The Composer’s Guide to Doing Business: Copyright Part 5

My apologies for my absence last week – an unexpected health issue kept me from making use of my regularly-scheduled Composer’s Guide writing time last week (I set aside every Wednesday evening from 6:00 until 1:30am to write this, though I try not to take that long!), and the rest of my time was already spoken for until today. Such is my life!

So this week I want to finish off (at least for now) our copyright discussion with one of the most controversial topics surrounding intellectual property law: the cutely-named “copyleft” movement, and its impact on how copyright law is perceived.

First, though, a brief note and a few links on copyright infringement again. One of my earlier posts on the importance of registering your works, and it was noted in the comments that wholesale theft of concert music almost never happens. However rarely it happens, though, it still does.

Take as an example the Messe de requiem by Alfred Desenclos. The Messe was composed in 1963, and published by Durand et Fils in 1967. Then in 1999, almost 30 years after the death of Desenclos, it was presented as an original work by the young composer Tristan Foison. The story is sordid and sickening. And a wonderful cautionary tale. You can read about it here and here. So who doesn’t want to register their works now?

OK. Copyleft.

The copyleft movement started in the software world: software engineers wanted certain of their programs to be freely available while still limiting certain uses of them: particularly commercial use. In other words, they wanted people to be able to use and build upon their code, but didn’t want corporations to swoop in, modify the code slightly (derivative works, anyone?), and release the minorly-edited version commercially, thereby making potentially millions of dollars on a product that they neither created nor funded the creation of. The fruits of this movement are quite robust and active still in the tech community in the form of Open Source. WordPress, OpenOffice, VideoLAN, Wikipedia, Apache, Android, Mozilla: these are all companies and products centered around the Open Source Initiative, which has its roots in copyleft. Each of them may be used and disseminated freely, and users may modify or add to them so long as they don’t offer the modified version for sale, and in most cases maintain the notice of original authorship.

Most of what we make use of on the internet is thanks to the Open Source Initiative, the GNU License, etc. This blog is powered by WordPress. Some of the cooler bits of coding on this site are my own adaptations of various codes available on sites like Dynamic Drive. If you care to, view the source of this page and see the authorship notices embedded in the site’s header material. You can bet your sweet bippy that I’m thankful for open source software.

However!

This is all tech crap I’m talking about. It’s not music.

So where does music enter into the equation?

With the advent of sampling and sound libraries, there came a wider call for freely-available sounds and sampling materials. Just as with the proliferation of powerful image editing software, there grew a need for non-copyrighted stock images. Of course, when I say a “call” or a “need”, I mean: people wanted to use things that other people made, but not pay for it.

Enough people had gotten in trouble for using copyrighted images or sounds without permission that some of them started making their own and offering them for others to use without having to pay licensing fees. Many of these are available thanks to the proliferation of the Creative Commons license.

I get a lot of questions about Creative Commons and how it compares to copyright. (There’s nothing to actually compare, but we’ll get to that.) In fact, it was an email conversation I had with a fellow composer about Creative Commons that sparked me to write my first essay on copyright, which I’ve plundered liberally for this series.

This composer argued in favor of abandoning copyright in favor of licensing under Creative Commons and similar entities. (I say “entity” because Creative Commons is a non-profit corporation. FYI.) And it was this argument that made me finally realize how little composers and other artists understand about what Creative Commons actually is, and how it stands in relation to copyright.

A lot of composers and artists I talk to seem to think that Creative Commons and similar types of licenses are an alternative to copyright. That somehow CC’s ShareAlike and NoDerivs licenses replace the need for copyright protections. CC is, in fact, a type of extension of copyright that allows creators to forfeit various and sundry of their rights so that other people can have more stuff for free.

You can see that I’m not the hugest fan.

Now, I’m not completely opposed to CC licenses, but I think that composers should be careful about using these licenses with their works.

The most successful uses of CC licenses that I’ve seen used with creative works have been with photos, sound samples, and webcomics. All of these are small individual works that help to give a creator exposure and experience while also allowing them to generate revenues in other areas.

For example, photographers can make a handful of their photos available with a CC Attribution-NonCommercial license as teasers for the rest of their work – individuals and companies that want to use other of their images can pay a licensing fee, or hire them for individually-tailored shoots. Audio engineers offering sound samples can create a tiered service: the basic set of samples are made available gratis, and the “premiere” set can be purchased for a fee.

Webcomics make ingenious use of CC licenses. The individual comics themselves, because they’re posted to sites that are accessible by anyone, and because no image online is safe for long, are all licensed under CC. It’s merchandising that earns the artists their income. Jeffrey Roland’s TopatoCo is a prime example of this, as is Randall Munroe’s xkcd comic and store. Roland’s comics Wigu and Overcompensating, you’ll notice, like Munroe’s xkcd (all three of which I adore – I have a whole folder of webcomic feeds that I subscribe to in Google Reader. If you want me to dork out some time, ask me about it.) are available via CC licenses. And fans who want to have the comics collected in book form, or want T-Rex of Qwantz fame on a t-shirt , or want a print of Cornelius Snarlington, Business Deer, can shell out cash for the comic artist’s merch.

Concert music, in my opinion, differs greatly from these media. Enough so that I find CC licenses to be ill-advised for concert music composers. I’m always willing to listen to arguments to the contrary, but for the moment, I can’t see CC (say that ten times fast!) as being beneficial to our financial or artistic well-being.

Let me explain as best I can.

Our works are highly-individualized, labor-intensive, time-consuming things that have very specific types of secondary income: score sales and print/recording/broadcast/etc royalties. By appending a CC license to any of our works, we forfeit our claim to those sources of income. And unless we write many, many works with the same instrumentation, we aren’t likely to be able to use a limited number of CC-licensed works as gateway works to the rest of our catalog. Even then, a composer with a significant number of works for solo piano would be – in my opinion – ill-advised to offer one or two pieces under CC licenses hoping to attract interest in the rest of his catalog. A photographer offers a limited number of photos under CC because she knows that those few she offers for free won’t be appropriate for every project that others may need images for. An audio engineer can offer a limited number of quality samples because he knows that while some users will be content with the free product, more users will want the full complement of samples because of a) their quality, b) their range and scope, and c) again their quality.

The concert music composer who offers a CC-licensed piano piece is offering a stand-alone work that is presumably of considerably high quality. (Why offer a work that is not your best?) That work is likely to be played more often than those that require the performer to pay for the score and performance licenses. People will, of course, buy the others, but probably rather less often.

One argument I’ve heard in favor of CC licenses is that they allow others to make use of your music to create more art.

That’s nice and all, but they can still do that without you renouncing whole swaths of your rights.

Remember the last chapter from two weeks ago when I told my little story about the visual artist who used one of my scores in her work? (I completely failed to mention, by the way, that her name is Yu-Wen Wu, and he’s fabulous. You can see the body of work inspired by my score here.) Well, I gave her permission to use my score, and I didn’t ask her for a fee or anything. She’s a friend, and I was happy to have my piece repurposed for the sake of her art, so I just said, “Yes.”

You can do that, too!

I’ve also had my works remixed by pop artists, and arranged by fellow composers. All I asked of them was that I get credit as the original author. That may sound like a CC Attribution license, but the big difference is that I retain my rights to those works for all other uses.

It’s not that I’m stingy, it’s that I don’t feel the need to renounce significant portions of my rights altogether.

If you want people to remix your work, or make use of it in some new and unusual way, you don’t have to give up your rights.

A simple solution? Put something on your website saying that you welcome collaborations with other artists, and all they have to do is email you at youremailaddress@yourdomain.com. Done!

Problems with Perception
There are a few reasons, I think, why people tend to rebel against copyright, and lean toward the copyleft movement (which I recently heard referred to as “copywrong” – I don’t disagree with that assessment), and I think it has to do with public perception of how copyright can be…misused…? I hesitate to use the term, although I think that it is what I really mean to say.

Copyright duration tends to be a big issue for some people, and I can’t say that I completely disagree with them. I fully believe that a creator should have complete control over his/her works for the entirety of their lives, including the right to assign those rights to others (publishers, etc). I even think that the creator’s heirs should get some benefit from royalties, etc. So, I definitely advocate for a life-plus-___ duration.

I certainly don’t have an answer as to how long I think copyright should extend beyond the life of the creator. But it should for some reasonable period.

I’ve heard a lot of people lately saying that life plus 70 years is too long, and they’re not unreasonable in saying so.

And it’s the reason why life-plus-70 exists that has skewed much of the public’s perception of copyright. The Copyright Term Extension Act of 1998 was lobbied for extensively by the Walt Disney Company and the Gershwin Estate. Both had a lot on the line – the copyright terms for Mickey Mouse and Rhapsody in Blue were both nearing their end; and because the CTEA was passed, both of these continue to be significant sources of revenue for each organization, respectively. Thus, the perception of copyright as benefiting only corporations was born.

Because of this sore point, it’s easy to overlook how greatly copyright benefits individual creators. As I’ve said many times already, all opportunities we have for income generated from our works are because of copyright.

I feel really strongly about composers holding onto their rights. So I urge those of you considering using Creative Commons and similar licenses to think carefully before you do. It’s a bell that can’t be unrung – once you put a piece out there with a CC license on it, those copies can circulate and undermine any attempt you may make later on to generate income from the same work, should you reconsider your earlier decision to go the copyleft route.

Before I close the door on our copyright discussion, I would be remiss if I didn’t make note of termination rights. For those of you who have pieces that were published during or after the late 1970s, you have a unique opportunity coming up: you can reclaim rights that you’ve assigned to your publishers. This right comes available 35 years after first publication, and is available only for a window of 5 years. There are hoops that must be jumped through, and some really specific timing issues involved, but some of you may find it to your benefit (though don’t expect your publisher to be happy with you).

There’s a good blog post by an Intellectual Properties lawyer on the subject here, and the Copyright Office’s official language here.

That does it for now for copyright, so I’ll see you all back here next week for the next exciting episode chapter of The Composer’s Guide!

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The Composer’s Guide to Doing Business: Copyright Part 1

This week’s installment is part one in a multi-part series on copyright that I’ll be writing over the next few weeks. This week, I want to tackle the basic terminology and concepts behind copyright before moving on in subsequent weeks on ways that composers can and do leverage their copyrights to generate income; the benefits of registering your copyrights with the U.S. Copyright Office; practical concepts like public domain, fair use, the doctrine of first sale, and the “poor man’s copyright”; and the impact of the Copyleft movement. I’ve written briefly about copyright before on this blog, so I’ll be rehashing a bit of old territory, but I’ll be going into greater depth in this multi-part section.

Copyright is a bit of a difficult concept for most people to get their heads around, in large part because it centers on the idea of intellectual property – the ownership of creative ideas, or the expression of those ideas. Things get a little more confusing for composers in some areas. My father – a smart man – has asked on more than one occasion: “When someone commissions you, who owns the copyright?” The answer is, of course, me, but when a CPA with a successful, 30-year career is fuzzy on issues of copyright ownership, you know it’s not a simple subject.

So let’s start with a basic definition of copyright and work from there.

What is copyright?
Copyright is a term that refers to a group of rights granted to a creator – we’ll refer to him as an “author” from now on, understanding that for our purposes “author” is interchangeable with “composer” – with respect to his creative works. Those component rights are:

• The right to make copies of the work
• The right to distribute copies of the work
• The right to make adaptations of the work
• The right to publicly display or perform the work

The right to make copies of the work is pretty self-explanatory. The right to make copies – copyright – get it? Eh? Eh? Upon the creation of the work (specifically when the work is fixed in some tangible form, such as written or notated on paper, or recorded by means video or audio), the author is the only person allowed to make copies of her work. This simple beginning is the lynchpin on which copyright is secured. All other rights, as you may notice as we go along, flow from this first right.

The right to distribute the work means that the author may sell or give away any copies of the work that she has made, yet she still retains ownership of the work, and others are prohibited from distributing the work without the author’s permission. So, after writing your latest string quartet, you aren’t giving up your copyright when you sell a copy of the score, or give one away – you’re merely distributing the physical copy of the work. The right to make copies and the right to distribute the work, when combined, form the basis of the publishing industry.

The right to make adaptations – most commonly referred to as “derivative works” – means that the author may arrange or expand on the original work in other, separate works, barring others from doing the same without the author’s permission. It’s this right that allows J.K. Rowling to continue to write in the world of Harry Potter, and prohibits other writers from writing new Harry Potter stories without Ms. Rowling’s permission. Similarly, a composer may make an arrangement of his piano piece for orchestra or brass quintet or guitar, but another composer may not make arrangements of that same work without the original composer’s permission. This right ensures that the intellectual property that Ms. Rowling has gone to such time and effort to create isn’t usurped by another writer who can’t be bothered to come up with his own world to write in.

The right to publicly display or perform the work allows the author to hang his painting, produce his play, perform his music, or read his novel or poem in public – preferably for a fee – and prevents others from doing the same without the author’s permission. This right is where we get our performance royalties from – ASCAP, BMI, and SESAC have built an entire industry around this one right. Performances via audio or video are also covered under this right.

Now, reading all that, it may seem as though these rights are actually more restrictive than helpful, and maybe the Copyleft folks have it right – copyright only serves to restrict the freedom of speech and dissemination of information. Uh, no.

First, a word about the origins and purpose of copyright in the U.S. (my apologies to my non-U.S. readers – this is all U.S.-based discussion).

Copyright was seen as so important to our Founding Fathers that it was written into the body of the Constitution itself. Article I, Section 8 of the Constitution reads: “The Congress shall have Power … To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries”. From this section comes the legal basis for copyright, patent, and trademark. Powerful little clause there, huh?

The basic purpose of copyright is to promote science and the arts by allowing authors to control the uses of their works. Imagine: if these rights weren’t protected by law, anyone could appropriate our work, slap their name on it, and not only call it their own, but attempt to make money from it. In such a world, what incentive is there to share our writings and scientific findings? (Let me point out here that copyright doesn’t extend to facts, but only to the individual expression of ideas. Consequently, writing a novel set in London doesn’t put London under copyright, only the particular story and characters expressed in the novel.) Obviously, there is a drive in many to share their work for the love of their art or the advancement of science, but the ability to generate income from that work is an even greater incentive to disseminate it. What better way to promote science and the arts than by allowing people to make a living at them?

And Free Speech, while a lovely banner to wave, isn’t an excuse to deprive artists of their right to control how their work is used and distributed. I’ve got a big section planned on Copyleft and these arguments, so let’s move on for now and get back to copyright basics.

You’ll notice that I used the word “permission” a lot in my explanations of the component rights of copyright. Permission is the key to what I often refer to as “leveraging copyright”. These permissions are called licenses, and are the basis for the entire music business.

Licenses
By giving another person permission to arrange your string quartet for full orchestra, or sell copies of your score on your behalf, or publicly perform your music, you are granting them a limited license to exercise one of your rights as an author.

Licenses can be granted for any individual right or group of rights, for any length of time that you might specify in your agreement with the licensee. Licenses can be exclusive – i.e., only one licensee may exercise those rights for a period of time – or non-exclusive – multiple licensees may exercise the same right at the same time. Licenses are the basis for royalties, publishing agreements, recording contracts, you name it. Basically, anything that will earn you money from your music is due to a license on your copyright.

When you join a Performing Rights Organization (PRO), such as ASCAP, BMI, or SESAC, you authorize the organization to license performances for you – in other words, to act on your behalf in exercising your right to publicly perform your work. So when an ensemble wants to perform one of the works you have registered with your PRO, the organization authorizes those performances and collects the fees that it charges for the licenses. This type of license is a very limited license – it extends to specific performances, and no more. Any performances of that work that aren’t licensed by your PRO are unauthorized, and a violation of your copyright.

When you grant another composer permission to arrange one of your pieces, you are granting them a license to exercise your right to create a derivative work. Any derivative work here, by the way, has its own copyright, which is now split between you, as the original author, and the arranger, as the author of the arrangement.

When a piece of yours is recorded, you’ll have a mechanical licensing agreement (and you should be paid a licensing fee). When that recording is broadcast, the broadcast is licensed, and you receive a royalty. When a piece of yours is used in a film, TV show, or commercial, the filmmaker etc will have to secure a synchronization license, for which a fee and/or royalty is paid to you.
If a piece of yours is recorded multiple times, you’ll be paid a compulsory license royalty.

All these opportunities for income – however big or small – are because of licenses.

Assignments
While licenses are for individual rights or groups of rights, an assignment is a little different. When you assign your rights to another person or a company, you give them all of your rights to a particular work, typically for the life of the copyright (we’ll get to that).

In the concert music publishing world, a composer typically assigns his rights to his publisher. He forfeits his rights to the work, and the publisher becomes the effective “author”. In exchange for this assignment of rights, the publisher then pays the composer a percentage – typically 10% – of its gross sales for that score. (Now, I have a lot of thoughts about this, as y’all may know, so obviously stay tuned for the posts I’ll have on Publishing and Self-publishing later in the Guide.)

Duration of Copyright
Works don’t stay protected by copyright forever. There’s an expiration date for each work’s copyright. Because U.S. copyright law has changed several times in the past century, most notably to extend the duration of copyright, it can be a little confusing when it comes to knowing what is still protected by copyright and what is in the public domain. Unfortunately, there’s not always an easy answer to this. It’s almost always easier to determine whether a work is still protected under copyright than to determine if it’s not.

For works written as of January 1, 1978, the duration of copyright in the U.S. is the life of the author plus 70 years. So for your own works, you’re fine until you die, and then some.

But when quoting or sampling other works, be careful and be educated.

Quotation / Sampling / Text Setting
Before I sign off for the week, I’ll touch on one final thing. Not exactly a copyright basic, but it ties in nicely with licenses.

If you find that you absolutely need to quote or sample another work whose copyright is held by someone other than yourself, you’ll end up licensing that portion of the original work. Likewise, if you set a text that isn’t in the public domain, you’ll end up licensing it from the publisher or author. Don’t play it fast and loose – just ask for permission. And if you don’t get it, move on. We’ll talk more about securing permissions in coming weeks, though in the meantime, ASCAP has some good resources for this very topic.

On that note, I bid you a fond farewell. Next week we’ll continue with more copyright! Yay!

Disclaimer: I’m not a lawyer, and these posts shouldn’t be interpreted as legal advice. They’re my interpretations and opinions. If you have specific questions about copyright, I highly recommend Nolo’s excellent publications on the subject, or consulting an intellectual properties lawyer. If you think you may be the subject of copyright infringement, absolutely consult a lawyer.

I write the Composer’s Guide here once a week, taking time away from my composing to do so. If you find value in this blog, please do leave a tip or a small donation on the way out. Thanks!