| The same copyright, trademark, and tort issues that apply to use of a motion picture apply to music as well. Determining copyright ownership can be particularly complex as there may be several simultaneous copyright holders in a piece of music. For example, the composer may own the copyright to the composition, the lyricist may own the copyright to the lyrics, and the record company may own the copyright to a recording.66
Right of publicity issues can also arise. The recent Bette Midler case67 prohibited the use of a sound-alike voice of a celebrity as an invasion of Midler's Right of Publicity. An ad agency had asked Midler to sing the song "Do You Want To Dance," for a car advertisement. After she declined to participate, the ad agency hired one of Midler's former backup singers to record the song imitating Midler's voice and style. When the advertisements were run many listeners thought the song was being sung by Midler. The ad agency obtained permission to use the song from its copyright owner but did not have Midler's consent to imitate her voice.
The court held that this imitation of Midler's voice infringed upon her rights. The court reasoned that when a distinctive voice of a professional singer was widely known and was deliberately imitated in order to sell a product, a tort had been committed in California. The court limited the holding to the facts, and cautioned that not every imitation of a voice to advertise merchandise was necessarily actionable.
The multimedia producer will need to obtain a mechanical license to reproduce a musical composition on a CD-ROM disk when the music is going to be used without an accompanying image. If the music is used with a video image, then a synchronization (sync) license is needed. If the program will be distributed on videograms (disks or tape) or CD-ROMs the producer will need a license for those uses as well.
When music is modified, an adaptation license may be needed. A dramatic adaptation license, for example, would permit the multimedia producer to dramatize a song's lyrics. Thus, the lyrics could be used as the basis for a screenplay or motion picture.
If printed copies of sheet music or lyrics accompany the CD-ROM, a print license will be needed. If the title of a song is used, a license may be needed to avoid a claim of unfair competition.68 If a portion of a musical play or opera is included on a CD-ROM, a license of "Grand Rights" should be obtained in order to use the creative elements in the work, including dialogue, scenery, choreograph, and costumes.
Public performance rights are generally not needed. That is because most CD-ROM programs, unlike music performed in nightclubs, or broadcast by television or radio, will be used privately. Query whether sending a song over the internet is a public performance.
There is no such thing as a standard fee to license music for multimedia productions. The more desirable the song, the greater the fee. The more rights requested, the greater the fee. Background or incidental use of song should cost less than a featured performance of the song. Music publishers generally charge a fixed royalty per unit sold, a percentage of the wholesale price per unit or some combination. There may be one-time fixing fees and/or advances. Flat fees or buy-outs may be used for works that are unlikely to sell many units, and whenever the producer wants to avoid a continuing obligation to account to the owner of the rights.
Before committing oneself to use a particular piece of music, the multimedia producer is well advised to determine what rights are needed, who owns those rights, and whether the rights are available at a reasonable cost. Music that is not available or too expensive may need to be eliminated from the proposed production. The owner of music rights is not required to issue a license for a musical work to be reproduced or adapted in a CD-ROM. The compulsory license provisions of the Copyright Act do not apply to the production of multimedia programs.69
A producer who incorporates work without first securing permission may incur the expense of re-editing his work to delete the music. If the CD-ROM has been marketed, the owner of the music can obtain substantial damages, reimbursement of attorney fees and an injunction pulling the offending product off store shelves.
The issue of digital sampling has become a hot issue in the music industry. An increasing number of artists have borrowed portions of pre-existing musical works to incorporate in their own works. The musical group Vanilla Ice, for instance, sampled the melody from the Queen-David Bowie work "Under Pressure." After the song became a hit, litigation was initiated. The suit was settled for an undisclosed amount.70
Sampling is accomplished with a computer synthesizer which creates a digital recording that can then be manipulated. Tone, pitch, and rhythm can be changed, and the work can be combined it with other recordings. The resulting work may not sound at all like the original work from which it was sampled.
The samplers reason that borrowing a single note or short excerpt from another work is not an infringement because: 1) What has been taken is not an expression of an author (i.e., no more than an idea was taken); or 2) the taking is protected under the fair use doctrine; or 3) the use is protected under the First Amendment.
In the recent case of Acuff-Rose Music, Inc. v. Campbell71 some of these issues were raised. Here, the group 2 Live Crew parodied the Roy Orbison song "Pretty Woman." The Court of Appeals, sixth Circuit found that 2 Live Crew's use of the prior work was copyright infringement and not a fair use as a matter of law.72 The United States Supreme Court disagreed, and reversed the lower court, stating that the use of the prior work could be a fair use, and whether it was, needed to be determined on a case-by-case basis.73
While it is doubtful that taking a few notes from another work could be deemed an infringement,74 there is no firm guideline that establishes how much can safely be taken. Only a few cases have grappled with the issue of how much a digital sampler can remove under the fair use doctrine.75 If the borrowed excerpt is recognizable to others, it is arguably an infringement. Thus, artists who borrow small amounts of other people's music may be liable for copyright infringement. There is no truth to the widespread belief that six or eight bars of music can be borrowed with impunity.
The identities of copyright owners can be obtained through the performing arts guilds (SAG/AFTRA), the Songwriter's Guild of America (a trade association) or American Federation of Musicians (AFM) (AFTRA covers singers and AFM covers instrumentalists). Publishers can be contacted directly or through the Harry Fox Agency which acts as a licensing agent for many publishers.76
Rights may need to be secured from a variety of parties including the composer, lyricist, publisher, agents, record companies, unions and in some cases the heirs or assigns of the aforementioned. Songwriters often sell or assign their copyright to a publisher who then controls the rights. The publisher will then share royalties derived from the song with the songwriter. In some cases the publisher may need to obtain the songwriter's approval before licensing the work. Record companies usually retain rights to their recordings, but they may need to obtain artist approvals for some uses.
Because of the complexity of licensing music, producers may want to retain a rights and permissions agency (i.e., clip clearance company) to negotiate and secure the necessary rights.
Public Domain music can be used without payment.77 Those compositions that were published more than seventy-five years ago are clearly in the public domain, and some compositions published less than seventy-five years ago may have fallen into the public domain. Some musical works, while in the public domain in the United States, may be protected elsewhere. Keep in mind that while a composition may be in the public domain, a recording of that composition may not be. In such a case, the multimedia producer will have to either locate a recording in the public domain, which may be quite old with poor sound quality, or hire musicians and create a new recording of the composition.
The expense and burden of licensing can be avoided by commissioning original music for the CD-ROM. Here, the producer must be careful to make sure all rights are obtained. If the composer is an employee for hire, the copyright to the work product will be owned by the employer (producer). A written employment contract is needed. If the employee incorporates any existing material in his work, rights to that material must be secured.
Inexpensive music and sound effects can also be licensed from music libraries on a one-time fixed fee basis.
Footnotes and citations:
66 Only original sound recordings fixed and published as of February 15, 1972, are copyrightable. Earlier recordings, however, may be protected under state law.
67 Bette Midler v. Ford Motor Co., 849 F.2d 460 (9th Cir. 1988).
68 See Tomlin v. Walt Disney Prods., 96 Cal. Rptr. 118 (1971).
69 The compulsory license applies only to phonorecords, not to works that have accompanying audio-visual elements. Moreover, the compulsory license does not cover the right to use music in synchronization with images.
70 Heather D. Rafter, Digitized Music Adds Notes to Copyright, San Francisco Daily J., Intellectual Property Supplement, March 30, 1994, at 15.
71 Acuff-Rose v. Campbell, 972 F.2d 1429 (6th Cir. 1992).
72 Id.
73 Campbell v. Acuff-Rose Music, 114 S. Ct. 1164 (1994).
74 See, e.g., United States v. Taxe, 380 F. Supp. 1010, 1014-15 (C.D. Cal. 1974).
75 See, e.g., Grand Upright Music Ltd. v Warner Brother's Records, Inc., 780 F. Supp. 1982 (S.D.N.Y. 1991); Jarvis v. A & M Records, 827 F. Supp. 282 (D.N.J. 1993).
76 The Harry Fox Agency, 205 E. 42nd St., New York, N.Y. 10017.(212) 370-5330. 77 BZ Rights Stuff, Inc. sells an encyclopedia of public domain music for $249. BZ Rights Stuff, Inc., 125 West 72nd St., N.Y., N.Y. 10023. Phone: (212) 580-0615; Fax: (212) 769-9224.
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