Welcome to Copyright Law Radio, sponsored by Traverse Copyright Law, internet lawyers specializing in copyright infringement, copyright licensing and copyright registration. Now here’s your host, Damien Allen.
Damien Allen: Good afternoon, and welcome to Copyright Law Radio. My name is Damien Allen, and today we are speaking about copyright nightmares in the music business. Of course, with us as always is John DiGiacomo, from Traverse Legal, PLC.
John DiGiacomo: Hi, Damien.
Damien Allen: Welcome to the program, John. Today we’re talking about the copyright nightmares in the music business, and we’re doing it from a different angle. Usually when we discuss copyright and copyright infringement, we’re talking about copyright holders who are big music corporations and stuff like that where people have been downloading songs illegally or what not. Today we’re talking about what happens on the other end of it. You’re a member of a band. Maybe one of your band members has gone off and started his own project and is using your tunes that you co-wrote or wrote on your own without your permission. These are the type of things we’re going to talk about today, but I suppose we should probably start off with what is a copyright and why do we need one, John.
John DiGiacomo: Copyright law protects works of authorship that are fixed in a tangible medium of expression. Exactly what that means is that copyright law gives a limited monopoly to the author of a work, author being the statutory term, but it could mean a musician as well, for a limited period of time. That monopoly, it is said, is supposed to give the author an incentive to future creations.
Damien Allen: Currently the length of copyright for musical work, if I remember correctly, is 70 years after the death of the author of the copyright.
John DiGiacomo: That’s correct. It’s the life of the author plus 70 years.
Damien Allen: Now, when you’re copyright a song, I guess the next think is, what would the definition of the components of the song the authorship should be in copyright? What are the things that are legitimate, let’s say, this is mine, this is my work, this is what I’m copyrighting? What are we looking at?
John DiGiacomo: That’s a very difficult question to answer, and part of that is because of the way the Copyright Act actually defines ownership and authorship under the statute. Section 101 of the Copyright Act, which is the section that defines terms that are used within the Act, defines a joint work as a work that’s prepared by two or more authors with the intention that their contributions be merged into an inseparable or independent parts of a unitary whole. Essentially what that language means is that when we look at who owns the copyright and the copyrighted work, we’re looking at what the intention of the parties is. For example, if you have a band and you have several members in the band, if the intention is to merge the component parts, the bass and the drums together into one whole, then they are joint authors or owners.
Damien Allen: Okay, so I’m the author of a song, I came up with this beautiful melody, I built all the rhythm parts, I wrote the lyrics, I walk into the room, there’s my band members, I give them a copy of this, I say okay, we’re going to record this song tomorrow as a band, work on parts, they come in, they’re playing the rhythm and melody that I wrote for the song, I’m singing or the singer is singing the lyrics that I wrote for the song, we get down to the end of it, it’s all recorded, I’m filling out forms for the Library of Congress, and the drummer looks at me and goes well, you know, I wrote that fill in there, does it then become he has rights to authorship on that song?
John DiGiacomo: Again, it’s really an ad hoc interpretation of the situation. If, in fact, he did not intend to be a joint author to that song, then that component of the song would not be authorized under the Copyright Act. With that said, there is a section of the Copyright Act that covers situations like that, and that is called the Work Made for Hire Rule. Under that Rule, the author or the employer of the song, for example, can have employees underneath him. The work that’s created by an employee within the scope of his employment is what we call Work Made for Hire so that the employer is actually the author of the work for copyright purposes and is the owner of the copyright. For example, in your situation, if the writer of the song and the writer of the melody felt that the drummer was, in fact, an employee of his, there would be an argument that the drummer was specifically along for the ride, and the employer or the artist created the song himself.
Damien Allen: Speaking of similar situations, I’ll now bring in a gentleman who we’re going to call Bob through the ongoing argument that he has within his band. We’re not wanting to upset either side of this argument, but we would like to get the story, and of course, this is an example of what happens with bands every day. Bob was a party of a musical project over the past year that involved a band that has some notoriety overseas, has been an existing entity for almost a decade here in the United States, a limited amount of success in the United States, though fairly well known overseas. The band has been pushing along with several members off and on throughout the past seven years, but has been very active. Bob was invited to join this project to see how things went. They got into a writing situation. Welcome to the program, Bob.
Damien Allen: Would you like to explain exactly what happened with the situation please?
Bob: Well, me, I joined his band. Anyways, I met with this guy, and we started working on one of his songs, something that he wrote a guitar rift to or basically a guitar rift. I started adding onto the guitar part, arranging things around, trying to make it sound more like a song that’s more enjoyable, and ended up writing lyrics to it and then did drum work, and I also did guitar work. It started with the first song, and I did the vocals. I ended up actually recording everything. He didn’t even record his own guitar parts. In some ways, that changed it a little bit because it didn’t have that same sound that he had because I’ve been recording since I was 16. From the first song, things started flowing. We started doing more and ended up getting more members in. Mostly I was doing, he would write rifts, and then I would write vocals. You can’t really say I wrote the bass lines, but it’s based off the guitar parts, so technically I didn’t write that, and the drums are still based off what the guitar’s doing. There was some songs that I wrote on my own that he didn’t co-write with me at all, and for some reason right now he thinks that he owns them too because we’re working towards the project. That’s where I’m kind of upset about that.
Damien Allen: Now, in this situation, there was not a written agreement between the two of you.
Damien Allen: Okay. You’ve entered in, of your own free will, to a project you and this other party have been writing songs separately and together towards an end goal of creating an album or seeing how it would flow to create this album.
Damien Allen: He eventually, after the project disbanded, sent you a threat letter from his own record label that he himself is the owner of, stating that you are not allowed to use any of the material that was used during this process, is that correct?
Bob: Yeah. Even though I contributed guitar parts and lyrics and sang on the album. Again, that kind of hurts. That’s not really cool. I’m kind of left with, you know, it would have been cool if we could have shared the songs or something like that, but I’m even more scared about my own songs because I’m using them in the band that I’m in now. I really don’t want to be playing a show and this guy shows up and “well, then are my songs”. I’ll be like, “no their not”, and this big legal thing happens. It really worries me.
Damien Allen: Now, John, in this situation, if my understanding of the letter of the law is correct, the live performance rights are exclusive outside of the recording realm, correct?
John DiGiacomo: They are. They’re one of the enumerated rights under the Act. Among distribution, the public display or performance of a work is separate right itself.
Damien Allen: In this situation, as there was no written band agreement or a verbal band agreement, and nothing has been mentioned about this up until the threat letter that Bob received, what would be the legal leg he has to stand on right now?
John DiGiacomo: Well, the argument is that Bob never intended for these contributions to merge into the project as a whole. I think, in short, it’s going to come down again to that argument over the intention of the parties. Did the parties intend to prepare this to be inseparable or is it supposed to be inter-dependent parts? If Bob, in fact, wanted his contributions to be copyrightable in their own right, then he has his own copyright rights, and he can request a reasonable license fee for those rights, and the other party will have to request those rights in order to use them. But if, in fact, they are both joint authors, which is what the other party will argue, then in reality Bob also has another option. Under a joint authorship situation, Bob is entitled to royalties to the extent that this other party receives money for this project. Joint authorship is what we call tenants in common. Tenants in common gives parties the non-exclusive rights to use the work that was created in the joint authorship arrangement. If the other party uses the works, he has to account to the non-using party for any royalties that are made for that use of the work.
Damien Allen: Now, it’s also my understanding that if these works as they were created were not filed under the Library of Congress Copyright form, at the end of this project or sometime after the end of this project, Bob received a threat letter from the other party stating no longer use this material, but this material was recorded in Bob’s recording studio, including his own songs, what rights under the Copyright Act or under the Berne Convention does this protect Bob?
John DiGiacomo: Well, the fact that Bob recorded this song in his own studio is a significant element. Under the Work Made for Hire doctrine under the Copyright Act, if the other party was to argue that Bob was simply an employee, the actually fact of the recording in Bob’s studio would be an element that could be used either in his favor or against him. Under the Work Made for Hire doctrine, you look at common law factors to determine whether or not somebody is an employee or not. Among those factors are whether or not they used the tools of the employer or whether they used their own tools. For example, if Bob was to come into a situation where he was to use the employer or this other party’s studio, this other party’s guitars or drums or microphone equipment or maybe even a mixing board, Bob could be considered an employee. But when Bob brings his own tools to the situation, there’s a better argument that he is not, in fact, an employee, but that he is an independent contractor or is creating this on his own.
Damien Allen: We’re out of time for today, and there’s still much to discuss about this subject. Please tune in next time for the rest of our conversation with Bob and with John DiGiacomo of Traverse Legal, PLC, with more on copyright nightmares in the music business from the band perspective right here on Copyright Law Radio. My name is Damien Allen. Everybody have a great afternoon.
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