New Entertainment Law Podcast episode! http://ping.fm/s2r9S
Trial Needed to Sort Out -Jay-Z’s Copyright Fight – Interesting review of trial ct ruling re: SOL and damages in copyright suit: @csusanw http://ping.fm/6sJQ2
Collecting Performance Royalties from PROs
Public performance royalties are generated from public performance of music, live, by broadcast, or in synchronization with visual images. Performance rights organizations (PROs) such as ASCAP, BMI, or SESAC collect on the public performance of music registered in their catalogue by composers and publishing companies who have their music placed on radio, television, or film.
In general, PROs pay composers and publishers based on “cue sheets” submitted for television or film performances; average radio plays for radio performances; and set lists provided by artists’ reps for live performances. For film, t.v., or commercial web-uses, usually a “synch license” will be obtained directly from the rightsholder (or authorized administrator) for a flat rate which permits performance of the music in connection with visual images.
For foreign performances, royalties are calculated much the same way. Foreign PROs such as PRS (UK), SACEM (France), GEMA (Germany) JASRAC (Japan) all have mutual collection agreements with one another and they all account to US-based PROs such as ASCAP BMI and SESAC, who in turn account to their members. However, the composer, administrator, or publishing company must still register with the country’s designated PRO and submit to them their requisite “cue sheet” or set/play list in order for them to track when, where and how much your music has been publicly played. When it becomes cost-effective, some publishing companies will contract a “sub-publisher” located in the country of performance in order to avoid the hassle and delay of international monitoring.
If you are a composer and own your own publishing company, make sure that you register both as separate entities and have all music catalogued under both entities through your designated PRO. Remember to keep your cue sheets until you get confirmation that your music is catalogued properly. It is the responsibility of both the composer and publishing company to communicate with their designated PRO that their music is properly catalogued and that their cue sheets have been submitted correctly. ASCAP even has an alert form to let them know of any upcoming activity: http://www.ascap.com/musicbiz/cue_sheet_corner/.
Also, it’s a good habit to timely register your music with the Copyright Office (www.copyright.gov). Performance royalties derive from the sale of the musical composition (as opposed to the sound recording). Ownership over the sound recording is filed using the SR form. Ownership over the musical composition is filed using the PA form, which you can now register online and by mail.
The key is to make sure to keep all records on what music is being played, when and where. Often time, a royalty check can take anywhere from 3 months to a year before you notice an error or mistake, so keeping records or partnering with another publishing company, can help to keep track of the revenue generated from your public plays.
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This article is intended for informational purposes only and is not offered as legal advice or legal counsel in any way. For questions regarding this article please contact: email@sakucollins.com.
Digital Sampling
One major issue that artists have to face is that of sampling and whether samples need to be cleared. For those not in the know, sampling is defined as ”taking a portion, or sample, of one sound recording and reusing it as an instrument or element of a new recording.” (cite 1) There is a common misconception that if an artist uses a sample under a certain number of bars or under a certain time limit that such use is okay. That, however, is not the case.
The law on the issue became settled in 1991 when rapper Biz Markie was sued for his use of portions of ”Alone Again (Naturally)” by Gilbert O’Sullivan on his album I Need a Haircut. In Grand Upright Music, Ltd v. Warner Bros. Records, Inc. 780 F.Supp. 182 (S.D.N.Y. 1991), Judge Kevin Thomas Duffy ruled that ”the defendants in this action for copyright infringement would have this court believe that stealing is rampant in the music business and, for that reason, their conduct here should be excused. The conduct of the defendants herein, however…the copyright laws of this country.” The artist knew he had to clear the samples, and even against the advice of his counsel they chose to use the samples. This was a clear violation of the law.
As the law stands now, copyright protects musical recordings in two different ways. First, the composition is protected, including both the lyrics and the music notation as it is written (17 U.S.C. 102(a)(2) affords protection for ”musical works, including any accompanying words,” which are fixed in some tangible medium of expression). Second, the sound recording itself (a.k.a. the sound as it is affixed in a tangible form, like a compact disc or in a digital file) is protected by 17 U.S.C. 101, which affords protections for work that results from ”the fixation of a series of musical, spoken, or other sounds, but not including the sounds accompanying a motion picture or other audiovisual work.” Unauthorized sampling impacts each copyright.
In short, artists and producers should clear any samples they use. And if they choose not to, they need to make sure that any record labels or other entities they work with need to be aware that the sample the artist/producer used is not cleared. Otherwise, it could come back and bite the artist or producer in the ass.
1. http://en.wikipedia.org/wiki/Sampling_%28music%29
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This article is intended for informational purposes only and is not offered as legal advice or legal counsel in any way. For questions regarding this article please contact: email@sakucollins.com.
Welcome to Our Blog!
Welcome to the new blog by attorneys at Saku Collins Entertainment and Media Law Group, PLLC. The Blog will explore various media and entertainment law issues in an attempt to provide the artists of Seattle with information they might need. This blog, however, is by no means providing legal advice and the readers of the blog are not clients. Please enjoy the blog. If you have any topics you might like to see covered please contact us and we will do our best to do so. Just drop me an email to cameron@sakucollins.com or send one to Mark at mark@sakucollins.com.
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Saku Collins Entertainment & Media Law Group, PLLC
