Copyright Laws

[Mordecai]

Okay, maybe this isn't the right forum. I couldn't determine a better one (tell me if there is for the future). But anyway...

If an artist you are recording, is recording material that he/she has ripped off from another artist, can you as the engineer be held liable? How much does the engineer have to be concerned about what your client's are doing?

[Jules]

I dont think so....

But I am not a lawyer,

There are VERY CLEAR statements in producer agreements that need to be signed off on that state that the producer HAS checked and received "clearance" for any use of any music samples....

In all my years I have never heard of a technician / engineer getting into any trouble over copyright issues (except for pirate CD duplicators)

Interesting question!

Anyone?

[Jules]

Bring it on!

Discuss!

[Bob Olhsson]

I HAVE!

SOP in an infringement suit is to sue everybody involved, artist, producer, studio, engineer, mastering, pressing plant, etc. A lawyer can probably get you off in most cases but it isn't going to be cheap!

You can't just change a song without permission unless it's a parody of something well-known.

Adding a writer and/or making the artist a publisher or co-publisher as a condition of doing the song is a pretty common thing for big stars when the song is good enough but still not something they wouldn't want to take a chance on somebody else doing by making that demand.

[kittonian]

I have been asked this question a number of times by clients (can I use this portion of a song in the recording, or play basically the same song and just change some lyrics, etc.?). My standard answer is I will not record any copyrighted material that the artist doesn't own unless the artist bring me written permission from the copyright holder that I can keep on file here at AudioLot in case anything legal occurs down the road.

Don't take any chances. One session isn't worth the hassles and expenses of a lawsuit.

[C.Lambrechts]

straight covers 1 to 1 are usually ok. Local departments of publishers can usually decide on those.

1 to 1 means copy the entire structure of the song from beginning to end / lyrics too.

Once you change 1 chord or 1 word it is no longer 1 to 1 and you need permission from whoever is in charge of the copyright ... usually the publisher.

most covers are accepted, even if you change little things in it ... for example the original lyrics might be written by a man and the cover is done by a female artist ... you want to change 'boy' into 'girl' ... you need permission to do so.

As for copying the music bed and putting another melody on it ... same rule ... ask first.


I'm talking about reprogramming / re recording things ..... sampling parts of music is yet another and mucho more complicated debate ...


just some thoughts which might be relevant.

[Ted Nightshade]

Originally posted by C.Lambrechts
straight covers 1 to 1 are usually ok. Local departments of publishers can usually decide on those.

1 to 1 means copy the entire structure of the song from beginning to end / lyrics too.

Once you change 1 chord or 1 word it is no longer 1 to 1 and you need permission from whoever is in charge of the copyright ... usually the publisher.

most covers are accepted, even if you change little things in it ... for example the original lyrics might be written by a man and the cover is done by a female artist ... you want to change 'boy' into 'girl' ... you need permission to do so.

As for copying the music bed and putting another melody on it ... same rule ... ask first.


I'm talking about reprogramming / re recording things ..... sampling parts of music is yet another and mucho more complicated debate ...


just some thoughts which might be relevant.

Is this really so?! So if the original says "isn't" and the cover says "ain't", it's a whole new ball of wax, legally speaking? Or if the cover puts in a pickup chord to the bridge? I would think session piano players would be in quite a pickle- so often a little harmonic reinterpretation or an added pickup chord is all just part of playing a song...

It surprises me because very, very rarely do I hear a song covered without being simplified or some of the lyrics missed or substituted. To do so is merely human... not that humanity is a big concern of the law.

[Ted Nightshade]

Even if the covering artist skips a verse, or what about a fade-out!?! Or doesn't go to the bridge? It seems like you could do a 1 to 1 slavish imitation, and then break the law in editing! Or enter a grey area anyway...

[Ted Nightshade]

OK- maybe a less incredulous question- do you have to get permission to do a specific change, and it's only good for that change, or can you just get permission to do it with "minor changes" or whatever and have a little flexibility?

I'm trying to imagine the implications of all this- say for a jazzy type of thing, where chord substitutions, and different ones each time, happen regularly, or one of the million singers who takes a little liberty with the text...

[MattiMattMatt]

I believe doing a cover of a song allows you to arrange it, which covers all of the variations you describe. After all, the only true 1 to 1 copy would be the original itself.

Incidentally, after someone has recorded a song, anyone may record a cover of it. Permission is not required (in the U.S.).

You are also allowed to "parody" the song without paying any liscence fee, as someone pointed out. The seminal case was 2 Live Crew's version of Orbison's "Pretty Womem" which was an XXX version that the supreme court allowed under the Parody Exemption of the Doctrine of Fair Use.

As far as I know, engineers would not be liable for the copyright infringement of composers/artists/producers. Legally, I think it's like hiring a secretary to type a plagerized manuscript. The work-for-hire secretary would not be liable.

As for songwriting credits -- I think they're often not what meets the eye. I have even heard of instances where artists will pay a songwriter X dollars for a song, and 10 times that amount if the artist can be included amoung the songwriters. For some big artists, it's just the price of doing business with them. They sing the song, they are to be considered a songwriter, even if they haven't written a note.

[Mordecai]

I agree, any cover should be okay. Would a parity be like what Weird Al does? Does he need permision? And to change parts of a song requires a mechanical license right?

[C.Lambrechts]

theoretically a 1/1 cover means that you stick to chords / structure (meaning original order in which verse / bridge / chorus appears) / and exact original lyrics.


from there on it's a thin line .... of course interpretation and arrangement often make that line thick. anyone, including me who has ever done a cover has at some point changed a note or two or even more / added a variation on a chord (maj to maj6 for example) etc etc ...

but it remains a thin line ... in pure theory you can not add or change chords, nore change lyrics ... however small the changes may seem ....

in a discussion situation one will have to determine wether it is part of the arrangement or wether it is additional 'composition' ... who will tell .... in 99/100 situations you will not get any rights for that additional 'composition' anyhow ... especially not going through big publishers.

I've done plenty of covers as a producer or arranger ... with all of them I would ask written permission first.

Theory and practice walk different ways in real life .... as long as the original copyright owners don't object to your 'interpretation' I suppose your fine .... once lawyers get involved .... hell it's their job to find reasons to go to court.

I wonder what's easier .... getting OJ declared innocent , asking zillions of $ compensation because you burned yourself spilling a hot cup of coffee over your own legs at mcdonnalds .... or proving that the original intention of your composition was affected because they changed boy into girl.


I don't call it paranoid to ask for permission ... I call it being aware.

[Bob Olhsson]

Engineers and producers technically own an interest in the sound recording.

None of this stuff means anything unless the recording becomes a big hit. IF that happens, everybody's technical ass had better be covered unless they can afford to pay a lawyer to 'splain all the technicalities to a judge!

I'm pretty sure that a song, for copyright purposes, is just a melody and lyrics.

[Medicine Dog]

I think the point that most everyone is missing is that, no matter how much of a song you use - be it a sample or a full 1 to 1 cover - you need to obtain a mechanical license from the publisher(s). Unless it's a public-domain song, you're going to need a mechanical before you can embody the recording on a CD, cassette, etc., and sell it somewhere.

Bob - I'm not sure how engineers can be considered to own an interest in a sound recording, unless they're sharing in royalty payments like a Producer normally does. Engineers are generally considered "work for hire" (along with the session players, etc.) and there's no interest in the song other than to make sure it comes out as good as it can

And as for "hit" or not - it doesn't matter. If you use someone elses copyrighted material for ANY purpose, you need a license from the publisher of the work.

[e-cue]

Originally posted by Bob Olhsson
Engineers and producers technically own an interest in the sound recording.

None of this stuff means anything unless the recording becomes a big hit. IF that happens, everybody's technical ass had better be covered unless they can afford to pay a lawyer to 'splain all the technicalities to a judge!

I'm pretty sure that a song, for copyright purposes, is just a melody and lyrics.

Definately, but it's not a one way street.

If a Beatles song is ripped off by the Widget Garage Band and the Beatles sue, and win, does the studio, engineer, mastering, pressing plant, etc. that worked on the Beatles track see any of that money?

[Ted Nightshade]

I hope to see this discussion keep up for a while, things seem to be starting to crystallize a bit...

there's also the theory that no contract is worth a damn unless you have the legal muscle to enforce it... probably you need the legal eagles either way, if push comes to shove?

[mrjones]

Just wanting to chime in here, on your Coyright discussion, from a songwriters POV. (apologies if you guys know this stuff already) The copywriter owner of a work, has the “EXCLUSIVE” right to exploit said work. Copyrights stay in effect throughout the life of the author plus 75 years after their death. (although there are rumblings to extend this, thank you Walt Disney Co.) After 75 years, they fall into “Public Domain”.

As for changing music or lyrics in a copyrighted song and recording it again; This action does not change the copyright ownership of the song. Copyright holders also hold the copyrights to all “DERIVED” works or songs that are born from their original creations. Changing the lyrics, chords or structure of the song makes no difference. All are considered “Derived Works” and the original author’s copyright stands.

This came in to play a few years ago during the Superbowl. The Verve (Richard Ashcroft and Co.) from the UK. had a big hit called “Bitter Sweet Symphony” (Urban Hymns) which was derived from a Rolling Stones song. Even though Richard Ashcroft wrote new lyrics and made an entirely new recording, the copyright of that song belongs to Mick Jagger & Keith Richards.

This was a huge breakout hit for The Verve, largely because of it’s orchestral introduction. Which attracted the attention of a certain car company in the US who wanted to use The Verve’s version of the song, to sell cars during a Superbowl TV spot. (the lush intro of Richard Ashcrofts version featured prominently)

However, to make this happen they had to clear the song with The Rolling Stones who of course got the royalty payments because they owned the "Derived work", plus they had to pay a nice little (sell-out) “FEE” to Richard Ashcroft to use “his” version of the song, which included the orchstral introduction.

Clear as mud?

Peace,

Hannibal

[sharpeleven]

Originally posted by Medicine Dog
I think the point that most everyone is missing is that, no matter how much of a song you use - be it a sample or a full 1 to 1 cover - you need to obtain a mechanical license from the publisher(s). Unless it's a public-domain song, you're going to need a mechanical before you can embody the recording on a CD, cassette, etc., and sell it somewhere.

Bob - I'm not sure how engineers can be considered to own an interest in a sound recording, unless they're sharing in royalty payments like a Producer normally does. Engineers are generally considered "work for hire" (along with the session players, etc.) and there's no interest in the song other than to make sure it comes out as good as it can

And as for "hit" or not - it doesn't matter. If you use someone elses copyrighted material for ANY purpose, you need a license from the publisher of the work.

True. You can try to negotiate a mechanical licence with the publisher. If they decline you can still cover the song on your record as long as you pay them a flat fee of 7 cents (?) per song per record sold (if I remember correctly....) which is a lot of money...

But this only applies if the song has been already recorded at least once. The writers have the right of 'first use'.

You can't change a the arrangement substantially or change lyrics without permission by the writer/publisher. tutt

[jbuntz]

I'm not sure how relevent this is to the rest of this discussion, but a bank I did a jingle for actually bought the copyright to the Brady Bunch theme song. Apparently if you don't use the lyrics it's only $75? It seems like it should cost more...

[Medicine Dog]

Originally posted by sharpeleven
True. You can try to negotiate a mechanical licence with the publisher. If they decline you can still cover the song on your record as long as you pay them a flat fee of 7 cents (?) per song per record sold (if I remember correctly....) which is a lot of money...

Actually, the negotiated rate is usually $.08 per copy sold. If the publisher declines you a mechanical, though, you pretty much have no recourse. If you use the song on your own without permission you're inviting all kinds of grief - Even if you do send them $.08 a copy for each one sold.

If you can't deal with the publisher directly, or have many publishers to deal with, The Harry Fox Agency is a good place to deal with. They can negotiate and issue licenses on behalf of the publisher.

[MattiMattMatt]

Originally posted by Medicine Dog
Actually, the negotiated rate is usually $.08 per copy sold. If the publisher declines you a mechanical, though, you pretty much have no recourse. If you use the song on your own without permission you're inviting all kinds of grief - Even if you do send them $.08 a copy for each one sold.

If you can't deal with the publisher directly, or have many publishers to deal with, The Harry Fox Agency is a good place to deal with. They can negotiate and issue licenses on behalf of the publisher.

As I understand it, once the song has been recorded at least once, anyone is legally entitled to record it -- in other words, the publisher cannot prohibit you from recording a cover. The worst case scenerio is that you must pay the highest liscencing rate by default, as you describe.

I apologize if I'm mistaken, but this is how I learned it.

-MattiMattMatt

[MattiMattMatt]

Quick follow-up:

The above pertains to the U.S. European countries such as France give more control to copyright owners over what happens to their work.

[MattiMattMatt]

Originally posted by Mordecai
I agree, any cover should be okay. Would a parity be like what Weird Al does? Does he need permision?

Exactly.

The purpose of copyright law is to encourage new work, because our lives are better when there is more art in the world. Copyright law works because it enables artists to get paid for what they do, providing a profit incentive for them to create new stuff.

Therefore, having to pay someone for the right to re-record their songs is added incentive for new work because it provides a potential source of future profit.

However, there are four exceptions in which you don't have to pay the creator of the original work a damn thing, known collectively as the Doctrine of Fair Use. The idea is that these four exception are so important, that they trump the importance of the (lost) profit for the copyright holder.

One of the four circumstances in which you're allowed to use copyrighted material scott free is for parody, like Wierd Al. This is also why Saturday Night Live can exist. You are legally entitled to make fun of something without having to pay the person who created it, or ask for their permission. Thus, Wierd Al doesn't need permission, and doesn't have to pay the people he makes fun of.

It's kind of a cool thing. Who would've thought that a bunch of crusty old lawyers would see the value in a good joke.

[SaxonSound]

Here's an excerpt from a paper I wrote for my Legal Issues in the Music Industry class. It deals with two pieces of US case law, contributory infringement, and vicarious infringement

To be liable for contributory infringement, the defendant must meet two conditions. Firstly, the defendant must "know, or have reason to know of [the] direct infringement" (Adobe Systems Inc. v. Canus Prods., Inc., 173 F. Supp. 2d 1044, 1048 (C.D. Cal. 2001)). Secondly, the defendant must engage in "personal conduct that encourages or assists the infringement" (A & M Records, Inc. v. Napster, Inc., 114 F. Supp. 2d 1019).

Liability for vicarious infringement may be found if the defendant "Has a right and ability to supervise the infringing activity and also has a direct financial interest in such activities". (Fonovisa, Inc. v. Cherry Auction, Inc., 76 F.3d 262)

(end quote)

I looks to me like engineering material which you know to be infringing could make you liable for vicarious infringement, and possibly contributory infringement.
How likely is it that you will be named in a lawsuit (should one be brought at all)? No idea....

Disclaimer: I'm not a lawyer, I'm just a dumb kid who has taken some classes dealing with copyright law.

[Exmun]

Originally posted by SaxonSound
I looks to me like engineering material which you know to be infringing could make you liable for vicarious infringement, and possibly contributory infringement.
How likely is it that you will be named in a lawsuit (should one be brought at all)? No idea....

Disclaimer: I'm not a lawyer, I'm just a dumb kid who has taken some classes dealing with copyright law.

Saxon, you almost got it. If you record a song that infringes a copyright you MAY be liable for contributory copyright infringement--this is assuming you know of the infringing activity, induce it, or cause the infringing activity to take place.

Vicarious copyright infringement applies to "employers" or people who exercise "control" and/or "direction" over those who may be infringing a copyright or contributing to infringement.

As strange as it sounds, anyone can be found liable for contributory infringement IF they know or have reason to know that of the infringing activity. I haven't ever seen a case involving an engineer (it's rare), but Producers have certainly gone down for contributory...advertising agencies, radio stations, packaging agents. This is when they KNEW or HAD GOOD REASON TO KNOW of the infringing activity (like really suspcious circumstances ... like outrageously lower prices for comparable goods ... kind of like a Rolex watch for $40). See Screen Gems-Columbia Music, Inc. v. Mark Fi Records, Inc., 256 F. Supp. 399 (S.D.N.Y.1966) and other related cases.

There's a lot I have to clear up on this thread, but I'll do it in another email.

[Exmun]

Originally posted by Mordecai
If an artist you are recording, is recording material that he/she has ripped off from another artist, can you as the engineer be held liable? How much does the engineer have to be concerned about what your client's are doing?

You didn't provide enough info. The quick answer = it depends. What do you mean by "ripped"? Anyone can record a cover of a previously published song without explicit permission. Given those circumstances, there's no liability, because it is not infringement to cover a previously published song ... and since the engineer will not be around for the "sale" of the record, the engineer cannot be said to have knowledge of the infringement if indeed the theiving artist sells the CD without compensating the copyright owners through the compulsory mechanical license.

...but if you know or have good reason to know of infringement, that's a different story.

[Exmun]

Originally posted by MattiMattMatt
You are also allowed to "parody" the song without paying any liscence fee, as someone pointed out. The seminal case was 2 Live Crew's version of Orbison's "Pretty Womem" which was an XXX version that the supreme court allowed under the Parody Exemption of the Doctrine of Fair Use.

Don't mean to be disagreeable, but I don't think that's exactly true. A lot of folks seem to think that the 2 Live Crew case that you mentioned (Campbell v. Acuff-Rose Music, 510 U.S. 569 ) means that you can parody copyrighted work and not pay. It isn't true. The 2 Live Crew case only stands for the proposition that the 2 Live Crew song is capable of being a parody. The Supreme Court never ruled that it was, indeed, a parody. The only question they answered was whether the court below (the 6th Circuit Court of Appeals) applied the right test and came to the correct "legal" conclusions ... as opposed to "factual" ones... a fine but important distinction. But this never dealt with the issue of "payment." The lawyers for 2 Live Crew were not trying to avoid paying a mechanical royalty--they were trying to prevent 2 Live Crew from paying statutory damages for willfull copyright infringement. Which today is the greater of $150,000 per infringement OR "actual profits." In fact, I believe the parties settled quietly after the case was remanded (sent back) to the lower courts.

So here's the short story. A parody is so clearly based on the original song that it is automatically copyright infringement. The fair use defense does NOT deny that the new work "infringed". Fair use just says that my use is permitted by the first amendment (as a commentary on or ridicule of the original song). In essence the fair use defense prevents the writer of the parody from facing the proscribed penalties for copyright infringement set by law (e.g. $150,000 for willful infringement). It DOES NOT prevent the parody writer from having to pay the statutory mechanical rate OR negotiate a lower mechanical license, given the "new" parodic material.

Fair use is a "defense" NOT a "justification." An affirmative defense says "I admit fault, but I have a good excuse" a justification says "what I did under the particular circumstances was not against the law" --- compare "duress" (a defense--fault, but a free pass) to "self-defense" (a justification--no fault). So even if you parody a song, you still gotta pay. If you're smart you would negotiate a lower rate than the statutory rate, but you still gotta pay "something" to the original work.

[DigitalAnalog]

There are distinctions within the bundle of rights that are bestowed by Copyright Law that might be of interest. Here's a simplified outline of those rights most applicable to the music recording industry.

When filing with the library of Congress, form PA registers the copyrights for the lyrics and melody of a song [not the title however]. This is what a songwriter or music publisher will typically register.

On the other hand, a record producer or record company will file form SR which registers the music sounds encoded within the recording. Since this involves all the music as well as the words and lyrics, this registration provides the holder to take legal action when samples of the recording are infringed or used without permission.

Performing rights roylaties are distributed to copyright holders from the broadcasting of any recorded or performed version of the song, by any artist with any arrangement. These royalties are collected by BMI and ASCAP and SESAC and distributed to their writer/publisher affiliates.

Mechanical royalties are paid to the copyright holders from moneys collected by Harry Fox Agency, American Mechanical Rights and other agencies that grant compuslsory licenses and collect money for every piece of product [CD and cassette etc.] distributed and sold.

[Exmun]

Originally posted by Bob Olhsson
Engineers and producers technically own an interest in the sound recording.

Bob,
I'm not sure what you mean. For all practical purposes, engineers are not vested with any creative rights for copyright purposes. They can, however, be sued for contributory copyright infringement if they knowingly contributed or assisted in willful copyright infringement. Beyond that I'm not sure what you're getting at. As far as producers ... it depends. It depends on their contributions, whether the contributions were creative, adding to the melodic or lyrical content. If not, there is generally no copyright status. They also can be liable for contributory and (possibly) vicarious copyright infringement... but again... I don't know what you're getting at.

[Exmun]

Originally posted by sharpeleven
You can try to negotiate a mechanical licence with the publisher. If they decline you can still cover the song on your record as long as you pay them a flat fee of 7 cents (?) per song per record sold ...

The fee now is 8.5 cents for songs under 5 minutes. See http://www.harryfox.com/pressrelease.html?id=152


You can't change a the arrangement substantially or change lyrics without permission by the writer/publisher. tutt [/QUOTE]

Changing arrangement? Yes. Changing the lyrics substantially ? No ... unless you're doing a parody of the original. One of the bundle of rights a copyright owner gets is the right to control/approve derivative works (i.e. "substantial" changes that merit the creation of a new work). See 17 USC section 106(2).