Rough Seas, Uncharted Waters: The Musicianâ(TM)s Guide to Navigating Copyright Law
Edition: 1
Copyright: 2022
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Rather than be the last word in copyright law scholarship or a two-ton casebook meant for an upper level law school class, my goal in writing this is to provide a quick, readable, and comprehensible guide to the key copyright areas that affect the 21st century composer, performer, and recording artist. Rather than dotting every “i” and crossing every “t” in each of the laws contained in the 448 pages of the Copyright Law (the number contained in the hard copy of the law published by the Federal government in June 2020), I will concentrate instead on presenting a sort of a plain English “working person’s” version of the areas that are crucial for a musician’s thorough understanding of how their works are protected, and how they can avoid getting in trouble for using someone else’s protected work. My goal is to organize all of this information -- still a substantial heap of legal mumbo-jumbo -- in such a way that the reader can easily locate specific information they need. Peppered throughout each chapter you will see the abbreviation “VIP*” -- which in this context stands for Very Important Point. I will use these for especially crucial material and/or to highlight a caveat to some preceding informational gem. Finally, each chapter will conclude with a list of the central concepts discussed in the previous pages.
i. Introduction
ii. Acknowledgments
1. ORIGINS AND EVOLUTION
-- Constitutional Origins
-- An Extremely Brief History of US Copyright Law
-- The Basics: Requirements for Protection
-- Fixed in a Tangible Medium of Expression
-- Pre-emption
-- Duration of Copyright
-- The Public Domain
-- A Brief Primer On the Federal Court System & Legal Citation
-- Summary: Key Chapter Concepts
2. ENUMERATED RIGHTS
-- What Exactly Is Copyright?
-- The Statutory Monopoly Analogy
-- The Bundle of Sticks Metaphor
-- Summary: Key Chapter Concepts
3. WHO OWNS WHAT?
-- Initial Ownership
-- Joint Ownership
-- Compilations and Collections
-- Work For Hire
Employees
Commissioned Works
-- Derivative Works
-- Transfers and Recapture
-- Summary: Key Chapter Concepts
4. PUBLISHING, LICENSING AND ROYALTIES
-- What Exactly Is Publishing?
-- Mechanical Licenses
The Music Modernization Act Title I: The Mechanical Licensing Collective
The Controlled Composition Clause
-- Public Performance Licenses
-- Performance Rights Organizations (PROs)
ASCAP
BMI
SESAC
GMR
AllTrack
-- Grand Rights
-- Print Licenses
-- Synchronization and Master Use Licenses
Most Favored Nations Clauses
Library Music
-- Summary: Key Chapter Concepts
5. COPYRIGHT AND SOUND RECORDINGS
-- The Digital Performance Right In Sound Recordings Act of 1995
-- SoundExchange
-- The Music Modernization Act
The Music Modernization Act Title II: The Classics Protection and Access Act
The Music Modernization Act Title III: The Allocation for Music Producers Act
-- Summary: Key Chapter Concepts
6. EXCEPTIONS TO THE PERMISSION REQUIREMENT
-- The Compulsory License Provision
-- Fair Use
Purpose and Character of the Use
The Nature of the Copyrighted Work
The Amount and Substantiality of the Work Taken
The Effect on the Copyrighted Work’s Value
THE Transformative Work “Semi-Requirement”
-- Lenz v. Universal Music Corp.
-- Campbell v. Acuff-Rose
-- Key Chapter Concepts
7. COPYRIGHT REGISTRATION
-- How To Register a Work
-- What Types of Work Can Be Registered
-- Summary: Key Chapter Concepts
8. INFRINGEMENT AND INFRINGEMENT REMEDIES
-- What Exactly Is Infringement?
-- When Someone Infringes
-- Liability: What a Plaintiff Needs to Prove In an Infringement Suit
Proof That You own the Copyright In the Work
Proof That the Defendant Had Access To the Work
Demonstrate Substantial Similarity Between the Original and the Infringing Work
Proof That the Defendant Actually Copied the Original
-- Joint & Several Liability
-- 3rd Party Liability
-- The Digital Millennium Copyright Act
Safe Harbors and the Notice-and-Takedown System
The “No Requirement to Police Itself” Factor
The “Whack-a-Mole” Problem
-- Other Provisions
-- Damages: What a Defendant Must Pay Or Do if Found Liable For Infringement
Equitable Remedies
Actual Damages vs. Statutory Damages
Attorneys’ Fees and Costs
-- Criminal Copyright Infringement
-- Summary: Key Chapter Concepts
9. THE BERNE CONVENTION
-- Intellectual Property Treaties
Beijing Treaty on Audiovisual Performances
Brussels Convention Relating to the Distribution of Program-Carrying Signals Transmitted by Satellite
Geneva Convention for the Protection of Producers of Phonograms Against Unauthorized Duplication of Their Phonograms
Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled
Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations
WIPO Copyright Treaty
WIPO Performances and Phonograms Treaty
-- Berne Convention for the Protection of Literary and Artistic Works
Automatic Protection
Independence
National Treatment
-- Moral Rights
-- Summary: Key Chapter Concepts
10. WHAT TO DO WHEN THE COPYRIGHT LAW CAN’T SAVE YOU
-- Right of Publicity Laws
-- Trademark and Service Mark Laws
Common Law Trademark
State Trademark Registration
Federal Trademark Registration
Some Trademark Fun Facts
-- Contract Laws
-- Other Laws
-- Summary: Key Chapter Concepts
11. A HYPOTHETICAL
-- The I.R.A.C. Method
-- The Sordid Tale of Peter & Gordon
-- Summary: Key Chapter Concepts
12: IS COPYRIGHT AN ANALOG LAW ADRIFT IN A DIGITAL SEA?
Appendix 1: Copyright Duration Chart
Appendix 2: Further Reading
Jeffrey Izzo is a veteran entertainment attorney, earning his J.D. from Seattle University School of Law in 1993. In his 25+ year legal career he has represented songwriters, performers, independent record companies, authors, and filmmakers, worked as in-house counsel for independent film production companies and multi-media organizations, and is currently Mike Curb Endowed Chair of Music Industry Studies at California State University, Northridge. He is admitted to practice in the states of New York, Massachusetts, and Washington, and proud to be an ASCAP affiliate, as well as a member of the California Copyright Conference, The Recording Academy, College Music Society, The Society of Composers & Lyricists, International Association for the Study of Popular Music, Association For Popular Music Education, and Songwriters of North America.
Jeffrey is also an accomplished composer, lyricist, vocalist, pianist, guitarist, and bass player, with a Bachelor of Music in Composition from Berklee School of Music, and a Master of Music in Composition from the University of Edinburgh. He has written everything from pop songs and jingles to symphonic, chamber and choral works, but his passion is composing for musical theater.