Use of Music in Media Productions Rick Morris, J.D., LL.M. Associate Professor R/TV/F and...

Use of Music in Media Productions

Rick Morris, J.D., LL.M.Associate Professor

R/TV/F and Communications StudiesNorthwestern University

[email protected]

Definition of Copyright

Copyright arises when a work of authorship in any tangible medium of expression is fixed in a tangible form. This can be by writing, recording, digital storage or other means. Ideas, procedures, processes, systems, methods of operations, etc. are not copyrightable. 17 U.S.C.S § 102.

Requirement of Fixation

In order to be copyrighted, a lecture or presentation must be fixed in a tangible form. This would usually happen via recording, preparation of lecture notes, etc.

Ideas are not copyrightable

Ideas are not copyrightable; however, expressions of ideas are copyrightable. For example, the idea that a medical procedure might be effective is not subject to copyright. However, the lectures, medical journal articles, and other communications explaining the procedure are copyrightable. Procedures, processes, systems, etc., to the extent that they meet the legal requirements, may be patentable.

The Rights of a Copyright Owner

Once something is “copyrighted,” what rights does a copyright owner

have?

Rights in a copyrighted work§106 Exclusive Rights in Copyrighted works

Subject to sections 107 through 120, the owner of copyright under this title has the exclusive rights to do and to authorize rights to do and to authorize any of the following: (summarized)(1) make copies of the copyrighted work(2) to prepare derivative works based upon the copyrighted work;(3) to distribute the copies of the copyrighted work to the public by the sale or other transfer of ownership, or by rental, etc.(4) to perform the copyrighted work publicly;(5) to display the copyrighted work publicly; and(6) in the case of sound recordings, to perform the work by means of a digital audio transmission. 17U.S.C.S §106.

Limitations on Copyright

There are a number of limitations on copyright, including provisions for libraries, for direct classroom teaching by a nonprofit educational institution, for cable companies under limited circumstances, for ephemeral recordings, etc. An important limitation for your consideration is Section 107, Fair Use.

§107 Limitations on exclusive rights: Fair use

Notwithstanding the provisions of Sections 106

and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered include -

The Four Factors of Fair Use

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

Fair Use Applied

Some Fair Use Cases

Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539 (1985)

In an opinion by Justice O'Connor, the court held as not a fair use, the excerpt of only 300 words from the autobiography of Gerald Ford The Nation magazine used part of the book, the most important part, containing Ford’s thoughts when he pardoned Nixon. The Court found that The Nation had used, for blatant commercial purposes, important original thoughts of the author, and this use had a tangible effect on the market for the original and the defendant's claim of fair use was not allowed.

New York Times v. Trisani, U.S. Supreme Court, June 25, 2001

Freelancers who sold material to the New

York Times successfully sued to protect their copyrights against re-publication in online databases. The Court found for the authors saying that the New York Times had not obtained permission for the re-publication of the work in an online mode.

Music “sampling” is not Fair Use

Music sampling has been held to not be Fair Use even though the sample is a small portion of the whole work. The lead case involves rap artist Biz Markie sampling a portion of Gilbert O’Sullivan’s song Along Again, Naturally. Grand Upright Music vs. Warner Bros. 780 F. Supp. 182; 1991

A&M Records v. Napster, 2001 U.S. App. LEXIS 5446 (9th Cir. Feb 12, 2001),

Copyright infringement even if you don’t actually “touch” the material: Napster provided a database and software that permitted users to exchange files by peer-to-peer networking. Although the infringing material never passed through Napster’s servers, the appeals court rejected Napster’s four arguments (including Fair Use) that they were not violating the copyright of various recording artists and their record companies.

Napster continued – the current situation

On remand, the lower court has tried to fashion a remedy that permits Napster to stay in business but Napster has been unable to fully comply with the court’s orders. The court has now ordered Napster shut down and announced a “Zero Tolerance Policy”

On 7/11/01 the District Court refused to permit Napster to resume file transfers even though Napster was able to demonstrate 99% reliability in blocking copyrighted music. The District Court is now requiring 100% reliable blocking.

Los Angeles Times v. Free Republic, CV 98-7840-MMM (Dist. L.A. 1999)

U.S. District Court held that the fair use doctrine does not protect wholesale copying of newspaper article on the Internet, even if the website in question is used for public comment on the articles.

Other Exemptions from Copyright

Section 110 – use for face-to-face teaching

Section 110 Exemptions of certain performances and displays

Notwithstanding the provisions of section 106,the following are not infringements of copyright:

(1)performance or display of a work by instructors or pupils in the course of face-to-face teaching activities of a nonprofit educational institution,in a classroom or similar place devoted to instruction,unless,in the case of a motion picture or other audiovisual work,the performance,or the display of individual images,is given by means of a copy that was not lawfully made under this title,and that the person responsible for the performance knew or had reason to believe was not lawfully made;

Important Doctrine for Media-makers

The “work-made-for-hire” doctrine is your friend as a media-maker. It

makes copyrights on certain collaborative works easier to

manage.

Work Made for HireWork made for hire – Section 1011. A work made by an employee within the

scope of his or her employment; or 2. A work specially commissioned for use

as a contribution to a collective work, as part of a motion picture or other audio visual work as a sound recording, etc. if the parties expressly agree in a written instrument signed by them.....”

Some Methods for Non-infringing Use

A person may use material

1) If they find an exception for their use in the Copyright Act (Fair Use, others).



2) If it is not copyrighted (ie: has fallen into the public domain, or is a government publication),



3) If they receive the consent of the copyright holder. The permission can be free of by negotiation of a fee.



4) If they pay an agent of the copyright holder (performing rights societies, others).



5) If they specially commission it for their multimedia work.

How to tell if a work is copyrighted?

Copyright search at the Library of Congress Copyright office In-person By web interface

By hiring the copyright office ($65/hour)

By hiring a contractorwww.thomson-thomson.com

How to research the copyright status of a work

By web interface – post 1978 works http://www.loc.gov/copyright/search/

By Telnet LOCIS locis.loc.gov Circular 22 covers how to search By manual card catalog - the card

catalog covers 41 million works from 1870 to 1977

Hire a contractor, etc.

Public Domain Dates Music and lyrics written by an American

author and published in 1932 or earlier are in the Public Domain in the United States, unless a state law creates a separate right. If it is an unpublished work, then 1882 or later, depending on the facts.

After that, see the public domain chart – handout.

Problems with Copyright Searches

Problems with copyright searches LOC may be running behind in entering data Post-1978 works are protected, even if not

registered Unpublished works before 1978 are protected

under common law without registration Works published with notice prior to 1978 can be

registered anytime within their initial 28 year term Works between 1964 and 1977 have had their

terms automatically extended and renewal registrations are optional

Other problems

Public Domain Music

Public Domain Music websiteswww.pdinfo.com infohttp://pdmusic.org/ compositionshttp://cpdl.snaptel.com/ choral public

domain music

Use “buyout music” What is buyout music? Music for sale

which includes the rights.

Often themed music, not popular music, not recognizable, but “in the spirit” of the concept. Much buyout music is custom composed and performed.

Use “buyout music” Where to get buyout music The Music Bakery

www.musicbakery.com Aircraft Music

http://www.mediacraftmusic.com/buyout.html

Chestnut Mills www.chestnutmills.com Many, many more

Music Research Link

Great link for music research – New York Public Library

http://www.nypl.org/research/lpa/mus/mus.resources.html

Songs – two types of Copyright

The two copyrights do not have to be owned by the same person or the same company.

Where to get permissions Direct from the publisher (often free

permissions) Direct from the author (usually free) Copyright Clearance Center (small fee)

www.copyright.com CANCOPY (Canada)

www.uniquename.com/cancopy ASCAP, SESAC, BMI www.ascap.com,

www.sesac.com, www.sesac.com

Use of the Composition Only

To use a copyrighted song, performed by your own

artist, you will need rights from the composer/music

publisher

Use of a Popular Song

To use a popular performance of a song, you will need permission form both the composer/music

publisher and the holder of the performance copyright,

usually the record label.

How to Get Permission for Use of a Popular Song

Direct negotiations – or, The Harry Fox Agency – agency for

getting licenses for popular music www.harryfox.com Song search engine at

www.songfile.com (demonstrate)

Summary – good ways to use music in media productions

1) Get permission2) Check to see if it is in the public

domain3) Pay an agent/rights society4) Compose your own5) Get permission

Use of Music in Media Productions

Questions??Rick Morris, J.D., LL.M.

[email protected]

Use of Music in Media Productions Rick Morris, J.D., LL.M. Associate Professor R/TV/F and...

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