The film and entertainment industry constantly deals with Music and Music business. Composers and lyricists create works that filter through the Music Publisher to the general public in many ways. One such way is through the use of music in motion picture sound tracks, requiring a Producer to be knowledgeable with the music business. While the acquisition and licensing of music can create a myriad of obstacles, a Producer must be familiar with the subject if he plans to acquire music for a film.

Typically a musical composition is created by a composer and/or a lyricist, then copyrighted under the pertinent copyright act. (1) Previously an author would copyright his composition under the Copyright Act of 1909. Subsequent amendments exist to this act, along with a major Copyright Revision Act of 1976, which became effective as of January 1, 1978. (2)

Works copyrighted before January 1, 1978 would fall under the Copyright Act of 1909, calling for a copyright duration of 28 years, renewable for 28 years." (3) There also exist a possibility these works could fall under a Common Law copyright, which is affected by state law and applicable state statutes. (4) If a composition did not fall under a copyright, it was possible that a composition was in the public domain and available for use without acquiring certain rights to the work. This can result from a copyright having expired or a work never having been copyrighted.

The author was required to place a notice of copyright to the music to prevent it from falling into the public domain. This was accomplished by placing a letter c enclosed in a circle, directly on the work composed. These protected works were then acquired by a Music Publisher, who was granted or assigned various rights under the copyright, by the authors. Originally the Music Publisher dealt with the rights to allow the printing and sale of copies of sheet music and lyrics, which were mainly used in live performances by the individuals purchasing the material.

Therefore, the title of Music Publisher was appropriate as sales were the printed or published sheet music. Music Publishers would exploit their acquired rights to publish the composition through various means, including "pluggers", that would actually play the songs publicly.

With the advent of modern technology and various new means to reproduce musical works, the copyright laws have required much growth and change through the years. Present day copyright laws deal with numerous rights including;

a) the mechanical reproduction of the work, such as tapes, and CD's;

b) the publishing of sheet music; and

c) the synchronization licensing for films and video.

The duration of the copyright has also evolved, legislatively modified to allow for a copyright existence of the life of the author plus 50 years. (5) There are some variables in the length of a copyright, such as when there are co-authors, a corporate ownership, or the copyright is acquired as a result of a "Work For Hire" agreement. The duration of a copyright may also be affected by a transfer or renewal of a copyright.

While the revised Copyright Act of 1976 is complex in many ways, such as providing for Federal preemption and the elimination of Common Law copyright, (6) a Producer needs to be able to determine where a musical work might fall in this scheme. There is a possibility the Producer could recognize a composition lies in the public domain, or requires the need to ascertain who owns the rights. At minimum a Producer should have a basic knowledge of copyright to avoid legal issues concerning copyright problems, once he has started production on a film. (7)

Copyright applications are sent to the copyright office, Library of Congress, Washington D.C., with a specific copy of the authors work, depending on whether it is published or not published. The owner of the copyright may also transfer the copyright, with a recording of the transfer in the Copyright office under section 205 of the present act. (8) These records are necessary and available to inspection to determine who owns a particular copyright.

When transferring copyright rights to the Music Publisher, there exist an agreement for royalties to the writing unit, (composer and lyricist), leaving the publisher to issue licenses for the music's use. This contractually allows the mechanical reproduction by license on CD's and tapes, the synchronization license to merge with film and video, and live performance licensing, among other areas.

A royalty is passed back to the writing unit on basically a per unit basis from the publisher, or at times the publishers agent, if used to license the work. One such agent that is widely used is the Harry Fox Agency. Other royalties are involved in the music business such as for the performing artist who receives a royalty for his work on the piece. In addition, royalties or bonuses are paid to other artist that actually perform the composition with the artist, based on the number of sales to the public.

Songwriters can negotiate for the retention of the copyright on their songs, which would entitle them to more of the royalties paid on a published work. It has become more prevalent for artist to be the composer, publisher and performer, thus receiving royalties from all aspects of the songs use. Typically the revenues are divided fifty percent to the publisher and fifty percent to the songwriter. A writing unit that has a separate composer and lyricist would split the fifty percent royalty given to them.

Unless negotiated differently, the royalty is customarily divided fifty/fifty within the writing unit. If the songwriter were to retain fifty percent of the copyright she would be entitled to one half of the publishers revenues. She would have a total of seventy five percent, one half as songwriter, and twenty five percent of the publishing revenues. This is referred to as CO-publishing or participation with the publisher. (9)

The duties and responsibilities of the contractual agreement require the publisher to perform certain functions. These functions are primarily expressed as:

a) exploiting the composition;

b) issuing licenses, directly or through agents such as the Harry Fox Agency, to the users of the mechanical, synchronization, publication, transcript, derivative works rights, etc.;

c) collections of performance royalties, utilizing agencies such as ASCAP and BMI; and d) accounting of royalties and disbursement to the writer of his share.

The scheme of royalties paid to the author is a complex and negotiated process. Several performing rights societies become involved as a collective means for artist to deal with royalties among other aspects. Usually these societies are a nonprofit organization allowing royalties to pass to the publisher and author.

These societies include Broadcast Music, Inc., ("BMI") American Society of Composers, Authors and Publishers ("ASCAP") and SESAC, Inc. formerly named the Society of European Stage Authors and Composers, Inc. Only SESAC is privately owned of the three societies. These organizations are protective of the composer, as they almost never will pay the songwriters royalty to the Music Publisher. These organizations at times even police infringement on copyrights, bringing the necessary legal action to protect their members interest.

In past campaigns for the Presidency, both ASCAP and BMI became involved with the right to use copyrighted songs in fund raisers and rallies. According to the Daily Variety, November 7th, 1988 issue, songs were used without permission of the copyright holders by both presidential campaigns. The performing rights societies investigated the use of songs in relation to the Copyright Act of 1976, to determine if their members are entitled to protection and possible royalties. (10)

This is a typical example of how a music rights society protects an authors' interest in his music.

A Producer may find himself involved with music publishing royalties and their negotiations, but will be directly involved if II he commissions a "Work For Hire." (11) The Producer may choose to step into the shoes of the publisher as he will own the copyright. The Producer will have the right to license the reproduction of music by mechanical means, covering the creation of records and tapes.

The Producer will also license the right, if she chooses, for use of the composition in her film under the synchronization license, as she has the ability to exploit the composition commissioned to be made. This involves the music commissioned, to be meshed, or synchronized into a films sound track. The basis of the synchronization license is derived from the mechanical right and has developed through negotiations as it is not specifically discussed in the present copyright act. (12)

Music Publishers agencies can be helpful to a Producer in determining who owns a copyright and has the ability to license a work sought. As stated in The Business of Music, the rights a Producer must acquire for music in a motion picture are:

a) "The synchronization right, which is the right to record the music in synchronized or timed relation to the pictures in a film;

b) The right to perform publicly the music that is recorded under the synchronization right, and"

c) The right to make copies of the film and distribute the film to the public by sales or rentals." (13)

If acquiring rights, a Producer may deal with an agency used by a music publisher, or the publisher themselves. In either case, it is best to acquire as broad as license as possible, allowing the use of the musical work through all mediums and markets the film will reach. Having to negotiate for rights to an additional market place, when a film has become successful, may find the Producer in a less favorable position.

Even if a broad synchronization license is obtained, a performance license is also necessary for theatrical exhibition of the picture in the United States. In foreign markets, such as Europe, theaters are granted a blanket license for the performance of music in films. They are required to pay royalties to performing societies that equal a small percentage of the net box office receipts after taxes. Usually this amounts to one to two percent. (14) Such blanket licenses have been held invalid in the United States as violating antitrust laws covering monopolies.(15)

The alternative for a motion picture Producer acquiring rights of an existing song, would be to have original music scored for her film. This presents a totally different situation in that the composer/lyricist is hired by the Producer to compose music. The term used for this type of arrangement is to refer to the composer as an "Employee For Hire", or "Work For Hire". The composer agrees to leave the Producer vested with all rights under the copyright law. (16)

As author under the copyright law, the Producer now owns the rights of recording (mechanical), performance, and music publishing. He can and does virtually contract with himself for the synchronization rights to the music for his film.

A Producer who has become the author by copyright of a commissioned work, may find himself seeking multiple registrations of copyright, both for his music and the film at the same time. This is possible and can happen under copyright law with out the necessity of separately copyrighting the underlying musical work before distributing the film. (17) The copyrighting provisions for film were first provided under the copyrighting act of 1909 as amended in 1912.

If acquiring the use of non Work For Hire music, a Producer can commonly verify the ownership of music rights by searching the copyright office registrations. Mostly this is a task provided by a specialized firm such as the law firm of Cleary and Cleary of Washington, DC

More recent technological innovations have further complicated negotiations for the use of music in the film industry. The use of music synthesizers has allowed musical scores to exist without a full orchestration, as the music is composed electronically. The composer can deliver a package deal to the Producer less expensive than with hiring an orchestra. This has led to the composer seeking more revenue through a portion of the publishers share of income, but has been mainly resisted by the major studios to this point. (18)

The future of dealing with copyrights and intellectual property rights is definitely not certain. With the advent of new technology in the music industry, copyright laws will be required to grow and change. This has been proven in the past and will surely continue into the future. Music and Music Business is far more complicated than as presented in this paper, but some basic aspects to consider have been touched upon.

Hopefully at minimum this overview has allowed a Producer to be aware of the construction of music, rights, copyright and royalties under today’s copyright act. Being able to have a starting place to recognize an issue or possible problem can avoid future legal matters for today’s Producers.

FOOTNOTES

1.) 17 USC 101 et seq (1909).

2.) 17 USC 101 et seq (1978), a revision of the Act of 1909, which became effective January 1, 1978, dealing with the many technological and scientific changes and advancements of the recording industry.

3.) 17 USC 302 (1909).

4.) Taubman, In Tune With the Music Business,
(1980).

5.) 17 USC 302 (1978).

6.) See, Brylawski, E.T. An Extraterrestrial Caught in a Copyright Dilemma, 52 The George Washington Law Review, 395 - 407, at 396, (1984).

7.) Id. at 398, The motion picture ET involved a copyright problem where E.T.'s visual image and appearance was not arguably copyrighted and protected, thus allowing another company producing an ET doll to allege a valid copyright. The question was whether (ET) the work was wholly original as preexisting material.

"As to Universal Copyright, JAR Sales (the Defendant) argued a prior publication of the appearance of the character ET in a doll, and prior publication of text, made registration of the movie invalid for failure to allege the characters prior publication."

8.) See, Shemel and Krasilovsky, This Business of Music, (4th. Ed. 1985), also, Taubman, In Tune With the Music Business, (1980).

9.) Clark Boardman, 1986 Entertainment, Publishing and the Arts Handbook, (1986), Id. at 210-211.

10.) 221 Daily Variety 46, pg. 18 (1988), Copyright infringement cases have even involved the same artist, such as the pending case in San Francisco, dealing with Fantasy Records. Fantasy owns the copyright to "The Old Man Down The Road," a work composed by John Fogerty and claims it was plagiarized in his recent song, "Run Through The Jungle". This shows a twist to copyright laws when a copyright has been transferred or sold to another. The Plaintiff alleges that Fogerty copied from himself in his new song, and has this right under law as owner and holder of the copyright to Fogerty's first song.

11.) See, Film Composing Agreements: Business and Legal Concerns, Mark Halloran 5 Loyola Ent. L.J. 1, (1985), Discussing royalties for piano copies, non piano copies (folios), public performance, mechanical and synchronization licenses.

12.) Shemel and Krasilovsky, More About This Business of Music,
(4th. Ed. 1985).

13.) Shemel and Krasilovsky, This Business of Music, (4th. Ed.
1985).

14.) Shemel and Krasilovsky, This Business of Music, (4th. Ed.
1985).

15.) Id. at 280, See Alden-Rochelle vs. ASCAP, 80 F. Supp 888-900 (S.D.N.Y. 1948) for a discussion of the case. See, The Music Business and the Sherman Act: An Analysis of the Economic Realities of Blank Licensing, 3 Loy. Ent. L.J. 1 (1983).

16.) See, Clark Boardman, 1986 Entertainment, Publishing and the Arts Handbook, (1986). Id. at 220, The intent to create a Work For Hire is important and supports the relationship with the expression of the following elements, express written contract for hire, exclusivity of services, specific written contract of assignment of the copyright, amount of remuneration, any prior course of dealing between the parties, or custom and practice in the industry. See also 17 USC 101, works for hire, section (b) listing specific works that may be considered a work for hire.

17.) Colby, Music in Motion Pictures, 30 Journal of the Copyright Society of the USA, 34-37, (1982).

18.) Clark Boardman, Film Composing Agreements: Business and Legal Concerns. 1986 Entertainment Publishing and the Arts Handbook, (1986).