A copyright is not an absolute right. The law places limitations on copyrights in the interest of creativity and free flow of information. Some limitations on exclusive rights are common to all works, while others are specific to musical works and sound recordings. Limitations on copyright in musical compositions and sound recordings can be placed under three broad categories: exemptions from exclusive rights, compulsory licenses and fair use. Before talking about the limitations on copyrights in musical works and sound recordings, we should mention one limitation applicable to all kinds of works.
This doctrine embodies a limitation on the distribution right. Under this doctrine, a person who purchases a copy of a copyrighted work can sell, lend or lease that copy without the permission of the copyright owner. This provision does not apply to the rental or leasing of sound recordings. However, sound recordings can be rented or leased for non-profit purposes by a non-profit library or educational institution. This provision responds to concerns that the first sale doctrine would enable people to rent a record and copy it on to a blank tape thereby displacing record sales.
An exemption to an exclusive right means that the user does not need permission from the copyright owner to use the work. Exemptions to copyrights in music and sound recordings apply to the public performance right. Certain performances like those that happen in the course of teaching in a classroom, instructional and religious broadcasts, and non-profit performances are exempted from the scope of the performance right.
The law also permits restaurants, offices, malls and other establishments to play music in the background without the permission of the copyright owner. In order to qualify for this exemption establishments have to meet three conditions:
They have to come within specified square footage.
They should not use more than six speakers or four monitors to enhance the transmission.
The performance should originate from an FCC licensed radio station or television station.
Normally, to use a copyrighted work, the user has to seek permission of the copyright owner. In many instances such permission is given in exchange for a license fee paid to the owner. However, in some situations the law permits the user to use the work without the owner’s permission provided the user pays a statutory fee or a “compulsory license” to the copyright owner. Composers and performers are affected by different types of compulsory licenses.
The mechanical license affects composers’ exclusive right to reproduce and distribute their musical works. Once a composer has recorded and distributed his composition in America, the law permits others to make and distribute a recording of the same composition, subject to payment of prescribed fees to the copyright owner. In order to receive the benefit of the license the person making the recording has to serve a notice of intention on the copyright owner within 30 days of making the recording and before distributing it. If the owner’s name and address cannot be found in copyright office records, the notice can be filed in the copyright office. A copyright owner is entitled only to royalties collected after the copyright owner is identified in the copyright office records. This is another good reason to register your copyrights.
The mechanical license was introduced in 1909 because Congress feared that record companies could monopolize songs. It applies only to non-dramatic musical works. Thus it excludes the score of an opera or a musical ballet.
It is important to remember that a person who wants to record a musical composition cannot simply copy an earlier recording. That would violate the rights of the owner of copyright in the sound recordings. Also, he cannot “change the basic melody or the fundamental character of the song”.
Royalty rates for the license can be negotiated between the copyright owner and the record company. If the parties fail to come to an agreement, the rates will be determined by the Copyright Royalty Board. In practice, resort to arbitration proceedings is rare.
In 1995, an amendment to the law called the Digital Performance Right in Sound Recordings Act clarified that the mechanical license also extended to digital deliveries of sound recordings.
Many composers license their mechanical rights through an organization called the Harry Fox Agency. As a condition for granting membership to composers or music publishers, the Harry Fox Agency requires that the musician have at least one song commercially released through another party during the preceding 12 months.
Non commercial or public broadcasting entities can transmit copyrighted musical works if they negotiate a license agreement with the copyright owners. If they fail to reach such agreement, the law provides that the license will be set by the Copyright Royalty Board.
Performers are affected by compulsory licenses governing the use of sound recording. Sound recordings do not have general performance rights. So when an over-the-air radio station plays a song, performers cannot expect any compensation much less prevent the station from playing it.
In 1995, the Digital Performance Right in Sound Recordings Act (DPRSRA) introduced a performance right for sound recordings transmitted digitally. The concern behind this legislation was that digital technologies would enable consumers to substitute digital subscriptions for record purchases and this would deplete the stream of revenue for copyright owners of sound recordings. Purchase of records would further go down because of increased home taping.
The DPRSRA creates three classes of users. The first class of users, mainly terrestrial broadcasters of free radio and television programming, are completely exempt from the right. The second class, consisting of non-interactive subscription services such as XM and Sirius radio and Internet radio are subjected to a compulsory license. The third class, consisting of interactive services such as limited downloads, does not get the benefit of the license. They have to negotiate directly with the copyright owners.
The compulsory license discriminates between non-interactive subscriptions services established before July 31, 1998 and those established later. It requires all services to satisfy the following conditions to qualify for the license:
Services will not play more than two consecutive selections from single album in a 3 hour period.
Services will not give advance notice to consumers about selection that will be played.
New services have to meet following additional conditions:
Avoid giving advance notice of names of featured artists.
Limitations on retransmitting archived programs.
Do not abet consumer copying.
Take reasonable steps to assure that technological protection measures will function.
SoundExchange is the designated entity that collects royalties on behalf of labels and artists when their music is transmitted digitally i.e through digital cable and satellite television, digital radio such as satellite radio and Internet radio. Royalty is collected on a per performance basis and is distributed evenly between the artist and the label.
The royalty rate can be determined either by negotiations between the parties or by a rate setting proceeding before a statutory body called the Copyright Royalty Board. The Copyright Royalty Board periodically convenes to determine royalty rates.
Fair use is another limitation on your rights in your music. But it is not as well defined as the limitations and exemptions discussed in earlier sections. Its purpose is to ensure that a copyright owner’s exclusive bundle of rights will not hinder the very creativity that the law was designed to foster. The doctrine recognizes that new works draw inspiration from older works and that productive use of older works promotes the progress of science, the arts, and literature. Fair use permits use of copyrighted material without permission where use is in the public interest. The law specifically mentions criticism, comment, news reporting, teaching, scholarship and research as exemplary fair uses, but there is no clear-cut-rule. Fair use is determined on a case-by-case basis. An activity may qualify in one instance as fair use, while it would be an infringing activity in another context.
The law sets out four factors to be used in determining whether a particular use is fair.
Under this factor, non-profit or educational uses and uses that transform the underlying material are more likely to be considered fair. Transformative uses might be considered fair even if they are commercial.
A good example of a transformative use is parody. A parody uses the original work in order to make fun of it. From court cases decided to date, several elements emerge. For a parody to be considered fair use:
It must comment on the original.
It should use only as much of the original material as is needed and not so much that the consumer will be confused or the commercial value of the original will be diluted.
It should not seek to replace the original in the market place.
In Campbell v. Acuff Rose Music, the owners of the copyright in Roy Orbison’s song, “Oh, Pretty Woman”, sued the rap group 2 Live Crew, claiming that the group’s parody song infringed their copyright by using the first line of the lyrics and the song’s opening bass riff. The Supreme Court found that because 2 Live Crew’s song added significant amounts of new material and criticized the underlying work, the use was transformative and qualified for fair use. The court reached this conclusion even though 2 Live Crew’s use was for commercial purposes.
Generally, creative works are given greater protection than factual works. For example, a song would receive more protection than software code. Also, if a work is unpublished, the author’s right of first publication is recognized. Yet a work’s unpublished nature does not necessarily preclude finding of fair use.
Under this factor, a court would examine what portion of the work was used and the significance of the used portion.
Adverse effect of the use or potential adverse effect tends to go against a finding of fair use.