), made it impossible to illegally copy a sound recording of contemporary music without violating the underlying copyright in the music; likewise, a sound recording of a speech was legally protected from copying by any copyright undertaken on the written version of the text spoken. (See the page on this web site about derivative versions for more information about underlying copyright.) Various state laws further protected sound recordings from unauthorized copying.
Congress made up for the short-shrift previously given sound recordings when it created § 301(c) of the 1976 Copyright Act, which presently reads: “With respect to sound recordings fixed before February 15, 1972, any rights or remedies under the common law or statutes of any State shall not be annulled or limited by this title until February 15, 2067. The preemptive provisions of subsection (a) shall apply to any such rights and remedies pertaining to any cause of action arising from undertakings commenced on and after February 15, 2067. Notwithstanding the provisions of section 303, no sound recording fixed before February 15, 1972, shall be subject to copyright under this title before, on, or after February 15, 2067.” (The end year had been 2047 in the 1976 version of the Act, but was revised to 2067 in legislation passed October 27, 1998.) Where the passage reads, “no sound recording fixed before February 15, 1972, shall be subject to copyright under this title”, it refers to federal copyright, and does not disturb state laws, as indicated in the first sentence. Responsible organizations such as the University of California, Santa Barbara Library’s Cylinder Preservation and Digitization Project make a point of offering only legal-to-share sound recordings from before 1930. (Some recordings are from the 19th century. The later ones are legal because the copyright holder transferred the rights to the Federal Government.) The University explains the applicable copyright considerations on a dedicated web page concerning copyrights on cylinder recordings.
Fixation of Music
When a record producer is contemplating a rerelease of a previously-existing performance of a song on which the copyrights are owned by one or more other parties, the record producer faces two payments: (1) an up-front payment for the right to affix the song within the new album (this fee covers the whole press run), and (2) per-copy fees for each song (“mechanicals”), which is an amount set by the Copyright Royalty Board under authority of the Library of Congress. When a previously-recorded song is recorded anew, even when it is altered or parodied, only the second of the above fees is at issue. This is why when 2 Live Crew was sued for unauthorized parody of the Roy Orbison song “Oh, Pretty Woman,” the courts did not have to compute the compensation due the copyright holders of the original song per each unauthorized copy sold; instead, the courts were concerned with whether a parody could be issued without permission. (The Supreme Court’s decision in this case is summarized elsehere on this web site.) Where permission is not granted, the issuers of the new version obtain a “compulsory mechanical license.”
When a pre-existing copyrighted song is paired with images in a movie or other audiovisual entertainment and released in copies to the public on DVD, VHS or other format, synchronization rights come into play. Unlike mechanicals but like the up-front payment that a record producer pays for the right to affix a song within a new album, a DVD company has to negotiate with the song copyright owner to determine the price to be paid for affixing the song in the presentation on the video program. Owners of songs can exercise their discretion to quote a prohibitive price. This explains why low-cost DVDs have been issued of no-longer-copyrighted television programs such as some episodes of Bonanza and The Beverly Hillbillies with a peculiar alteration: the familiar (and separately copyrighted) theme songs from these programs have been removed from the DVD presentations of the episodes, the viewer being subjected to mundane music in place of the originals.
For more information about music fees, including on fees not described on the present page, ASCAP has a comprehensive page on the subject.
Unpublished Sound Recordings
Old Time Radio
Before television became the dominant entertainment medium, radio formats were more than music recordings, brief news stories, and ad-libbed commentary. Dramas were written directly for radio just as they were for theater and movies, and major comedians headlined variety programs and half-hour comedy series. Most of these programs went out live, but recordings were made to facilitate delayed broadcasts in the Pacific Time Zone. Radio stations across the United States were affiliated with CBS and NBC (and, late in the radio era, ABC), yet the disc recordings made of the broadcasts generally were kept only by producers, stars, sponsors and/or the network headquarters. The heyday of significant radio drama ended long before the 1971 amendment to the Copyright Act which granted federal copyright protection to sound recordings. Even though copyright protection extends to pre-1971 recordings via state laws, “Old Time Radio” (as its present-day fans call it) is complicated by an aspect not affecting commercially-made phonograph records mass-produced for home listeners: Old Time Radio programs cannot be said to have been “published.” Radio programs were generally “performed” without meeting the legal threshold of the definition for being “published.” (For more detail about telling the difference between “performance” and “publication,” use the tree-view chart, read the illustration page on publication, and read the citations and court summaries page on performance not being publication.) Likewise, sound recordings were “fixed” but not published.
Old Time Radio programs can entail a complex array of copyright questions not only because sound recordings did not become eligible for copyright until afterward, but because the sound recording is not the only aspect of production eligible for copyright protection. Because the hour-long dramas and half-hour comedy series were scripted in advance just as are the equivalent programs on modern-day prime-time network television, the scripts are eligible for copyright as written works. In actual practice, scripts rarely were registered and deposited with the Copyright Office. (A few exceptions were some scripts for the popular Lone Ranger and Amos ‘n’ Andy series. Summaries of the applicable court decisions are on this web site on the “citations and court summaries” page for underlying copyright, for both Amos ‘n’ Andy and Lone Ranger.) However, it was not necessary that radio scripts be registered and deposited for them to enjoy copyright as unpublished works; interested parties have to recall that mere broadcast of a program constitutes performance but not publication. As long as the owners of the work do not authorize the sale or transfers of copies on a publication-level scale, there hasn’t been publication. (For more on this, readers should read the citations and court decisions page on performance is not publication, paying special attention to the case involving a 1963 news broadcast which was deemed to have been infringed by a commercially-sold phonograph record which excerpted the news broadcast without permission. This latter case is Columbia Broadcasting System and Allan Jackson v. Documentaries Unlimited.) One business has claimed to have secured rights on tens of thousands of shows. An examination of this claim is forthcoming to the exercises page of this web site.
A Reminder About Pre-1972 Foreign-Country Sound Recordings
As noted on the first page of the foreign-works section, in the passage headed “What about sound recordings?,” URAA legislation (under §104A(h)(6)(C)(ii)) implicitly points out that foreign-country sound recordings from the period before United States law began to permit copyright protection to sound recordings, were not “restored” to copyright protection through URAA: the statute provides only “subject matter protection in the case of sound recordings fixed before February 15, 1972” (emphasis added). Interested persons should read the full passage.
Index of Music Works Discussed on Other Pages
This web site is designed to assist visitors learn about specific aspects of copyright law. Therefore, it is arranged for the most part on the basis of concepts in copyright law applicable to all types of media. Music works are just as subject to rules about derivative versions, renewal procedures, and publication status as are magazines, newspapers, photographs and movies. For that reason, passages in this web site concerning the legal status of music works are scattered across the many illustrations pages and the many pages that summarize court decisions. For the convenience of the visitor to this page, an index of works and pages is provided here.
In the index below, the word “illustration” followed by a number is a link to an illustrations page. A letter “c” followed by a number (and often letters) is a link to a summary of a court decision.
“Addicted to Spuds” (1985 song) illustration04
This page provides examples on Music, so the passages on
You’ve seen the illustrations —
You’ve read the captions —
Now read passages from the law
and read what the courts decided.
Read Citations and Case Summaries on:
• Music licensing (including: music synchronization)
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© 2007,2008 David P. Hayes