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Copyright Exam 2 Ch. 5-8
Terms in this set (61)
What is Section 106 "Bundle of rights"
Copyright Owner's 6 Exclusive Rights
What are the 6 exclusive rights?
1) To REPRODUCE the work in copies or phonorecords
2) To make DERIVATIVE WORKS based on the work
3) To DISTRIBUTE the work
4) To PERFORM the work publicly
5) To DISPLAY the work
6) For sound recordings, to PERFORM the work publicly by
DIGITAL AUDIO TRANSMISSION (streaming)
What is copyright infringement?
If someone other than the CR owner exercises one or more of the 6 exclusive rights w/o CR's permission
Allows the licensee to reproduce and distribute a song on a CD as a download in return for royalties
Public Performance License
Allows the lice license to publicly perform a song in exchange for royalty (TV, concert venue, business establishment)
Allows licensee to use a song in a movie, or TV show, or online
Master Use License
Allows the licensee to use a sound recording in a movie, TV show, or online video
Artists who own their own master license may license them to a record company which will make and sell downloads called?
P+D deal for pressing and distribution
Allows the licensee to make and sell copies of sheet music in return for royalty
Compulsory Mechanical License
Once the song is recorded AND distributed in US, anyone can obtain a license to record and distribute the song
-Section 115 of CR Act
-Owner cannot refuse to grant a license
Section 115 Requirements
-must file notice of intention to obtain comp. license w/in 30 days aftr recording and b4 distributing it
-must pay royalty for each copy distributed
-must pay monthly royalties
-must provide an annual statement of account
9.1 cents for up to 5 mins
1.75/ min if longer than 5 mins
What only applies to non-dramatic works and only allows user to make phonorecords?
Harry Fox Agency
-6.75% commission of money it collects
-Conducts audits of major record companies
Digital Performance Act of 1995
-created the right to publicly perform sound recordings by digital audio transmission Section 106
-Made the compulsory mechanical license available for "digital phonorecord deliveries" or "DPDs".
-Permanent downloads = 9.1 ¢ or 1.75 ¢ per minute
-Ringtones = $.24 per ringtone
Audio Home Recording Act of 1992
-Allows home recording of copyrighted works.
-Makers of digital audio tape recorders and digital audio tape pay a royalty to the copyright office. Exemption of computer hard drives has made AHRA almost useless.
-Requires that machines have SCMS (serial copying management system) to prevent piracy.
What is a Derivative Work?
A derivative work takes an existing work and ADAPTS it in some way to make a new work.
A derivative work must add new original expression. If the existing work is protected by copyright, the author of the derivative work must obtain a license to make the derivative work
Examples of Derivative Works
Example: Andrew Lloyd Weber took a book of poems about cats, added music and created the musical "Cats".
Degree of Protection
in Derivative Works
The copyright in a derivative work extends only to the original material contributed by the author of the new work.
Copyright protects a derivative work only if the preexisting material is used with permission.
The copyright owner has the exclusive right to distribute and to authorize others to distribute copies or phonorecords of the work to the public by sale or other transfer of ownership.
The Distribution right Section 106(3)
Record piracy involves reproducing copyrighted sound recordings and distributing the unauthorized recordings. Record piracy always involves a violation of the copyright owner's reproduction right and distribution right.
Penalties for Record Piracy
Criminal copyright infringement exists where a person infringes copyright for commercial advantage or private commercial gain.
Penalties are up to 5 years in prison and $250k
Derivative Musical Arrangements
Whether an arrangement is protected as a derivative work depends on the amount of original expression that the arranger has added. Arrangements must contain "substantial variations" to the existing work.
Federal Anti-Bootlegging Statute
Prohibits recording a concert and selling copies of the recording.
Penalties are up to 5 years in prison and $250k
Most states have laws that prohibit the reproduction and distribution of sound recordings. Unlike the Copyright Act, the state laws apply to recordings made prior to 1972.
The First Sale Doctrine
Once the copyright owner sells or gives away a copy or phonorecord, she has no further rights in that particular copy. This is why you are allowed to sell your used CDs and DVDs.
Record Rental Amendment Act of 1984
prohibits renting records without label / music publisher consent.
What is a Performance?
Live Performance (band in rehearsal space)
Recorded Performance (playing CD in car)
Transmitted Performance (YouTube, TV or Radio
Public v. Private Performance
Band in rehearsal space - PRIVATE
Playing CD in car - PRIVATE
YouTube, TV or Radio - Transmission is PUBLIC
Receiving at home is
4 Types of Public Performances
Performed at a place OPEN TO THE PUBLIC;
Performed where a SUBSTANTIAL NUMBER OF PEOPLE other than family and friends are gathered;
TRANSMITTED to 1) or 2);
TRANSMITTED by a DEVICE (received or not)
A Download is a Reproduction
not a Performance
Court reasoned that the consumer cannot hear the music while the song is being downloaded. A download is simply a transfer of an electronic file from an online server to a local hard drive.
United States v. ASCAP
(Yahoo and RealNetworks sued ASCAP)
History of Performance Rights
Public performance right first applied to musical works in 1909 Copyright Act. The Act provided that only for-profit performances had to be licensed.
ASCAP formed 1914
Formed by group of composers to collect public performance license fees.
Performing Rights Organizations
3 main responsibilities:
Issuing licenses and collecting license fees.
Monitoring public performance of music.
Paying songwriters and publishers based on the number and type of performances of their music.
Music users must have licenses from all 3 PROs
Performing Rights Organizations
ASCAP and BMI keep 15% of money they collect.
They distribute 85% of the money to writers and publishers.
For each song, a PRO pays 50% of the money to the publisher and 50% to the songwriter(s).
Each country has a PRO. ASCAP, BMI and SESAC have reciprocal agreements with these international PROs. They collect and forward money from their territories and the U.S. PROs do the same.
Limitations on the
Public Performance Right
Do not need license for:
The Teach Act for online courses
Religious services (not entertainment at a church)
Completely nonprofit (no admission fee, no one paid
Face to Face Teaching
Section 110(1) exempts teachers who use music in the classroom from getting a public performance license, provided the teaching activities meet the following requirements:
A. The performance can only be by students or teachers.
B. The performance must be in the course of face-to-face teaching activities and must be for teaching activities rather than merely for entertainment.
C. The place where the teaching activities occur must be a nonprofit educational institution.
Also known as the "small business exemption."
Business is exempt from obtaining public performance licenses if it uses "a single receiving apparatus of a kind commonly used in private homes." Applies to recorded music only, not live music.
## See pp. 118-119, examples 7.9 - 7.10 ##
Fairness in Music Licensing Act
National Restaurant Association lobbied Congress for this exemption to public performance rights licensing.
1) No admission fee;
2) Restaurants and bars must be smaller than 3,750 sq. feet. Other businesses must be smaller than 2000
Fairness in Music Licensing Act States
The National Restaurant Association persuaded Congress to combine the Fairness in Music Licensing Act with the Sonny Bono Copyright Term Extension Act, which added 20 years to the copyright term, making it
Life + 70 years. Copyright holders wanted the 20 year extension, so they accepted the trade-off.
Retail Record Sales
There is an exemption for performances made in connection with the sale of recordings and sheet music.
So Grimey's Records does not need to obtain performance licenses from the PROs.
Sound Recordings & Performance Right
-public performance does not apply to Section 106(4)
-when recording is broadcasted at a venue--record label and artist do not receive royalties
Digital Performance Right
in Sound Recordings Act of 1995
The DPRSRA changed copyright law 2 ways:
Created a performance right in sound recordings publicly performed by "digital audio transmission" (streaming).
Expanded the compulsory mechanical license provision to apply to digital phonorecord deliveries (DPDs).
So in the U.S., radio stations do NOT have to pay to play recordings. But if they simulcast (stream) over the Internet they must obtain a public performance license from and pay license fees to SoundExchange.
SoundExchange is a PRO that collects license fees from webcasters such as Sirius/XM Radio, Pandora, Apple for iTunes Radio, etc.
SoundExchange distributes royalties:
50% to the label or owner of sound recording
45% to the featured artist
2.5% to non-featured musicians
2.5% to non-featured vocalists
SoundExchange License Rates
Digital Service Providers like Pandora and Spotify must pay the following license fees to SoundExchange:
For free, ad-supported services:
17 cents per 100 plays
For paid, subscription services:
22 cents per 100 plays
"to show a copy of it."
Limitations on the Public Display Right
Single Image at a Single Site: If you buy a copy, you can display the copy to people who are present where the copy is located. For example, in a gallery or a museum.
Other Exemptions to
the Public Display Right
Distance learning (Internet)
Nonprofit educational broadcasting stations
Religious Services Exemption
If a church creates slides of song lyrics for display to the congregation during worship services, this exercise of the display right is allowed. However, the church would need a license to REPRODUCE the song lyrics.
# Christian Copyright Licensing International (CCLI) #
Assists churches in licensing. CCLI.com
The 1909 Copyright Act
& The Dual System
Until 1978, the U.S. had a dual system of copyright.
Under the 1909 Act, federal copyright protection began when a work was published with proper copyright notice. Unpublished works were protected by state law.
State Law Copyright
A work was protected by state law copyright until the work was published, or registered as an unpublished work. If a work was never published or registered, it could be protected by state law indefinitely.
Publication under the 1909 Act
Once a work was published or registered, it became protected under the 1909 Act. 1909 Act copyright lasted for two (2) 28-year terms. Maximum copyright was 56 years. If the work was not renewed in the 28th year, it entered public domain.
If author had transferred the copyright to someone else, the renewal right still belonged to the author. But the author could transfer the renewal term.
Termination of Transfer
of the Renewal Term
The author or his heirs can terminate any pre-1978 transfer of the renewal term. This right can be exercised during a 5-yr period beginning 56 yrs after publication of the work or 1/1/78, whichever is later.
The 1976 Copyright Act
Term of copyright is life of the author + 70 years.
NOTE: A copyrighted work's duration never changes, regardless of any transfers of ownership
Determining Copyright Duration
Works created from 1978 to the present.
Works created but not published before 1978.
Works created and published before 1978.
Works Created from 1978 to the Present
Copyright begins with work's fixation and ends 70 years after the author's death.
If a songwriter writes a song in 1990 and dies in 2000, the copyright will last through 2070
(2000 + 70 years).
If a work is created by 2 or more authors the copyright will last for the life of the last surviving author plus 70 years.
Two writers write a song in 1990. One dies in 2000, the other dies in 2010. The copyright will last through 2080 (2010 + 70 years).
All terms of copyright run to end of the calendar year in which they expire. Thus, a copyright created from 1978 forward will expire on December 31 of the year 70 years after the author's death.
& Works Made for Hire
The sooner of 95 years from Publication or
120 years from Creation.
Works Created But Not Published
Unpublished works that were protected by state law on 1/1/78 became protected for the life of the author + 70 yrs OR until 12/31/2002, whichever is later. If such works were published before 12/31/2002, copyright will not expire until 12/31/2045 (which encouraged publication).
Works Published Before 1978
1st Extension of the Renewal Term
The 1976 Copyright Act extended the second 28 year term by 19 years, for a total renewal term of 47 years. 28 + 47 = 75 years of protection.
A song published in 1951 would have been protected for 28 years, plus 75 years, until 2026.
But there was another extension . . . . .
2nd Extension of the Renewal Term
Sonny Bono Term Extension Act of 1998 extended the 47-year renewal term by 20 years. The renewal term now lasts 67 years. The maximum term for works in the initial or renewal term as of 1999 is 95 years:
(28 + 67 years).
Copyright Renewal Act of 1992
For works created from 1964 to 1977, renewal is automatic and the renewal period lasts 67 years.
Initial term (28) + Renewal term (67) = 95 years.
Example: A work published in 1963 had to be renewed in 1991 to receive the 28-yr renewal term,
while a work published in 1964 was automatically renewed for 67 years (until 2059).
Is a Work in the Public Domain?
Search the Catalog of Copyright Entries (CCE)
which lists and cross-references every registration or other filing made in the Copyright Office. The CCE is available in certain libraries and at the Copyright Office. You can also pay the Copyright Office to search its records for you.
The Rule of the Shorter Term
If Country A has a longer copyright term than Country B, instead of protecting the foreign work from Country B for its own term (under the national treatment principle), Country A has the option of protecting the work for Country B's term, which is shorter.
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