It doesn’t say that at all man, they are your words. It doesn’t say anything at all about the master copy being intellectual property. It doesn’t say anything at all about the master copy period. All five paragraphs are speaking specifically about ownership of intellectual property, not recordings.
The only part about recordings is a sixth paragraph:
(6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.
OK hands up, they use the word ‘copyright’. They are speaking here specifically about broadcasting the recording. Exactly John’s experience when the BBC broadcasts his song, and the PPL collects and pays the royalties owed.
They are not saying that a master recording is intellectual property, because it isn’t. It’s property, certainly, but not intellectual.
YES!! YOU CAN!! That recording is a thing, and that item thing is copyrighted. How do you not see that the scope of our copyright law covers the recorded thing item based on the definitions of the scope in law I just cited?
BOTH the song and the recording are copyrighted. Please re-read our law: 17 U.S. Code §102 (a) 7
Without going through a long lecture on how legal citations work the (a) is this:
“Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression”
and the “7 sound recordings” at the end of the citation means that (a) applies to sound recordings.
BOTH, the sound recording THE MASTER RECORDING and the musical composition are protected independently of one another. All of the rights the fall within the scope of copyright are applied to BOTH.
[quote=“AJ113, post:81, topic:1135”]
It doesn’t say anything at all about the master copy being intellectual property. It doesn’t say anything at all about the master copy period. All five paragraphs are speaking specifically about ownership of intellectual property, not recordings.
The only part about recordings is a sixth paragraph:
(6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission. [/quote]
no no. 106 lays the framework for 107-122 which is a declaration and assignment of rights. The definition is back in 102. Yes, some of this stuff doesn’t apply. That’s because everything that could conceivably have to do with copyright is all dumped in this one section.
Go back to 102 (a) 7. Regardless of how this appears to you in light of UK law, it is construed in the US as a protection to the intellectual property. As it also applies equally to the musical composition. They are both intellectual property. Just in different forms. An example. Two different physical disks of the same musical composition are both intellectual property, and protected by the same set of statues.
What is that a necessary and sufficient means of determining? You can infringe on a copyrighted property many other ways.
A law dictionary will tell you something along the lines of plagiarism being the act of passing something off as your own.
I could plagiarize the mechanical by saying I played on a composition I didn’t.
I could plagiarize the musical composition by saying I wrote the composition when I didn’t.
…I’m pretty sure if I passed off a recording I didn’t produce for my sound engineering finals they could penalize me for plagiarism. That seems to fit the intuitive description of plagiarism.
Either way its copyright infringement because both are protected.
Here’s what happened. In 1909 the US government realized that it wasn’t enough to protect the written score of a musical composition. The fixed mediums needed protection. Especially since there were multiple groups making recorded copies of public domain songs. So what do we do? Trademark? Not a fit. Doesn’t work. Patent? Utility and provisional patents…can’t apply that here either. So what is a sound recording?? AH! Its we’re gonna call it intellectual property and cover it under the scope of copyright.
Forget the composership. We both agree that the music composition is copyrightable.
This as GOT to do with your understanding of what copyright is. As for the physical ‘thing’, all of the contents of that thing are instantly protected the moment you bounce it to a off your 2 bus because the law recognizes the disc as and contents on the disc as a one piece of intellectual property. There is no distinction under US law. The IS a distinction between the ‘performance’ which is defined as the ‘expression of the idea’ (this is the sound recording) and the ‘unique idea’ itself (this is the musical composition).
By our law, a fixed recording is STILL retains its intellectual protections, even after it has been fixed bounced from your 2 bus. And it also retains its intellectual protections as it is duplicated to discs. Now the possession of 10 boxes of duplicated CD’s is irrelevant to IP laws. However, the re-creation distribution of the CD’s must now account for the fact that they are still protected intellectual property. But just because possessing 10 boxes of duplicated CD’s is irrelevant does NOT make everything else, because the heart of this discussion revolves around the fine line between selling and licensing them. When you buy a CD you acquire possession of the physical disk and have some limited rights in how, where, and when you can listen to it. But I can do whatever the fuck I want with it right? No! You can’t! You absolutely can not because you don’t own it intellectual property!!! Possession of the physical disc is transferred, but both the musical composition and the expression of that composition remain the intellectual property of whoever the hell created it, from the very moment they created it.
A copyright is a set. A lot. A bundle. A basket. A collection. A boat full. Of various rights that ALL apply instantly to the sound recording and the musical composition. The intellectual property protections apply to whatever medium that sound recording travels on.
OK I accept that the term ‘copyright’ is applied to recordings for legal purposes.
But it’s just a word, it’s use in legal documentation doesn’t change the fact that the owner of the master recording has specific rights which are completely different to the owner of the song’s copyright.
That much is obvious. If I go and record my own version of Led Zep’s Stairway to Heaven, (Like Dread Zeppelin, The Far Corporation and London Symphony Orchestra did,) I will own the master rights to that recording, but I won’t own any rights to the song.
Many shops play non-original, but similar versions of well known songs as background music. That’s because they would rather pay a few session musicians to knock up a quick version than pay recording performance royalties for the real thing. They still have to pay for a licence for the actual song though, of course.
I’ll take that. The right to distribute and duplicate a master recording can be attained without possession of composership/music composition rights. Partial copyright privileges.
The automatic assumption of rights only applies to the person who originally created the original. So no, being in possession of a master (in this case it would be the master recording of a derivitive work) isn’t the same as owing the master rights. For example, you wouldn’t have ‘master license use’, which would allow to you place your version of their song on a movie soundtrack. I think the best way to put this is that you have some rights to that master. I mean…if Dread Zeppelin wanted to use your specific derivative master, they can’t come and take it by force or force you to give it up, because that exceed the scope of their rights lol.
Here’s what I think this means for the big question…about the money:
Lets say a master sound recording is licensed, and the label is the licensing agent, and money is generated though a licensing transaction that does not involve physical disk sales. Does the sale of the licensing to Coca Cola or Nike count toward sales revenue? Most companies say yes, but they keep the licensing revenues separate from the physical disk revenues, and those are separate from digital download revenues. For some companies, the combined publishing and the licensing revenues which are generated over time (excluding physical sales) seem to exceed the physical sales. The problem is you get a company like Disney, that lets Warner handle the soundtracks to their movies. Disney is not a Warner subsidiary, so only physical disk sales from “Beauty and the Beast soundtrack” show up on Warners books, where as enormous franchise licensing revenues show up on Disney’s books for master sound recordings, which they might have dumped on a computer chip and stuffed inside of talking-singing childrens toy like Mrs Pots the teapot. See the discrepency? They’re not selling physical discs, but they’re sure as hell monetizing the master recording.
You asked me earlier how royalties are 3%-7% or whatever figure, and how I reasoned that could possibly exceed ‘sales’. Since the publishing royalties were so small, why would the labels be concerned with it? First, the record label doesn’t receive the small shit royalty. The artist does. Second, What does that have to do with publishing?
Here: If the label owns publishing, by definition of publishing, they can re-purpose, re-create, and re-license the same damn Disney songs 100x over. So the licensing revenues from the publishing and continuous recreation of masters eventually outgrows the sales from recorded physical disks.
So a label owning 100% of publishing doesn’t mean the label can only get say 7% royalty on the song. That compulsory licensing standard in the US doesn’t prevent you from getting other 93%. The publishing allows you to keep re-creating unlimited amounts of new master recordings, and collecting the licensing. Where as if they were a licensing agency without the publishing, Disney would have to keep going back to Elton John every time they wanted to use music on a lion king toy. I know that we’re talking about master recordings, not toys, but toys like a Disney themed music box are one of many examples where a master recording generated revenue without any sales from a physical disk.
Most of the disagreement here is down to terminology and misunderstanding, as opposed to actual differences in opinion.
There are two areas where I disagree with you:
A recording is not intellectual property, it is just property. (Although that wording may boil down to semantics and terminology too).
The point is that the recording’s copyright is different to that of intellectual property. That’s why it has its own ℗ (phonogram) symbol. Here, the ‘copy’ in ‘copyright’ means duplicate/replicate/reproduce, i.e. the right to duplicate the recording. So when we talk about ‘publishing’ in connection with a recording, we simply mean ‘selling’ - or ‘monetising’. i.e. we are selling duplications of that recording - on a CD, as a download, as streaming revenue, using it in a disco, broadcasting it etc. Basically using the recording to generate revenue of some sort. This is also known as ‘licensing’.
To summarise, in the case of a recording:
Copyright = the right to duplicate the recording and generate revenue from those duplicates.
Publishing/licensing = the act of selling duplicates of the original recording or generating revenue from them (monetising).
When a recording is made, there is a second copyright, for the underlying song itself. That is intellectual property. So the copyright for the song refers to the use of the song (not limited to a specific recording of it) to generate revenue in any way. So if that song is recorded by someone then printed on CDs or broadcast on TV or downloaded, the author should be paid mechanical royalties. If it is performed in public, the owner of the song should be paid performance royalties - even if the owner is also the artist, performing their own song at their own gig.
‘Publishing’ in this case has a more conventional meaning. It refers to the royalties due from the actions described above. To avoid the song owner getting lost in the quagmire of publishing admin and legalities, they usually hire a specialist publisher, who collects all the money due, takes his cut and hands the rest over to the song owner.
So it is possible for a recording to have separate copyright owners, one for the recording and one for the underlying song. Indeed, that must be true, since not all artists write their own songs.
Again, it depends what you mean by ‘master license use’. If you have made the recording, you can do whatever you like with it, because you own it. Of course, you don’t own the copyright for the underlying song, so you couldn’t collect publishing royalties for the intellectual property, they would be paid to the song’s owner. but if your recording had made it to a Hollywood movie, you wouldn’t be concerned about that, since publishing royalties are very small compared to revenue generated from the master recording.
As I have said all along, publishing (i.e. collecting royalties due from the use of the underlying song) usually generates only a small fraction of revenue compared to revenue from the master recording, except in rare cases where a song is so ubiquitous that it is performed by multiple individuals all over the world - like Happy Birthday, for instance.
I’m happy to assume your terminology is consistent with British law. However, if we grant this assumption, then US and British law is an entirely different language.
I’ll try to re-iterate your statements with the parallel equivalent as our legal translation.
Ip under our law = general property under yours.
US ‘sound recording copyright’ = not considered IP under UK law
Our ‘rights of duplication’ = your entire copyright?
Then our ‘rights of distribution’ = your publishing.
Your licensing = ???
In the US, licensing is a permission. Licensing revenues are what are generated from licensing sales. Licensing sales are specific form of sale that implies the owner granted permission to someone ELSE to do something with whatever they own or control. You can not license a product to yourself.
The licensing sale exists regardless of weather the licensee actually made any use of said permission. As soon as the licensee paid for the permission, the licensing revenue was generated.
[quote] (licensing)…revenue of some sort. [/quote] So there are many revenue streams that involve a master sound recording but have nothing to do with the licensing of it.
‘musical composition’ = ip
Restated:
1 Our ‘rights of duplication’ = your entire copyright?
2 Our ‘total rights’ or ‘complete rights’ = any use of the song (2a) licensing?
3…
This is not how it works in the US. Restated:
These are not mechanical royalties in the US. Mechanical and synchronization royalties are derived from completely separate and distinct parts of our copyright laws.
mechanical
this is catagorized under public performance royalties in the US and recognized as such by the HFA.
2a) this is a synchronization royalty. NOT a mechanical royalty in the US
**could qualify as mechanical
your ‘specialist publisher’ = our royalty collection unions and royalty collection agencies.
Not the job of the publisher here. Different agencies with different administrative rolls in the US.
I don’t know what your word is for sync license, master use license, or master license.
What this means here, in plain English is that you do not have the authority to authorize my song in a motion picture REGARDLESS of weather you were the one who recorded your own derivative work (that means your own version of my song). If I say no, it does’t get used. End of story. It is beside the point that you can’t collect royalties for the ‘song side’ as you call it. You don’t even have the authority to allow the film music supervisor to use it, regardless of your willingness see me get the royalty.
Weather I get paid a big or small royalty from your derivative master is irrelevant since the film company requests authorization for the Master Use License from me. Not you. They request authorization for the the Sync license from me. Not you. And they need BOTH to add your derivative recording of my song to their movie. If I don’t like your recording, I grant their sync license to let them use my song, but deny the master use license pertaining to your specific version of it. That means yes, they can use my song, but I want a different recording of it used.
When they request a sync license and master use license, I can charge them $10million for it. And here in the US, the publisher holds the power to grant or deny the license, as well as set the prices. Not the songwriter.
Bottom line here. Publishing revenues are ridiculously insanely large (Under a US definition of publishing). As all licensing privileges are derived from publisher consent.
I think…
Your definition of publishing revenue = our definition of songwriter royalties.
By your definition of publishing that’s probably true.
Holy shit - its a good thing you’ve brought the differences of this stuff to my attention. The graphics modeling engineer for my new video game is from Germany. I’d better have a chat with the project director and bring this to his attention. We may have had all kinds of loop-holes in our NDA agreements regarding the ownership of the rights to this gaming project. The rest of us are from the US (North Carolina, South Carolina, California, and California).
If a film company asks you if they can use my version of your song, and you say no, they probably won’t use it, out of courtesy, but it’s not your right to stop it being used, it’s only your right to collect song owner royalties. The film company isn’t even under any obligation to ask in the first place.
Not sure of your meaning of “Master Use License”. They may or may not seek permission from you as the song owner, I don’t know how it works exactly. Regardless, they are not bound by law either to ask, or to observe your response, they only need to declare that your song has been used so that you can collect song owner royalties. That must be true, because sometimes the true owner of a song is only discovered after the fact, as the result of a lawsuit. In these cases, what happens? Is the song taken out of the movie? No, the correct money is paid to the song owner.
The point of copyright is that the correct money is paid to the correct person, not that the copyright owner can prevent recordings of his song. The film company would list the song as being used in the movie, Harry Fox would collect the money, (presumably the film company has a blanket license) and they would pay it to you as the underlying song copyright owner, that’s the process.
I mean, in the real world, why would anyone even say no? You’re a songwriter, and your song is about to be featured in a Hollywood bolckbuster. Isn’t that exactly what songwriters want?
In any case, my original point wasn’t specifically that I can record your song and have it feature in a movie, that was just an example you gave. The point is that I don’t need your permission to record your song, you can’t stop me. I can record it, make a million a pounds from monetising that recording (because I own it) and there is nothing you can do to stop me. As long as I make it clear who wrote the song so that you get your royalties as the song owner, that is the copyright system in action. Furthermore, the amount of money you get as the song owner will be nothing like the money I make from monetising the recording. And that is my point throughout this discussion:
Monetising the recording = big bucks.
Royalties from the song ownership = very little by comparison.
The system is deliberately set up that way, so that it is not prohibitive for an artist to record songs that he has not written himself. Yes, money is due to the song owner, that is only fair, but not a huge amount. The music industry wants and needs it to be that way, so that music - not the lawyers - is the winner.
Can you give me a link for that please? I can find the law which states that a recording has copyright, but I can’t find anything which says that a recording is intellectual property.
Our record company is German, and we are currently in dispute with them. They say that German copyright laws are different to the EU, (which is bollocks in our opinion) but it’s certainly well worth checking out in your case.
Just curious how that was applied back when the RIAA was trying to prosecute people that were uploading copyrighted songs to file-sharing software back in the Napster/Limewire days. They may still be doing so on things like BitTorrent perhaps? As I understand it, the RIAA was trying to prosecute major violators based on “copyright infringement”, but was it for both the song publishing and master recording, or just the recording? I think this is a pretty concrete example of applying the laws you are talking about.
BTW - I’m enjoying following this conversation. While it is complex and lengthy, I’m trying to get something out of it. I didn’t realize the subject could be so contentious, and how differently (perhaps) each country defines such things.
[quote=“AJ113, post:92, topic:1135”]
Yeah that’s the part where we disagree. [/quote]
What do you find if you Google synchronization license or sync license? If nothing comes up, add the keywords: music, sound, US law. I wonder if the search engines are turning up different results based on our locations?
[quote] The film company isn’t even under any obligation to ask in the first place.
[/quote] Dang! That’s awful I’m sorry to hear that those rights to control where your song does and doesn’t go are not protected in the UK. Here, you are obligated to acquire both licenses and liable for all kinds of copyright infringement if you don’t.
Intellectual property (in the U.S) is an entire field of legal practice, drawn from an entire field of different laws. Its a broad term that refers to anything and everything copyright, patent, and trademark related. For example, a lawyer may specialize in intellectual property law just as they specialize in probate, criminal defense, or corporate litigation. There are specific courts in this country that soley exist to settle ip disputes, and attorneys have to be recognized by them in order to represent clients before them.
So regardless of weather you are wanting to secure or dispute the rights to a ‘sound recording’ or the ‘musical composition’, you would retain an intellectual property lawyer, since they are both areas in which an intellectual property lawyer is qualified and able to represent you.
If I were to acquiesce to your definition of intellectual property though, it appears much of this would not hold true.
Holy hell! That sounds like bollocks in my opinion too! And how on earth does that matter??? Are they not doing business in the UK? Then how are they not subject to UK laws regardless being German?
It applies globally. You know that. You can shout and scream as much as you like but if I want to record your song I’m going to do it. You can’t stop me.
Glad to hear it man Its been a learning experience for me to find out how different this works in other places!
[quote=“Stan_Halen, post:95, topic:1135”]
Just curious how that was applied back when the RIAA was trying to prosecute people that were uploading copyrighted songs to file-sharing software back in the Napster/Limewire days. [/quote]
I’d have to look back over the procedural history, but if I recall correctly, they tried to waive responsibility by arguing that Napster was merely an app for file transfer, and that the real infringers were the people who uploaded and downloaded pirated material.
It seems the specific forms of copyright infringement they cited in the complaint did lean more toward master recording.
I can’t stop you from recording the song? Sure. Fire up your DAW and track it. No big deal. That’s not what I’m saying.
Could I stop you from attempting to license it illegally to a movie company? No. Not really. But they know the law and they’re not dumb enough to pay for a license without checking to see if the person trying to sell it really owns it!
Now if you got it by them, and they were negligent enough to use the song with clearing it, could I sue the shit out of the film studio for copyright infringement? Sure can. Do you think that synchronization licenses are merely a suggestion?
You can not grant or deny the sync license without holding the publishing rights. If you intentionally and knowingly lie to the movie company and tell them you hold the publishing rights to that song that you do not, that’s fraud. Or attempt to defraud. All depending on how far you took it. Intentional misrepresentation of an existing fact.
Sync licenses would not be a federal requirement for film companies to use a snippet of an audio recording if there was no enforcement or consequences that compel the film studios to comply.
I’m sorry to hear that those rights to control where your song does and doesn’t go are not protected in the UK. Here, you are obligated to acquire both licenses and liable for all kinds of copyright infringement if you don’t.
Its been a learning experience for me to find out how different this works in other places!