Explaining copyright

Whenever people ask about copyright laws they often want to be given some hard and fast rules like "you can use 4 notes" or "you can use a sample up to 7 seconds|" or "it's fair use." But often copyright cases are down to down to a judge and/or jury to decide the context. So it is very unscientific and judgements can seem very tenuous and inconsistent.

Copyright is a Three Legged Stool. If all 3 legs are in position, the case for an infringement of copyright exists. If any, or all, the legs are missing, the case is weakened, and the stool falls over.

The 3 legs are:

1. Access​

• Has one composer had any way of hearing another work to allow one to be a copy?
• You notice that a famous star has a hit that sounds very much like your tune. It could be a coincidence unless you could prove you sent a demo to them, or that they heard your band at a rehearsal studio.

2. Originality​

• Is what you have allegedly copied original in the first place?

Classic blues licks and riffs are often used. They are not your original composition, and you may have copied them, but you are not infringing unless someone can prove that their work was original in the first place. An example of when this would be an infringement is when a riff is very memorable, e.g. the introduction to Johnny B Good. This copyright belongs to Chuck Berry.
Be very careful when asked to write tributes, pastiche or parody. They are all much the same and things are even worse if a parody is viewed as defamation of the artist! Then there can be damages as well.

3. Substance​

• Is what you have copied a substantial part of the original work?
• What is substantial? Very vague, and open to interpretation, but can be defined in 2 ways:

(A) Qualitative​

A distinctive hook, albeit very small, can be a qualitative copy. E.g. the opening notes of the Beatles' Yesterday.

(B) Quantitative​

If whole chunks of an original work also occur in your work, that is a copy. So, if any one of the 3 legs doesn’t hold up, the case for an infringement is lessened. However, experience shows that in most court cases, only one of the 'legs' gets referred to in any detail. The others might be referred to in passing, but their emphasis is less.

Useful Links:

My Sweet Lord	About the famous George Harrison case
UK Copyright Aid	Copyright Forum

Even one leg being present can give someone the opportunity to put a case, often a bogus case. Even very tenuous access can be grounds for a nuisance case, which because of legal aid might go to court and costs a fortune in legal fees, which will never be claimed back from the individual pursuing the claim.

E.g.I lost this tape on the bus and the artist must have found it and copied it. Or, a tape gets thrown on to a stage during a live performance and the artist is photographed catching it. So, access can be proven. Both of the above have happened, and that alone has lead to an out of court settlement, rather than having the expense of going to court.
If you are doing a sound-alike (or what you should start to call a style-alike), you to a greater or lesser extent involved in copying. Be careful. You must ask whether there is access, copying of the original and substantiality. If there is, then there is a real problem.

How far can you go? Try not to go close. Even something in the style of is dangerous. If you absolutely have to get close, muddy the edges; introduce conflicting styles, so it cannot be compared with one individual artist, track or group. Don’t refer to a single work, that is lethal. Bear in mind the qualitative factor. Don’t string together a chain of classic riffs. Change the key. Change the time signature. Don’t give it a title that implies a link to the original.

You must also consider whether the setting (visual imagery or voiceover) may suggest a closer link to the original than you intend. As well as copyright theft there is a passing off as law, by which the context may have much more bearing on the case than any off the above considerations. This can be completely outside the control of the composer if such elements are added afterwards, but the composer may still be the defendant in a legal battle.

4. Fair Use and Educational use​

These terms are often claimed as a reason to use something without specific permission, but you need to be very careful. It is often argued in a defence, but not always successfully. Some examples of possible fair use

• Critique.
• Parody.
• Educational
• News & documentary
• Research

In all of the above you need to be careful and ideally seek permission because the owner may disagree with your usage being "fair."

Some examples of fair use​

• You are making a documentary on a building site and there are brief snatches of a radio in the background, or a worker whistling a tune. These may be fair but you may need to make sure it is obvious that this is just a normal every day occurrence and that it really is all part of the background scene. It would potentially be bad to have a VoiceOver saying "listen to this cheery seamstress whistling Your are the Sunshine of my Life" or shooting a scene in a old folks home with When I'm 64 on the record player. It could be argued that these examples are contrived.
• You upload an audio file to a website along with sheet music and a backing track for people to play to. Although you might argue that is educational as you are giving tips on how to play it, educational use covers bona fide educational establishments such as school or colleges.
• You are reviewing a new Taylor Swift song and you want to point out that the autotune wasn't working so you (bravely) want to point out out why. You could include a very small snippet of the offending line. This may be defendable but be prepared to confront some very big time lawyers.

Ideally you should be prepared to show that the copyright owner's potential income was not harmed. If you made money from the use be prepared for a tougher fight. But just because you did not make money is not necessarily a defence.

Can I upload copyright music to YouTube and embed the videos on CafeSaxophone?​

Indeed you can but only because YouTube checks for copyright claims as you upload. If they allow the video to remain it means there is an agreement with the copyright owner to allow it (with or without monetisation via display ads). If the copyright owner does not consent the video will not get shown.

See our discussion about cafesaxophone and copyright.

 

[skeller047]

I find this whole situation with copyright is a perfect example of the way that our culture allows wealthy corporations to exploit the average citizen. Copyright was originally created to protect the rights of authors and artists. All too often the “market forces” create a situation where the artist / author is forced to sign away some portion of his or her rights in order to achieve wider exposure. Thus copyright becomes a weapon of the rich and powerful, often used to control other artists who wish to use all or part of another artist’s work, or in the case of music, re-imagine another composer’s work. Coltrane’s version of My Favorite Things for example - did Trane make a lot of money from this recording? Some yes, but a lot? Did Rodgers and Hammerstein also get paid? And how much? What about their estates today? Or does most of the money go to the mega corporations who control the recording catalogs and publish the songs to The Sound of Music?

Copyright has become another way to exploit the artist, rather than actually providing him or her with protection of their finanial interests. I do see increased awareness of this situation (Mary Spender’s recent video for example) but will it actually change? Streaming services, originally an attempt to circumvent large record companies (illegally), have been absorbed by them, to the detriment of the artists. I find this sickening. It was bad when I was a young, struggling musician, and it is much worse now.

(Hopefully this is not too political a statement, if so please feel free to remove it.)

 

[Tenor Viol]

As someone who has been on committees and has been the chair of various choirs, you may be surprised to find that you can hit this issue with 300 year old works written by JS Bach.

How, you may ask?

Because Novello who publish a lot of the vocal scores used by choirs etc created a new edition with a new English translation of the German text. The translation, being new, was in copyright and we had to pay Novello a fee (£100 I think) to put the words into the concert programme.

 

[PiccoloPirate]

Best to register your copyright(s).
I would hope that music majors have access to a course, that deals with copyright law. Both for the tunes and artwork that is often used.

I remember the Payola days.

 

[Pete Thomas]

Best to register your copyright(s).

This may be true for the US, but in the UK and various other countries copyright commences to exist as soon as the work is published. Registration with the collection societies is advised (in order to be paid royalties) but that is not legally a registration of copyright.

An old technique is to mail yourself the music in a sealed envelope via recorded postal service. In the event of a dispute,if this is presented in court it is good proof of the date you wrote it so any claims dated after that would be void.

I find this whole situation with copyright is a perfect example of the way that our culture allows wealthy corporations to exploit the average citizen

I agree there may be such a culture, but there is an argument that culture would not exist unless composers allowed it to happen.

Back in the day artists had little choice if they were to get their music out there and earn anything from its exploitation. Especially some black artists eg. Richard Berry who sold (gave) all rights to Louie Louie for $100 in order to afford a wedding. He eventually won a lawsuit to get his rights back.

Things got a bit better towards the end of last century but then this century a culture arose whereby both performance recording and composing became something open to all, not just those artists lucky enough to get a recording or publishing contract. It became possible to record quality music in a "home" studio. Artists no longer relied on the big corps to finance (and recoup from huge royalty shares).

It then all changed again when streaming and subscription services for audio sync became the norm. Trust me, I know, as I previously had a reasonably lucrative career as a composer. The split with my publisher is 50/50 which you might think is bad, however in this case the publisher was very good at exploiting the works.

Companies such as Audionetwork sprang up offering so-called royalty free music to production companies for a subscription and relied on not paying composers a split for licensing as in the old days. My publisher (Universal) decided to follow suit (wisely for them) and offered me the chance of accepting a buyout on mechanical royalties. I politely declined and retired.

 

[PiccoloPirate]

In the USA, an original work of music/art has a copyright as soon as it is created.
Registering it, is the next step for protection.
Publishing or preforming, prior to registering, has different rules that apply.

Artists in need of money, make compromises.

 

[Pete Thomas]

In the USA, an original work of music/art has a copyright as soon as it is created.

I think that is everywhere. But registering. (in the US) and publishing (elsewhere) are probably the only ways to protect along with the old recorded mail envelope or maybe a bank vault with officially logged access dates.