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  • Ellakisha S. OKelley, Esq.

Copyright and the Right to Copy


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Whether you are an artist who needs to protect your work or one who wants to use work that is protected, understanding copyright law can save you a whole lot of heartache and pain.

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With servicing clients in the music industry, one of the most pertinent conversations I have with my artists involves copyright law. I have learned, after tons of conversations, that there are so many misconceptions when it comes to this topic. There is a plethora of information surrounding this subject (joint work, work for hire, co-publishing, administration deals etc…) but I will just touch on a couple of reoccurring themes I consistently address when my legal services are rendered.

To begin with, an artist who is a songwriter and/or composer should always have at the top of their list to copyright their work. Contrary to widespread belief, one does not need to register with the U.S. Copyright Office to establish a copyright for their work. Once an artist makes a tangible copy of their work, they have a copyright.[1] So, this means that an artist should consider transferring their creative thoughts to paper or a voice recording to create those rights. However, there are additional protections that an artist only gets from registering with Washington.

When you own a copyright (tangible work) you create exclusive rights that prohibit anyone from doing the following with your work without permission: 1) reproducing the work, 2) distributing copies of the work, 3) performing the work publicly, 4) making derivative work, and 5) display the work publicly.[2]

The additional benefits an artist gets by registering a copyright with the Copyright Office, includes; 1) being allowed to file an infringement action, 2) access to legal remedies(attorney fees or statutory damages) that are not otherwise available , 3) collect compulsory license royalties, and 4) hold a legal presumption that everything in the registration is valid, which then shifts the burden to the Infringer to prove otherwise. With that said, if an artist knows their work is going to be commercially exploited it may be a good idea to consider registering their copyright to gain these additional benefits.

Another important discussion is about sampling. I have had extensive conversation with y clients about this topic. Sampling is the art of taking sound, whether it's from the master recording, instrument, synthesizer, or voice to make a copy to incorporate into another artist’s masterpiece. There are many new artists who sample other artists work without proper clearance. It has become a norm, and there is such confusion surrounding this issue due to so many videos on YouTube and other social media platforms showcasing individuals (with commercial gain) using a sound recording of known work. Don’t get me wrong, veterans are still doing it as well. I’m sure you can find a few names in recent news with a simple online search.

There are so many subtopics that can be covered with this issue, but the point I want to make is- just because it’s being done doesn’t make it right.

Without going into fair use exceptions or take down rights that record labels have, let’s just say it is good, if not necessary, practice to get clearance on sampling. Any artist that envisions themselves making money commercially, which should be all artists dedicating and sacrificing their livelihood to their craft, should never put their hard work at risk.

I walk my clients through the proper steps of clearance that may include contacting more than one individual who has the right to deny or clear the usage of the sample. If an artist is creating derivative work (mixing new with old) - which is more than likely the case if a sample clearance is being requested- there are two bodies of work that are usually at play; the composition and the sound recording. Surprisingly, there can be more than one individually copyrighted work that needs to be cleared for a single song.

For example, one person can own the composition and another entity may own the sound recording. Some artists incorrectly believe they only need to purchase a mechanical license to use a sample of a song. I come across this a lot with new artists. A mechanical license (set at a statutory rate) is only applicable if an artist wants to record a song that doesn’t belong to them. But, when combining that original song with the sound or new work, a mechanical license is not sufficient!

The owner(s) of the copyright may request several things from the artist seeking the right to sample their work before even considering a clearance. These request can become cumbersome. Additionally, even if the owner(s) clears the sampling, the price tag must be negotiated before release. When a copyright work falls under a compulsory license, the requester has a choice to negotiate a price with the owner or pay the set fee applicable to the license. Since derivative work (sampling) is not covered under a mechanical license or any of the other compulsory license exceptions, there is no statutory rate that applies. [3] Hence, it is a voluntary license and negotiations can get very complex.

Again, derivative work is not covered under compulsory licensing. I just had to repeat that!

Sampling another owners work without proper clearance is serious business! Just read the landmark case that found against Biz Markie (one of my favorite artist), a famous a rapper of the 90’s.[4] The judge presiding over that case not only began his opinion with the famous, “Thou shalt not steal,” Honorable Duffy also referred the matter to the U.S. Attorney’s Office for possible criminal prosecution. Yes, if the infringement is willful, the Infringer can be convicted of criminal copyright infringement. Check out the Marx Brothers case if you don’t want to be made an example out of what not to do.[5]

Whether you are an artist who needs to protect your work or one who wants to use work that is protected, understanding copyright law can save you a whole lot of heartache and pain. Make sure you have someone on your team that can guide you in this area. An artist needs all of their energy to put into their craft. The last thing that should be added to the list of worry is theft of work, regardless of what side of the line the artist may find him/herself on.

[1] Copyright Law of The United States, https://www.copyright.gov/title17/92chap1.html#102

[2] Copyright Law of The United States, https://www.copyright.gov/title17/92chap1.html#106

[3] https://www.copyright.gov/circs/circ73.pdf

[4] https://law.justia.com/cases/federal/district-courts/FSupp/780/182/1445286/

[5] https://law.justia.com/cases/federal/appellate-courts/F2/96/204/1475391/


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