Tag Archive for: copyright

Getting Permission to Use Copyrighted Texts in Musical Works

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For those of you who read my articles on the commissioning process, you’ll recall that one of the things a commissioning contract will typically contain is a clause stating that you’ve cleared the rights to any copyrighted text or music you use in your work. Music publishers put similar clauses their writer agreements and labels have them in their artist contracts, too.

Let’s say you’re a composer and you want to set a text by your favorite poet. If your selected sonneteer happens to be Shakespeare, Elizabeth Barrett Browning or some other person who’s been dead for several hundred years, then there’s no problem since their works are in the public domain. But what if the versifier of choice is only more recently deceased or even happens to be a living, breathing writer like you? Then you’ll need permission to use the poem. Why? Because their works are still under copyright. Setting a copyrighted text to music constitutes making a “derivative work” of that text and the Copyright Act gives the copyright owner the exclusive right to do that in Section 106. And trust me, you can’t claim “fair use” if you use a whole stanza, let alone an entire poem, for the text of your composition.

You’ll always want to get permission before you write that magnum opus. If you write the piece first, especially if it’s a large-scale commissioned work like a song cycle for tenor and orchestra, there’s a good chance you’ll find yourself in deep doo doo if the copyright owner of your chosen text just says “no,” which they have every right to do. Weeks or months of precious writing time will be wasted and you’ll undoubtedly miss the delivery deadline under your commissioning agreement. Even if you can get permission, the rights holder will be able to drive a very hard bargain on the price and may even demand a piece of the copyright to your work if they know you’ve already written your masterpiece around their poem.

So whose door do you go knocking on? It could be a publisher or a literary agent. Start with the copyright page at the front of the anthology that contains the text. Send a short, polite note to the permissions department of publisher listed for the text, explaining who you are and what kind of kind of work you wish to write. Also ask the publisher to refer you to the appropriate rights holder if they aren’t it.

As for the specific rights you’ll need, these include the right to perform your work indefinitely, to have printed music made available and to be able to record the work, both in sound recordings and in audiovisual works. You’d be amazed how often composers, thinking only about the premiere, will only get the right to perform the work for a short time and neglect to obtain, or even ask for, the necessary publication and recording rights.

You’ll also need patience and persistence. It can take anywhere from a few weeks to several months of follow-up emails and voicemails to get a response and then negotiate a deal once you get to the proper rights holder. Don’t pester and always be polite. Otherwise, you’ll guarantee a slow — and negative — response.

The publisher of the text will want an appropriate copyright notice in any concert programs, printed music or recordings. Although they’ll sometimes insist upon a portion of the writer’s share of royalties (i.e., income), you should avoid giving them a share of the copyright (i.e., ownership) in your work. Flat-fee buyouts in the range of $500-$1,500 are common, especially for choral works written for the educational market, although these fees can range from nominal (e.g., $50) to enormous ($5,000).

The process is very similar if you want to use a quotation of a copyrighted musical work. Start by contacting the business affairs department of the music publisher for the work. If you don’t know who the publisher is, you can search on the website of the appropriate performing right organization. ASCAP, BMI and SESAC all have searchable online databases for their repertoire.

An earlier version of this article was published on BMI’s Songwriter 101 web site on October 8, 2010.

The Chess Game of Fact Checkers As Applied To Music

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“You are entitled to your own opinion, but you are not entitled to your own facts.”

– Sen. Daniel Patrick Moynihan

For the past several election cycles, a cottage industry of fact-checkers emerges from their pumpkin patches each fall to assess the credibility of candidates’ claims.  One of most-quoted of these, FactCheck.org, is affiliated with my alma mater.  These groups’ findings are not only cited by the media but are also used by partisans of both Presidential candidates.  And while neither the press nor the candidates are free to plagiarize the articles produced by fact-checkers, the facts themselves are fair game.

In fact (sorry), it seems fact-checkers have themselves become the story. Yesterday, CBS Sunday Morning dedicated an entire segment to the role of fact checkers.  It seems these trufflers of truth have become pawns in the political chess game of electoral politics, with each campaign’s spinmeisters trying to use the checkers to “king” their candidate by persuading the voters that their opinions are facts.  In keeping with the non-partisan nature of my posts, I’ll not comment on which candidate appears to have racked up the most misdemeanors from the fact checkers – but I do have my own opinion!

As it turns out, the late Senator Moynihan is absolutely right from a copyright perspective. Section 102 of the Copyright Act not only states what is subject to copyright, including various forms of musical works and sound recordings, but also sets out many things that are not subject to copyright protection. For example, there is no copyright protection available for any “idea, procedure, process, system, method of operation, concept, principle, or discovery.” And while the statute’s list doesn’t explicitly include facts, the FAQ on the Copyright Office’s web site does state that “[c]opyright does not protect facts…” More importantly, the Supreme Court has said that facts are not copyrightable.

Facts are either ideas or concepts (e.g., 1+1=2) or discoveries (e.g., it’s a fact that the earth revolves around the sun).  So, the candidates and their minions, along with the media and everyone else can freely use the findings of fact-checkers as to what a particular candidate said or didn’t say and whether his proposals are better than the other guy’s.  As I said in my last post, as with fair use, the exclusion of facts, concepts, discoveries and ideas  — as opposed to the individual expression of them, reinforces our First Amendment freedom of speech as nobody can monopolize an idea.

These concepts apply not only to political discourse, but to musical expression, as well.  Section 102 states that copyright applies to “original works of authorship.” It is the individual expression of an idea or concept, not the concept itself, that is subject to copyright protection. So, what does this mean in a musical context? Imagine if C.P.E. Bach had been able to get a copyright in sonata form. Or if Bach and Vivaldi had sued each other over the exclusive right to use a circle of fifths?

It would be absurd to think that Jerome Kern couldn’t use that chord progression  in “All The Things You Are.”  Structural forms (such as a 32-bar AABA song or a 12-bar blues) and chord progressions are among the things that are generally considered to be non-copyrightable concepts or ideas.  One would probably be justified in having the opinion that they’re musical “facts.” Just think of the all the songs and standards written on “blues” or “rhythm” changes.  Or consider the thousands of symphonies, concertos and sonatas that use sonata form. Steve Reich has copyrights in his works,  “Piano Phase” and “Violin Phase” but he can’t prevent another composer from utilizing phasing techniques in their own works. The same principle would apply to performance techniques: there’s no copyright for wind players playing double stops or practicing circular breathing.

So, feel free to marshal as many facts as you can to support your opinion as to which candidate “won” tonight’s final Presidential debate.  Or write and perform a new work on the topic using whatever forms and techniques you like. I only ask that you not post any politically-oriented comments in response to this piece. That said, your opinions as to copyright and music are most welcome.

Why The Obama Big Bird Ad’s Going Bye-Bye

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Since last week’s Presidential debate, Big Bird’s eight-foot high profile has grown even larger.  It started with a comment that Republican contender, Gov. Mitt Romney, made to the moderator, Jim Lehrer of PBS , about cutting federal funding for PBS programs, including Lehrer’s own NewsHour and Sesame Street. Mr. Romney specifically singled out Big Bird for the budget ax.  Thereafter, Big Bird, who claims he’s normally in bed well before 11:30 p.m., made a guest appearance on Saturday Night Live’s Weekend Update to address the issue.  Being non-partisan, however, Mr. Bird declined to make any political pronouncements, stating, “No, I don’t want to ruffle any feathers.”

Unfortunately, he’s managed to do so, courtesy of a TV ad from President Obama’s campaign.  Prominently featuring Big Bird and the familiar green Sesame Street  sign, the ad has a satiric quality to it that one doesn’t typically see in Presidential campaign ads. It seemed, at least to me, more like one of the fake ads produced by Saturday Night Live. But it’s real and Sesame Workshop, the company that owns the rights to Sesame Street and its many characters, made it known that they are not amused.

Sesame Workshop’s demand that the Obama campaign cease using the Big Bird ad has been widely publicized.  But you might well ask, “doesn’t the President’s campaign have a First Amendment right to use Big Bird?” After all, “political speech” is the very core of our right to free speech.  And wouldn’t the use of Big Bird constitute “fair use” under copyright law? Wouldn’t it be considered a protected “parody”?

Well, probably not. Let’s first look at “fair use,” something that’s often misunderstood. Much ink has been spilled in recent years over so-called “fair use rights.” Actually, “fair use,” which is codified in Section 107 of the Copyright Act, is a defense to copyright infringement – not a “right.” And one of the purposes of “fair use” is to balance first amendment speech rights with copyright law’s limited monopoly.  Section 107 does state that use of a work may be “fair use” when used “for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research….” Moreover, the courts have repeatedly held that there are no black line rules for determining fair use and that each decision is to be made on a case-by-case basis through an analysis of Section 107’s four factors. These include the “the purpose and character of the use”, such as whether it’s a “commercial use” and how much of the underlying work is used in the allegedly infringing work.  More recent cases also look to see if the use is “transformative,” meaning that the underlying work is not merely reproduced but is used in a new way.

One thing’s clear: just because it’s a political ad doesn’t mean you can use someone else’s copyrighted work.  The First Amendment guarantees free speech, but it doesn’t give you the right to freely use someone else’s speech.  A few years ago, Joe Walsh of The Eagles sued Joe Walsh the Congressional candidate over the use of one of his songs in a TV ad.  Many composers won’t allow their works to be used for political purposes. For example, Aaron Copland’s estate won’t allow the use of the iconic “Fanfare for the Common Man” to be used in political campaigns. A few years ago, when I was at Boosey & Hawkes, I was able to slap Comedy Central on the wrist for an unauthorized use of the Copland anthem on The Daily Show that was discovered by my staff. The result: a hefty license fee and some tickets to a taping of the show.

So what about the Big Bird ad? The use of the clip of Gov. Romney from the Presidential debate is likely  a fair use. It’s a short clip of a public, newsworthy event and the ad is commenting on Gov. Romney’s views and criticizing them.  With respect to Big Bird, it’s a bit more tricky.  He’s not the subject of the criticism, but his name and likeness is being used to criticize Gov. Romney’s statements.  And there’s an awful lot of Big Bird in the ad.

But, isn’t it a “transformative” use? After all, parody is one of the uses that may be considered transformative.  But, sometimes a parody is not a parody in the legal sense. The 1994 Supreme Court case of Campbell v. Acuff-Rose Music, Inc. (involving 2 Live Crew’s unauthorized use the Roy Orbison hit, “Oh, Pretty Woman” in one of its songs) and many subsequent cases, hold that a new work is a protected parody under copyright law only when it is commenting on, i.e., parodying, the underlying original work.  In the 2 Live Crew case, the Supreme Court found that the rap group’s song did, in fact, comment upon the Orbison hit.  In the Obama ad, it appears that the parody is directed not at Big Bird (the underlying copyrighted work), but at Gov. Romney. That would tend to defeat the parody defense. For example, it’s not a legally protected “parody” if you take a popular song and merely change the lyrics to comment on some topical issues of the day as opposed to scorning the song itself. But what about Weird Al Yankovic? Actually, Weird Al gets permission from the copyright owners of the songs he “parodies.”  And, as the Supreme Court noted in the 2 Live Crew case, the parody doesn’t have to be either good or funny.

So, it’s murky at best under copyright law as to whether the Obama campaign can use Big Bird in its ad without permission.  But it doesn’t end there. Remember the “Sesame Street” street sign? Sesame Workshop has a trademark in that famous logo.  Not surprisingly, there’s a “fair use” provision in the federal trademark act (that’s Section 33(b)(4) of the Lanham Act for you footnote freaks) and the courts construing it typically consider three factors, including whether the use of the mark suggests sponsorship or endorsement by the owner of the trademark.  Under that test, it looks like Sesame Workshop has a legitimate gripe about the use of its trademark “endorsing” the President’s position.

And remember, I mentioned the use of Big Bird’s “name and likeness.” That’s typically an area of law known as the right of publicity, which allows celebrities, often very dead ones, to make lots of money off of their name and likeness and to prevent others from cashing in without their consent.  However, unlike copyright and trademark, the right of publicity is a matter of state law, not federal law, and every state’s law is different. And while I know of cases where actors portraying fictional characters have successfully made publicity claims (e.g., George Wendt and John Ratzenberger suing over a “Norm” and “Cliff” robot impersonators), I’m not aware of any right of publicity cases involving characters such as the likes of Big Bird, Mickey Mouse or Spiderman.

So, the Big Bird ad, on intellectual property law grounds, is likely to fly the coop. However, that’s not why it’s going bye-bye. While I’m sure the lawyers working for the Obama campaign know that they’re not on solid ground, the Sesame Workshop folks aren’t likely to file a lawsuit. For one, Sesame Workshop’s gotten a lot of favorable free publicity.  But more importantly, the Big Bird brouhaha has a shelf life that will last only until the October 11 Vice Presidential debate and I suspect both sides know this and don’t want to spend a lot of money fighting over something so ephemeral.  Even if there weren’t any legal issues, I’d be very surprised if the Big Bird ad continues to air after this week, by which time it’ll be as fresh as last week’s leftover chicken.

Was Steve Jobs Good or Bad for the Mus(ic)?

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Last week, I was observing Yom Kippur, along with other members of The Tribe. It’s a time when we not only atone for our sins, but also reflect upon the past year, especially remembering those who’ve left us during that time. Growing up, it was not uncommon to ask if some prominent world leader or captain of industry was good or bad for the Jews. Often, it was a mixed answer. Having contemplated the passing of Steve Jobs on an empty stomach, I have similar mixed feelings about his legacy on the music front while fully appreciating the visionary he was in creating and marketing technology that’s changed our lives.

Let me explain. Try to remember a time before there was iTunes. It was truly the darkest of the dark ages for the music business, especially the recording industry.  There was this relatively new format, MP3, that allowed music files to be compressed so that they could easily and quickly be distributed over the internet. And then there was this thing called Napster that allowed millions of people to download millions of copyrighted musical tracks of their favorite artists – for free! And then there were its progeny like Grokster, Gnutella and Kazaa spreading the gospel of free music.

The labels justifiably cried foul because this “sharing” was really stealing despite the sophistry of Google shills such as Larry Lessig and his ilk. But the labels largely had themselves to blame.  Why? Well, Napster, Grokster, SterSter (ok, I made that one up) and all the others wouldn’t have gained so much traction if the labels had actually listened to their customers who were demanding the availability of their music in this new format. Instead, what did they do? They dragged their feet, locked up the content with “digital rights management” tools or DRM and formed alliances that distributed only some, but not all of the major label’s content and largely locked out the indies. With no really good legitimate download service to cater to this market, the pirates naturally stepped in. The labels spent the next several years wringing their hands, suing their customers and clinging to these label-owned download services, the names of which I don’t even remember anymore.

Enter Steve Jobs. He created this thing called the iPod. Perhaps you’ve heard of it. Anyway, Apple’s goal wasn’t to sell music but to sell lots and lots of iPods – which they did. But they needed the music to be legitimately available for people to put on their iPods. So he created iTunes. Yes, it took someone outside of the record industry to finally create a viable, legitimate download service and to get the labels  on board. And while some naysayers in the industry said you couldn’t compete with free, others of us who drink bottled water (I suspect Steve Jobs did, too) maintained you can compete with free based upon quality and service. And he was right. And, at least some people started paying for music again. And it was good.

So what’s wrong with this picture? Well, nothing that time and a little market evolution can’t fix. Remember, Jobs’ goal was to sell iPods, not music. So he priced the downloads cheaply and at a one-size-fits-all price point of 99 cents. And as someone who has been – and soon will be again – a music publisher, he created a pass-through so that iTunes only got permission from the labels. The music publishers who represent the songs that are recorded by the labels and the songwriters who create them didn’t get paid by iTunes but had to rely on the labels to account for their share. OK, the music publishers were a little groggy when this was going down and didn’t protect their turf as well as they could have. Why is this bad? Well, record labels have occasionally been known to employ some creative accounting practices when it comes to paying artists and publishers. But these things can and will be addressed and fixed.

The larger issue is a cultural one. Awhile back a colleague of mine and I were musing about the business over single malt scotch. He’s a few years older than me and told of how appliance stores used to throw in a free box of Tide (remember powdered laundry detergent?) with every washer. Like Steve Jobs, all the appliance store cared about was selling the hardware. My friend said that music has become like the box of Tide. Not an article of value in and of itself, but merely the ancillary content to be run on the hardware. While it’s great that people are paying for this “content”, treating music as a fungible commodity ultimately devalues it and the craft and artistry of those that create it. That’s why I feel Steve Jobs’ legacy in the music business is mostly – but not completely – a positive one. At least not yet.

It Takes (At Least) Two To Tango: Using Pre-Recorded Music In Audiovisual Works

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So you’ve made a funny video of your cat that you want to post on YouTube and you think that if you put the Stray Cats’ Stray Cat Strut as the soundtrack it would be really groovy. Now, you know a little something about copyright law and you actually do the right thing and get permission from EMI Records to use the “master” in your video.  Correctly feeling that you’ve achieved a minor miracle by getting someone in the synch licensing department at a major label to pay attention to your request, you think you’re done, right?

Wrong. To use pre-recorded music in an audio-visual work, whether it’s a feature film, TV show, video game or a video on a web site, like YouTube, you need the permission of both the copyright owner of the recording (typically a record label) and the permission of the copyright owner(s) of the underlying song that’s embodied in the recording (typically one or more music publishers).  Why? Because the Copyright Act says so.  The permission that you need is called a “synchronization” license – as you’re synchronizing music to picture – or a synch, for short.

To better understand this, think about songs that have been “covered” a lot. Most jazz fans like me are familiar with the Johnny Hartman recording of Billy Strayhorn’s Lush Life, which many think is the definitive rendition.  My favorite is Nat Cole’s – the original, not the Cee-lo Green remix although I like that, too.  But there are dozens of recordings of that standard to choose from, including covers by Johnny Mathis, Linda Ronstadt and Robert Goulet.  The reason for so many covers is that the song is itself a copyrighted work, with a legal life separate and apart from any individual recording of it. And the copyright to the song is likely owned by one or more music publishers.

Therefore, in order to secure all the rights you need have your cat struttin’ away, you have to get the permission of the owners of the song, EMI Longitude Music and Rockin’ Bones Music, Inc. (at least that’s who BMI’s web site says are the music publishers) and permission of the owner of the particular recording of the song, EMI Records.  That means in order to put the track of your choice to your swingin’ cat video, you need to get three companies to dance: the record label and two music publishers.

Well, you say, “I’m not selling the video. Do I still need permission? And if I just put it up on YouTube or my own web site, what’s anybody really gonna do about it?” You’ll have to read my next post to get the answers.  Stay tuned.

© 2011 Marc D. Ostrow

The Blog Is Back

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Dear Readers:

It’s been way too long since I lasted posted anything on my blog. It’s not that there hasn’t been anything interesting to write about in the realm of copyright, music, my cats or any other myriad topics like “why can’t Roger Federer convert two match points?” No, I’ve just been too focused on other things: launching a new business for classical and jazz composers, assisting my clients with their legal issues, teaching college classes on music publishing and the recording industry, losing 20 pounds, doing a gig at Cornelia Street Café, writing new songs in preparation for an October 19 gig and finally learning to hit a one-handed topspin backhand.

However,  my friend and professional butt-kicker, Nancy Tierney, tells me that if I really want my law practice and my new business – which I hope to launch in the beginning of next year –  to soar, I’ve got to keep this blog thing going on a regular basis.  So, I’m going to update the blog by starting with some re-posts of articles that originally appeared on BMI’s Songwriter101.com site, where I am a member of the “faculty” (check out the site in a month or so for some new articles on Grand Rights and other topics) as well as some new musings written just for you.

So, if you’re interested in music, tennis, copyright and cats, please check back here regularly.  And if you haven’t already done so, please take my Copyright Quiz. Nancy says I should post something once a week and I’m going to try very hard to do it because I really don’t want bruises on my behind.  Comments are always welcome and appreciated. Thanks for reading.

Whack-a-Mole Reigns Supreme

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Dear Readers:

Welcome to my blog. I figure since I’ve got one now, I’d better put something up while ruminating on what to post next. So, below is an article I originally wrote back in June when the Viacom v. YouTube decision originally came down.

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In June, Louis L. Stanton, the federal judge hearing a copyright infringement lawsuit brought by Viacom and other “content owners” against YouTube, issued a 30-page opinion in YouTube’s favor.  This decision will affect anyone who makes a living by creating or marketing any kind original, creative work, like TV shows, movies and music.

More than two years and many millions of legal fees ago, Viacom, along with Paramount, BET, the English Premier (soccer) league and some music publishers, sued YouTube and Google, which had paid more than $1.6 billion for YouTube and the privilege of being sued.

Unless you’ve been living in one of the few caves without broadband for the past few years, you know that YouTube is the repository of millions of videos of varying degrees of quality, put up there by ordinary folks like you and me.  And many of the more popular videos are excerpts of TV shows like “The Daily Show” or are amateur videos that include music from their favorite bands.    Sounds like a clear case of copyright infringement, right?  Well, that’s where a fairly arcane section of the Copyright Act comes in.  Section 512(c) provides the YouTubes of the world with a “safe harbor” against copyright infringement claims if they follow certain procedures.

And what are these procedures?  Basically, an entity such as YouTube that has “information residing on systems or networks at the direction of users” has to have a “designated agent”, like an e-mail address where copyright owners can send a notice that the site has posted infringing material.  If the site promptly takes down infringing material after receiving a notice of infringement in accordance with the statute, then it won’t be liable for copyright infringement.

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