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June/July 2013

by David McLaughlin

The Lawful Truth: Copyright Basics

by David McLaughlin

The Lawful Truth: Copyright Basics

Copyright is probably the most important single legal concept when it comes to the music industry. If you understand how copyright law works you will know how you can protect your work and also get the most commercial value from it. Copyright is the right given to the creators of certain kinds of works to control who copies and reproduces such works. This protection extends to‘’musical works’ being the music of a song, ‘literary works’ which includes song lyrics and ‘sound recordings’ being the physical recording of an actual song.
 
Copyright does not last forever. At the moment under NZ law, subject to a couple of exceptions, the duration of copyright is the life of the creator plus 50 years. In other jurisdictions, the duration of copyright ownership has been extended – for example, in Europe this has been increased to 70 years and a decade ago the United States adopted a 95-year copyright term.
 
Copyright automatically arises when music, song lyrics or a sound recording are created. You do not have to complete any form of registration or filing to get copyright. However, song lyrics and music must be recorded in some tangible form, such as writing, before copyright in them will actually arise. So, if you have a great tune running through your head, write it down, if you want to ensure you can claim copyright protection in respect of it.
 
Another important requirement for copyright to arise is that the work in question is original. The issue of what exactly is ‘original’ has been the subject of much debate in some very high profile international copyright infringement cases. Essentially, for something to be original, it can’t be copied in whole or in part, from anywhere else. As Baauer recently found out with the samples he used for Harlem Shake, if some link can be shown between an existing copyright work and something that you are trying to claim as an original new copyright work, and you did not gain permission from the owner of the existing work to use it in that way, then you may be in for problems.
 
In terms of copyright ownership in music, the basic rule is that the creator of a copyright-able work will own it. One exception to this is that the person who arranges for the making of a sound recording (generally regarded as the person who initially pays for that) will own the copyright in the sound recording. This is why record companies generally own the master recordings of their artists.
 
In NZ the owner of copyright in a work has the exclusive right to do, or to allow others to do (such as by granting licences), certain actions in respect of that work. This includes the right to copy the work, the right to sell copies of the work, the right to perform the work in public and the right to broadcast the work. This is really why copyright is such a powerful tool to help you both protect and make money out of your work. On the protection front, copyright infringement is also viewed very seriously and there are a range of remedies available to deter infringers.
 
Another important aspect of copyright law is what is known as ‘Moral Rights. In NZ the creators of music and song lyrics, but not sound recordings, have moral rights. Moral rights are comprised of three main aspects. Firstly, you have the right to be acknowledged as the creator of your work whenever copies of it are sold to the public, or included on any soundtrack. It’s important to note that you must actually request this of the person who may be making and selling CDs of your music, or has included your music in the soundtrack to their film, in order for them to be obliged to do so.
 
Secondly, someone can’t claim you are the writer of a song or song lyrics when you are not. Thirdly, you have the right not to have your song or song lyrics subjected to derogatory treatment. Although ‘derogatory treatment’ is difficult to define, a bad review of your music in a magazine won’t qualify. This third moral right is essentially aimed at preventing someone using or changing your work in such a way that your reputation is affected. The duration of moral rights is for the full period of the copyright in your music or song lyrics, however with a slightly shorter period of protection in respect of the right not to be falsely described as the creator of a work.
 
So there you have it, a summary of some of the key aspects of copyright law as they apply to those of us operating in the music industry. Copyright is however a very complex area and not wanting to bore you to death, there are some technical details I haven’t tried to explain here. Hopefully this article will give you a basic idea of what copyright is and how it relates to the activities you are involved in.
 
In the next issue of NZ Musician we’ll be looking at more practical examples of how copyright operates in practice, including copyright and song ownership issues when you write songs in a band or with someone else.
 
David McLaughlin is a specialist music lawyer with Auckland law firm McLaughlin Law (www.mclaughlinlaw.co.nz). He can be contacted by email at david@mclaughlinlaw.co.nz or on 09 282 4599.
 
Disclaimer: This article is intended to provide a general outline of the law on the subject matter. Further professional advice should be sought before any action is taken in relation to the matters described in the article.