The “bundle of rights” which constitute copyright as far as musicians are concerned are:
The right to perform by digital transmission.
Only the copyright owner may exercise these rights or authorize others to do so. The rights mentioned above can be separated. The rights of musicians can vary depending on whether they are composers or performers. A composer is a person who creates the music — i.e. the melody, rhythm and lyrics. A performer is one who performs music. As explained in the ownership section, the performer’s copyright exists in the sound recording. We will mention differences between rights of composers and performers wherever relevant.
The reproduction right gives the copyright owner the exclusive right to make copies of his work. For example, if you own a copyright in a sound recording, you have the exclusive right to make copies of the sound recording through CDs, cassette tapes or by any other means.
For composers of music, the reproduction right is limited by the right of others to make a sound recording once a composer has recorded and distributed copies of his composition. We will talk more about this limitation under the mechanical license section.
For performers who own a copyright in the sound recording, the reproduction right gives the exclusive right to prevent duplication of the sound recording. However, the copyright owner cannot prevent an imitation. The owner of the copyright cannot prevent somebody from gathering their own artists, equipment and engineers and recording the same song to sound exactly like the earlier recording. This might be the reason many record contracts have provisions requiring performers to agree to work for that label exclusively for a specified number of years.
The adaptation right gives the copyright owner the exclusive right to create derivative works. A derivative work or an adaptation is a new work based on an existing work. For example, if someone uses melodies from one composition in another composition, the adaptation right is implicated. The person using the piece from the existing composition needs permission from the original composer.
Sampling
Music sampling is an example of a derivative use of older works. However, sampling is a controversial practice. Many samplers may argue that they do not need licenses to sample especially when they are sampling a very small portion of a recording and the original music cannot be recognized in the sampled work.
The few courts that have dealt with the issue have treated sampling of musical compositions different from sampling of sound recordings. While sampling very small portions of a composition has been held to be permissible, sampling of even small portions of sound recordings has not. However, the law in this area is far from settled. Samplers unable to obtain license are faced with three options: do not sample, assert fair use or claim that the use is de minimis use i.e. that the use is so small that it is permissible under the law. The test for de minimis use is whether the audience can identify the original work in the sampled work.
Only the copyright owner or a person authorized by him has a right to distribute copies of the work. For example, only the owner of the copyright in a sound recording can sell or authorize others to sell CDs containing the sound recording.
The copyright owner has the exclusive right to perform or authorize the public performance of his work. A performance is public when it is made in front of a large or undefined number of people or is broadcast to members of the public. For example, when a singer sings a song in a concert hall, a TV station broadcasts a song, there is a public performance. Private performances, i.e. performances in front of family and friends, do not need consent from copyright owners.
The public performance rights of composers and owners of copyright in sound recordings vary a great deal. Composers have to be compensated whenever their composition is publicly performed whether through radio or TV or in a concert hall. The right encompasses what has come to be known as synchronization rights. A synchronization right is the right to authorize use of music as a background or as part of a movie or a television show.
In contrast, copyright owners of sound recordings have no general public performance right. This means that when an over-the-air radio station plays a record, the composer is entitled to compensation but the owner of copyright in the sound recording is not. In 1995, Congress passed the Digital Performance Right in Sound Recordings Act. This law grants to owners of copyright in sound recordings a public performance right in digital transmissions of their music. This right is subject to a number of limitations which we will talk about in the limitations section.
Administration of the Public Performance Right
Administration of the performance right varies between composers and owners of copyright in sound recordings. While composers administer this right through voluntary organizations, owners of copyright in sound recordings administer the right under a compulsory license scheme provided by the law. We will discuss the administration of the right for composers in this section. We will discuss administration of the right for owners of copyright in sound recordings under the limitations section.
Although the law gives exclusive performance rights to composers, it is almost impossible for individual composers to enforce this right. How is a composer to know when and where his works are being performed? Therefore, performance rights are enforced by “performance rights societies” formed by authors and composers.
The performance right is administered by three organizations — the American Society of Composers, Authors and Publishers (ASCAP), Broadcast Music, Inc. (BMI) and SESAC (formerly known as the Society of European Stage Authors and Composers). These organizations are also known as the performance rights organizations (PROs). They license compositions for public performance on behalf of composers who are members of these organizations and distribute royalties collected to the composers.
These PROs charge a single blanket license for unlimited access to their entire repertories of musical works for a contractual period. The license is charged as a percentage of the music user’s revenue. The percentage is negotiated based on use and the importance of the music in the user’s operation. Generally wealthier users such as the major television networks are charged more than small users.
The PROs also offer a per-program license fee for users who require minimal access to their repertories. For example all talk and all news radio stations are offered per program licenses. The revenue generated from the licenses is distributed to members based on the number of times their compositions were used and the prominence given by users to their compositions. More information about ASCAP, BMI and SESAC is available on their websites at www.ascap.com, www.bmi.com and www.sesac.com.
Unauthorized audio and video recording of live musical performances is referred to as “bootlegging.” This right is not part of the “bundle of rights” provided by copyright law because performers do not have a copyright in their performances. However, bootlegging is a civil offence. The law prohibits unauthorized recording of performances, distribution of copies of unauthorized recordings and transmissions of unauthorized recordings.