All you want to know about music copyright!!

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TrutH

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I have just completed a Doctorate thesis dealing with music copyright law. The title is:

Is the law of Copyright a sufficient means of protection for the music industry today?

If anyone has any questions regarding author's, performance, producer's rights etc. or you want to know the TrutH and realities of the modern music industry or express your opinions about copyright legislation just post your questions here.
 
say your starting up an independant record label how do you copyright the name you call the label eg, say it was called TRIUMPH RECORDS. how do you go about using that name?

thanx
 
Names and Marks are not protected under the Copyright regime but they are Trade Marks. These are different and are protected differently.

Whilst copyright of a musical, litterary or artistic work comes into existance automatically, and contrary to public misconception, any original works are protected upon fixation, Even in USA (this is so since 1989 when USA ratified the Berne Convention for the Protection of Literary and artistic Works), and stricktly speaking it is not necessary to register any copyrights, Trade Marks and Trade Names work on a different premiss.

A Trade Name or Mark works according to the principle of prior use. If I use the Mark or Name before you and I prove prior use I should be eligible to protection. However, it is advisable that you register your trade mark and\or name with the competent authority of your country because in the case that any person uses your trade name you do not have the burden of proving that you have used the name first. This will save you a lot of hassle and possible court action.

Before you register your Trade Name you should therefore check whether another person has already registered such a name. If the name is cleared, register it.
 
Bye the way,

WHilst there can only be one trade mark or trade name it is possible that copyright in two coincidentially similar songs may be held by seperate persons. Even though the songs may seem to have been copied.

If for example, an American person writes a song and and an English person writes the same song by coincidence and they are both a work of original authorship (original in this context means that both songs were written independently and either did not influence the other) and there is no link of causation between the two songs ( this means that there is no realistic that the person accused of copying could have heard the song) both songs will be independently protected.

The reason is that whilst TMs intend to create a monopolitic right over the use of Trade Mark or Name in order to avoid confusion between two brand and avoid unlawful competition, Copyright does not intent to create a monopoly. This would go against the funadamental objective of copyright that is to encourage artistic expression through the protection of authors', performers' etc rights by offering them an economic incentive.
 
First of all, thanks for offering your expertise!!

My question is this:

I have created a song that is a compilation of many different children's songs. However, the lyrics are combined musically different than any of the original children's songs individually. Must I get permission from each of the authors of the children's songs in order to have my work copywrited??

Thanks again,
C/T
 
Just for a little further information on Trademarks. A Trademark is a mark used in commerce. To protect your Trademark, you can register it with the United States Patent and Trademark Office however, registration is not how you obtain a Trademark. Use in commerce is the most important factor for obtaining a trademark. Once you can show that you have used the mark in commerce for a specific period of time, you are entitled to registration to protect that mark.

The prior use for the Trademark requires prior use in commerce. I do not recall off hand what the time requirements are, if any, however I will check that out and post it when I have the information.

There are other restrictions on the use of particular Trademarks. For instance, Trademarks cannot be generic names or items. Nevertheless, in some situations where you are having difficulty becuase someone has used a similar Mark before you or there is an opinion by the Trademark examiner that the Mark is generic for instance in a case where the Mark has a generic meaning in another language, you can use the supplemental register. After requesting registration on the supplemental register, if nobody challenges the Mark in five years, you can then have the Mark fully registered.

You may have noticed the use of the symbol TM (usually in a circle) to indicate a Trademark. This does not represent a legally registered mark. It is used to indicate that you are claiming the mark as your trademark and to place other on notice or your intention to use the mark as you trademark. It also shows that you are in fact using the mark in commerce particularly if the TM is stamped on a label of some goods being sold. The symbol R in a circle means the mark has been regsitered and can only be used if the mark has been legally registered. Whil awaiting registration after filing the application, you can use the TM symbol to indicate that this mark is your Trademark and upon receiving notification of registration, you can switch to the R symbol.

I have discovered also that there is a new law that allows you to reserve a mark prior to actual use based upon a bonafide intent to use the mark in commerce. I do not know what the requirements are but I will be looking into this a bit more.


There is more involved in obtaining a registered Trademark. For anyone with specific questions, feel free to e-mail me.
 
great posts, this copyright thing is very frustrating to study. It's very difficult to put some light on it.

What readings do you recommend (in the web) for a concise, simple understanding of it? I would also love to read your thesis.

Cheers, Andrés
 
well said PhilMckracken! You gave a very clear picture about trade marks, which principles are similar in both Europe and America.

My thesis will be available online when I complete my homepage. I will let you know. In the meantime just feel free to ask anything about copyright? If I know the answer I will surely help out.
 
.I have created a song that is a compilation of many different children's songs. However, the lyrics are combined musically different than any of the original children's songs individually. Must I get permission from each of the authors of the children's songs in order to have my work copywrited??

Answer to C/T's question:

Your question transcends several principles of copyright that are quite complicated and are applied to each and every individual case.

1. Litterary (including Lyrics) copyright and Musical copyright attach copyright independently from each other. Therefore you have different copyright in the lyrics and in the music. If you are just copying the lyrics your question of copyright is just restricted to this and you will only need permission from the author of the lyrics. If you are copying the Lyrics and the Music you will need permission from the author of both. I am saying this because the author of the lyrics and the author of the music may not be the same person.

2. You also have a question of substantial taking. You know that you are copying these childrens' song or at least part of them. The question is whether the parts that you have copied are 'substantial parts'. This means that when listening to your song an ordinary person would see a clear resemblance to the original song or lyrics in your case. Obviously as I have said at the begining of my answer these factors are studied on a case by case basis therefore one would have to hear both songs and see the resemblance. I am in no position to tell you whether your song is in breach or not.

3. Sampling. If you are going to sample parts be very careful. Both US Courts and European courts are very prejudice against sampling. I would always recommend that youu try to get the permission of the copyright holder in the case of recognisable samples.

4. Does your song, even where it is in breach of copyright, attract copyright? This varies according to countries. For instance, In Malta even though a musical wrk may be in breach of copyright of another song it is still protected independently by copyright. Reason is that that once the work has an original character it is eligible to protection. I am not sure about the situation in every country but this is the usual trend. If you have a section in your country's copyright legislation that is similar to the following then the situation is like that in Malta:

"A work shall not be ineligible for copyright by reason only
that the making of the work, or the doing of any act in relation to
the work, involved an infringement of copyright in some other
work." (Copyright Act 2000, Laws of Malta)

5. Term of protection. How old is the original song? If the term of protection of musical copyright has expired the work becomes part of public domain. The result is that anyone can use the work without the need to pay any royalties or get any permission for use or adaptation.

Therefore C/T
1. Check how old the songs are
2. If they are still protected see whether there is a notable resemblance.
3. If there is I would try to acquire permission from the author. If he refuses I think that your law may provide a mechanism of compulsory licensing. Check this out!
4. It is probable that your work is automatically protected by copyright even though it may be in breach of another work's copyright. Check it out your copyright law!

I hope that these explanations and answers have been useful and clear enough. You must understand that Copyright is really complicated the main reason because every song must be dealt with individually. Therefore the principles that have developed are all very generic.

If you have any other questions just ask!
 
Thanks for the great info!!! I'll check the things you've mentioned...hopefully all goes well (I think they will.)

Excellent assistance!!!!
 
Good thread. A couple of thoughts:


TrutH said:
Whilst copyright of a musical, litterary or artistic work comes into existance automatically, and contrary to public misconception, any original works are protected upon fixation, Even in USA (this is so since 1989 when USA ratified the Berne Convention for the Protection of Literary and artistic Works), and stricktly speaking it is not necessary to register any copyrights, Trade Marks and Trade Names work on a different premiss.

A Trade Name or Mark works according to the principle of prior use. If I use the Mark or Name before you and I prove prior use I should be eligible to protection. However, it is advisable that you register your trade mark and\or name with the competent authority of your country because in the case that any person uses your trade name you do not have the burden of proving that you have used the name first. This will save you a lot of hassle and possible court action.
Click to expand...


For clarification, at least according to US law:

There are analogies between copyrights an trademarks.

It is not necessary to register either to have protection. However, both should be registered for evidentiary purposes. In particular, the benefits of registration of each affords proof that you were the actual owner/author.


Also, later it was stated, "there can only be one trade mark or trade name." This is untrue. It is true that prior use dictates the ownership of the mark to avoid customer confusion. However, different marks mary be used in different geographical areas (within the US). Prior use by each owner in each area gives each owner rights in the mark in that area. Yet, once the mark is registered, national coverage is given to the mark. Even so, a prior user in a specific region may maintain ownership of the mark for that region if the user used it before it was registered. Thus, there may be multiple owners of a mark within the same country.


Otherwise you show a great grasp of IP law relating to copyrights. I look forward to the availability of your thesis.
 
If you would, please explain this concept of copyright notwithstanding breach of a prior copyright. What is the extent of the protection on the copyright that includes the breach of another prior copyright. Does one then have to make a pro-rata distribution of roylaties to the original copyright holder or does the orginal copyright holder then have to estabish some right in the new work. Is it deemed a derivative work and if so, what are the implications of that?
 
Prior Copyright - If I have an original work and you alter my work to such an extent that there was sufficient creativity and originality, your work is protected from anyone copying illegally it even though it is in breach of my copyright. However, You would obviously be subject to being sued by the original copyright owner unless you have received his consent of come to some agreement.

The new work is yours. You may be sued by the original owner or come to an agreement. There is no a priori sume that one must pay. (This is not a case of paying royalties to playback a song) You are making your own work through the author's therefore you a creating a right. For this reason the owner will expect more than a mere royalty. If your song is better than the original, for instance, what would happen is that the people would begin to buy your song (eg. Nalthalie Imbruglia) and you will be entitled to your royalties. therefore the original owner may loose sales or reputation etc. So all these things will (or could) be studied before coming to an agreement.

Derivative works

A derivative work takes a pre-existing work and adapts it in some way in order to create a new work. The adaptation right extends to the following acts, restricting “the adaptation, the arrangement and any other alteration and the reproduction, distribution, communication, display or performance to the public of the results thereof”. Therefore if your work classifies under this, it is a derivative work. (Possibly slightly different in USA but should follow the same principle). The implication are what I have just told you. Hope you understood.

If you need any more help I am back on line.
 
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