Music Law 101: What Musicians Should (And Need!) To Know About The Music Modernization Act

On October 11, 2018, the President signed the Orrin G. Hatch-Bob Goodlatte Music Modernization Act (H.R. 1551).  After years of calls for reform to music licensing by virtually all interests in the music industry, the MMA ushers in significant changes to the Copyright Act.

Among other things, the MMA creates a new entity—the Mechanical Licensing Collective—to “modernize” and administer the compulsory mechanical licensing process for interactive streaming services like Spotify and Apple Music.  It is crucial that musicians, in particular independent songwriters, understand the changes, the critical deadlines, and the new processes in the MMA to protect their rights to unclaimed and future royalties.

The following are the key changes created by the MMA:

Continue reading “Music Law 101: What Musicians Should (And Need!) To Know About The Music Modernization Act”

Music Law 101: Common Music Licenses

In our previous posts in our Music Law 101 series, we have covered the basics of copyright law, including the scope of copyright protection, copyright ownership, the exclusive rights of copyright, the duration of copyright protection, transfers and termination of copyrights, and copyright infringement and fair use.    In this post, we continue on the topic of copyright law and discuss common music licenses.

Like any other property, music copyrights and the individual exclusive rights thereof, can be transferred, sold, licensed, and divided among several owners.  In general, to use recorded copyrighted music, you will need permission from both the musical work owner (typically a publisher) and the sound recording owner (typically a record company).  Note, however, if you re-record a song (instead of using a pre-recorded version), permission generally is only required from the musical work owner (since you are not using someone else’s sound recording).

Following are descriptions of common music licenses:

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Music Law 101: Copyright Infringement and Fair Use

As we have previously discussed, the owner of the copyright in a work has certain exclusive rights in that work.  Anyone who violates the exclusive rights of the copyright owner is an infringer of that copyright.

To establish copyright infringement, you must establish that you own a valid copyright in the work and that:

  • The work has been copied; and
  • The copy is “substantially similar” to the protectable elements of the original work.

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Music Law 101: Transfer of Copyright and Termination

As we have previously discussed, a copyright is first owned by its author (whether individually or on a “work made for hire” basis).  Like with any other property, the author can transfer ownership of a copyright (in whole or in part as a fractional portion) to another person or party.  However, copyright law has specific rules governing such transfers. Continue reading “Music Law 101: Transfer of Copyright and Termination”

Music Law 101: How Long Does Copyright Protection Last?

Once a copyright is created, protection generally lasts for 70 years after the death of the author and in some cases 95 years from publication or 120 years from creation.  That’s a long time!  After that time, the copyright protection ceases and the underlying work becomes public domain.

More specifically, the term of copyright under the Copyright Act depends on when the work was created, as follows:

  • Works Created on or After January 1, 1978: These works are protected for 70 years after the death of the individual author.  Where there are two or more individual authors (see our earlier post on authorship and ownership), the term lasts for 70 years after the last surviving author’s death.  For “works made for hire,” the term of protection is 95 years from publication or 120 years from creation, whichever date is earlier.
  • Works Created Before but Published or Registered After January 1, 1978: The copyright term in these works is generally computed in the same way as for works created on or after January 1, 1978, provided that in no case would the term of such copyright expire before December 31, 2002, and for works published on or after that date, the term will not expire before December 31, 2047.
  • Works Created and Published or Registered Before January 1, 1978: These works are generally protected for 75 years from the date the work was published with a copyright notice or on the date of the registration if the work was registered in unpublished form.  For such pre-1978 copyrights still subsisting on October 27, 1998, Congress extended the term by 20 years, providing for a total term of protection of 95 years.

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Music Law 101: What Rights Does A Copyright Owner Have?

So you’ve already written and recorded a song and determined who owns it, but now what can you as an owner do with it?  What rights in the song do you have, that no one else does?

The owner of the copyright in a work has certain exclusive rights in that work, rights that no one else but the owner has, including the rights to:

  • Reproduce/copy the work;
  • Adapt and prepare derivative works based on the work;
  • Distribute copies of the work;
  • Perform or display a musical work publicly; and
  • Perform a sound recording publicly by digital audio transmissions.

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What Every Band Needs To Know

Last week, Brooks Pierce participated in CD Baby’s DIY Musician Conference in Nashville.  We hosted legal clinics, served as mentors,  gave out free copies of our Musician’s Legal Handbook, and presented a legal workshop on band agreements.

Our legal workshop covered important legal issues for bands to consider.  Here’ s a description of our presentation:

Music Law 101:  What Every Band Needs to Know

Most bands don’t begin their musical journeys expecting to have disputes. But good bands do go bad, and disputes over songs, band names, finances, and other creative and business matters occur regularly.  Brooks Pierce attorneys Coe W. Ramsey, Thomas Varnum and Amanda Whorton will discuss important legal issues for band members to consider, including ownership of the band’s songs and recordings, protection and use of the band’s name, rights to band income, partnerships and accounting claims, whether your band should incorporate, determining who are the “members” of your band, and whether you should have a formal band agreement among the band members and with side musicians. This insightful and relevant workshop will cover copyright law, trademark law, contract law, partnership and corporate law, and other relevant laws to help your band gain the tools it needs to avoid messy legal disputes down the road.

Copies of the slides from our presentation are available here.

Music Law 101: Who Owns the Copyright in a Song?

After your band has written and recorded a song, who actually owns the song?  This simple question does not necessarily have a simple answer.  How many people were involved in the writing process?  Were there other people involved in the recording process?  Did you hire a producer?  Did you use other background vocalists or musicians in the studio?  Did you use “work made for hire” agreements with individuals involved in the process?  Do you have a band agreement?  The answers to these and other important questions help determine who actually owns the copyrights in any given song. Continue reading “Music Law 101: Who Owns the Copyright in a Song?”

Music Law 101: Protect Your Music, Protect Yourself

We are pleased to introduce a new blog series.  Music Law 101 will be a recurring bi-weekly series consisting of posts covering a wide variety of legal topics relevant to artists, musicians, songwriters, producers, and others in the music industry.  Topics will include information on copyright law, trademark law, the right of publicity, laws relating to agents and managers, and music contract law.

With the Music Law 101 series, we intend to break down legal jargon to make the concepts useful to you as you create, perform, and distribute music.  We want to help you Protect Your Music and Protect Yourself.

What Does Copyright Law Protect?

Copyright law can be confusing.  This inaugural post provides an introduction to copyright law for musicians and addresses the often misunderstood issue of what exactly copyright law protects. Continue reading “Music Law 101: Protect Your Music, Protect Yourself”

Second Circuit Affirms “Fractional Licensing” Decision

The Second Circuit Court of Appeals ruled this week that the ASCAP and BMI antitrust consent decrees do not prohibit “fractional licensing” of songs.  Fractional licensing means that if there are non-ASCAP or non-BMI songwriters who have partial rights in a particular song, ASCAP and BMI can license only the fraction of the song attributable to the ASCAP or BMI songwriters.  The other fractional interests of the song would have to be licensed elsewhere (for example, from SESAC or GMR).

Particularly with the recent advent of Global Music Rights (GMR), music licensees (such as broadcasters, websites, restaurants, bars, retail establishments, fitness clubs, and etc.) are concerned that the ruling could lead to additional performance rights licensing organizations (“PROs”), and in turn higher collective licensing fees (and exposure to potential copyright infringement claims to the extent such additional licenses are not secured).

It’s too early to tell what the practical effect of this ruling may be in the music licensing marketplace.