Tag Archives: music industry

The Copyright Laws…They Are A-Changin’

It is happening right now, at this moment. There is no denying it. The U.S. Copyright Law is going to be changed, and the process of review and comments has begun. Are you aware? Are you up to date? Would it impact you? Do you care?

If we are in any way affected by copyright law, I believe we have a responsibility, at this moment, to engage in the process. U.S. lawmakers, the U.S. Copyright Office, and industry leaders, are interested in what we, the stake holders, think. They are asking, they are inviting, and they are concerned. Are we ready to respond, or are we content with letting the changes occur without getting involved? If we don’t have the will to change it, we don’t have the right to criticize it.

This past week, The Copyright Office, on request of the House Judiciary Committee, was scheduled to take part in a roundtable discussion with music leaders in New York. Rep. Bob Goodlatte, the chairman of the House Judiciary Committee, has held six hearings on the Copyright Law since this past March. According to Maria Pallante, the Register of Copyrights, this is the most activity in copyright hearings “in a very, very long time.” Maria Pallante has presented her own call to copyright change in a lecture delivered on March 4, 2013 at Columbia University, called “The Next Great Copyright Act”, which she also presented to the House Judiciary subcommittee on Intellectual Property a few weeks later. Have you read it? Do you know what some of those changes she is exploring are? (You can read her full lecture at http://www.copyright.gov/docs/next_great_copyright_act.pdf ).

The purpose of this blog for the coming months will be to dive into many, and hopefully most, of the intricate issues the music industry will be dealing with in copyright reform. Oh wait…I’m not going to use the word “reform”. Ms. Pallante has said numerous times that neither she, and to her knowledge, no one in Congress, is calling this “reform”. It’s an update. We’ll see. I believe big changes are necessary, and perhaps some things need to be completely eliminated, while other sections need to be started from scratch. The first Register of Copyrights, Thorvald Solberg, said in 1926, “there comes a time when the “subject ought to be dealt with as a whole, and not by further merely partial or temporizing amendments.” I think we’re now at one of those times.

I was able to spend most of a day last month (December) with Maria Pallante during a visit to Nashville, and I will tell you I found her to be a very smart, capable, dedicated, and forward thinking leader. I believe she is going to prove herself to be an effective “change agent” related to copyright law. She says she believes the updated law needs to be “forward thinking but flexible. It should not attempt to answer the entire universe of possible questions, but, no matter what, it must serve the public interest. Thus, it must confirm and rationalize certain fundamental aspects of the law, including the ability of authors and their licensees to control and exploit their creative works, whether content is distributed on the street or streamed from the cloud.”

The goal of this weekly blog is to provide succinct information, definition and updates on copyright law issues, to discuss specific pain points in the law, and kick around ideas of change. It is to motivate forward thinking stake holders to get engaged, to gather intelligent, new and creative ideas from those people, and to provide a focused forum, or “crowd source” medium, to discuss improvement of the law. It is also to establish the Nashville community as a very real and respected voice in the process.

We’ll cover ideas such as performance royalties for sound recordings in terrestrial radio; whether or not we need a compulsory license; whether the life of post 1978 copyrights should be decreased without additional registrations (an idea already floated by Ms. Pallante); and new license models for the digital space. I have a list of over 40 timely and relevant topics that are ready to be teed up to discuss.

While genuine copyright change is clearly a daunting endeavor, the bell to begin has been rung, and it’s time for critical thinkers to step into the game. Spread the word. We need you. And we need you now. Let’s don’t just leave this to a few individuals in Washington.

“None of us is as smart as all of us.”Chinese proverb

John Barker

ClearBox Rights, LLC

(In order to better keep up to date and engage in this process, you may sign up to automatically receive this blog when it is published weekly, by clicking here https://clearboxrights.wordpress.com/ and entering your email address in the top right and press “Follow”).

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How Long Does A Copyright Last?

The life of a U.S. copyright has changed considerably throughout the last 100 years, and many people are still confused about the rules, which were last changed in 1998. This article is my attempt to briefly cover the history and simplify the explanation and terms along with a snapshot of the timing through an illustration. This article won’t cover every exception, (including works made for hire), but it will provide the standard lengths of copyright for normal songs which are not created as “works for hire”. (I will cover the definition of “works for hire” in an upcoming article).

Prior to the U.S. Copyright Act of 1909, the term of a copyright was 28 years. That was it. The 1909 Act extended the term by adding another 28 years, called a “Renewal”, as long as the appropriate owner filed a valid renewal application in a timely manner. If the renewal wasn’t filed properly in the 28th year, the copyright went into the public domain. (One famous case of the renewal not being filed was for the classic movie “It’s A Wonderful Life”, which officially went into the public domain in 1974, and is why the movie was shown countless times on various stations until certain owners asserted other rights of protection, but that’s another story).

The Copyright Act of 1976 (effective January 1, 1978) changed the terms again by adding an additional 19 years to those copyrights already in their first or second term as of that date (which we’ll call “pre 78” copyrights), and gave them a life of 75 years total. No additional registration was necessary in order to qualify for this 19 year extension. At that same time, the law stated that any copyrights effective after 1978 (what we will call “post 78” copyrights) would go by a different set of rules. Those rules said the life of the copyright will be 50 years after the death of the last surviving author. And further, no additional registrations or renewals would be necessary for these “post 78” copyrights to extend for their full life.

But the terms changed again. In 1998, Congress passed the Copyright Term Extension Act (CTEA), or what many call the Sonny Bono Copyright Term Extension Act. (Others refer to it as the Mickey Mouse Protection Act, as Disney was a big lobbying effort behind this act in order to save the copyright for Mickey Mouse, which would have expired in 2003.) This act automatically extended the term for “pre 78” copyrights from 75 years to 95 years, and it extended “post 78” copyrights another 20 years to “life of the last surviving author plus 70 years”. (Illustration below)

Picture 2And those are the rules today. Songs registered or first published after 1978 continue under copyright protection for the life of the last surviving author plus 70 years. Non work-for-hire copyrights published or registered earlier than 1978 are protected for a total of 95 years from the date of their first publication or copyright registration, whichever occurs earlier.

So when you are looking at using an old song, check the copyright date and add 95 years before you assume it is public domain. And if you are a writer, this gives an entirely new motivation to helping young writers by co-writing with them. Their youth can work to your (or your heir’s) advantage.

John Barker
ClearBox Rights, LLC

© 2013 John Barker. All rights reserved. Information contained in this Blog is of a general nature and should not be considered or relied on as legal advice. Any reader of this Blog who has legal matters related to information addressed in this Blog should consult with an experienced attorney. This Blog contains no warranties or representations that the information contained in it is true or accurate in all respects or that it is the most current or complete information on the subject matter covered. John Barker is President and CEO of ClearBox Rights, LLC.

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Intangible is not Insignificant

This is one of my pet peeves.

Someone will contact us about using a song we represent, and they will want to use it for free. The reason? They are making copies to give away as a promotion. We’re told the artist has agreed, and if we all give a gratis license for this marketing use, it should promote more products to be sold in the future, in which we can all enjoy our share.

The music industry has generally accepted this practice as reasonable. Perhaps the promotion is giving away 5,000 units in order to “prime” the marketplace. Maybe it is to package the music at no additional cost with some other product that is popular in order to be introduced to a new market. Perhaps it is to be used as a loss leader to entice the buyer into a purchase, a “buy one, get one free” campaign. Or even as a fund raiser for a good cause.

All good marketing, right? But here’s my rub.

Marketing is an expense. It is standard practice to pay for an advertisement, or a sponsorship, or any other type of brand awareness, including promotional trinkets and merchandise. There’s a budget for that. In the physical recording product world, that budget pays for things like mastering, duplication, the cost of plastic CDs, the paper packaging and inserts, printing, and shipping costs. All the tangible parts have a price tag. And no one asks for those parts to be given for free.

But what is the real value in the product being given away? Are people enticed because they want something tangible like a shiny plastic disc, or cool packaging? Or is their interest in the intangible part; a new song or a new recording?

When asked to license something for free…whatever the reason…my first question is normally whether or not the CD manufacturer, the print company, or the other participants have agreed to give their parts for free as well. If the argument that giving some away now will encourage greater sales in the future, wouldn’t that apply to all parts, including the plastic and paper?

I know where the real value is. It is in the unique creation we call a “song”, and the performance we call a “recording”; the intangible parts. We should treat those with greater respect and consideration. All of the other elements exist primarily for presentation and delivery.

Don’t be so quick to give the real value for free.

John Barker

“If you undervalue yourself, no-one’s going to come along and raise your price.” – David Williams

© 2012 John Barker. All rights reserved. Information contained in this Blog is of a general nature and should not be considered or relied on as legal advice. Any reader of this Blog who has legal matters related to information addressed in this Blog should consult with an experienced attorney. This Blog contains no warranties or representations that the information contained in it is true or accurate in all respects or that it is the most current or complete information on the subject matter covered. John Barker is President and CEO of ClearBox Rights, LLC.


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Songwriters are no longer dying to get their copyrights back.

Writers can now get their songs back in the living years, through the added terms of Section 203 of the 1978 Copyright Act. (That is, starting after January 1st of 2013). The Copyright Act permits writers, or their heirs, to terminate grants of copyright assignments and licenses made after January 1, 1978, within a 5 year window, effective 35 years after the date of the original grant.

While congress’ original intent in coming up with “renewals” for copyrights in the 1909 Copyright Act was for the writers to have an opportunity, later in life, to enjoy the benefits of their earlier successful works, publishers made it a practice to have writers assign those future renewals to the publisher. The only “out” was if the writer didn’t survive to the renewal date, whereupon the future assignment of renewal to the publisher wasn’t valid. In order for pre-1978 songs to revert back to the writers, they pretty much had to die. That caused some obvious problems with retirement planning. Renewals became more like a life insurance policy rather than a living retirement subsidy.

Now that’s all changed. Big songs first assigned in the year 1978 are eligible to be “recaptured” by the living writers effective in 2013. There are still some specific hoops to jump through, such as when and how to send the termination notices (not greater than 10 years and not less than 2 years before the 5 year window). But, for the most part, these rights cannot be assigned away ahead of time. So now, for the first time in over 100 years, the intent of the U.S. Congress for the majority of living writers to enjoy the benefits of their works later in life is becoming a reality.

John Barker

“What a wonderful life I’ve had! I only wish I’d realized it sooner.” – Colette

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Digital Apples

Digital Apples

Recently, an article appeared in Digital Music News (http://www.digitalmusicnews.com) about Ellen Shipley, a Grammy award winning writer, and that her popular co-written song “Heaven Is a Place On Earth”, was streamed 3.1 million times on Pandora, and she received a check for only $39.61.

Sounds outrageous, right? But let’s dig in a little to the details.

Pandora is a non-interactive streaming provider. That means that the user is basically listening to Pandora as one would listen to a traditional, or “terrestrial” radio station. You select a station and sit back to hear what plays. While you are able to skip a limited number of songs, you cannot “control” what you hear.

Further, each “stream” can be compared to one person listening one time to a song on their personal radio, which is one “listen”. If a terrestrial radio station in a major market of over 10 million people broadcasts the song one time, it could receive hundreds of thousands of individual “listens”. So, accumulating 3.1 million “listens” could happen with very few single broadcasts.

With all that said, would $39.61 in airplay royalties to a co-writer of a song that was broadcast a handful of times on one terrestrial major market station in the U.S. really be outrageous?

Now, to be clear, I am on the side of having writers and publishers fairly compensated for their works. And I believe many areas need to be increased, including Pandora. (Pandora’s 2011 Annual Report showed that while they paid almost 50% of revenue to artist and labels through SoundExchange, only 4.1% of revenue was paid to songwriters and publishers through the Performing Rights Organizations. I believe that is unfairly unbalanced).

But let’s compare “digital apples” to “digital apples” in making our arguments. Comparing the number of digital streams to terrestrial broadcasts is misaligned. Rather, we need to be focusing on the proper balance of the value of the song compared to the recording.

John Barker

“Every story has three sides to it – yours, mine, and the facts.” – Foster Meharney Russell

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