Re: Question for legal experts regarding intellectual property (long)

PATTY CULLITON ([email protected])
Wed, 22 Jul 1998 05:03:03, -0500

J asked:
>What if a band were to write songs and they would copy >down to the
last note the melodies to the unreleased >tracks from the Salome
Outtakes, the Melbourne >Soundcheck, and the SF `87 soundcheck...Can
U2 or >Island or Polygram sue them? I am sure that woudl be
>unethical but technically, it must be legal, right? I mean U2
>doesn't own the music so it must be their loss if someone >copies it
and claims it to be their own.

I am not a lawyer, but I have my masters degree in music business,
and currently work in artist management, and I can shed some light on
this for you.

*As per the United States Copyright Act of 1976:
*Copyright is secured automatically when the work is created, *and a
work is "created" when it is fixed in a copy (sheet *music or lyrics
sheet) or phonorecord for the first time. In *general, "copies" are
materical objects from which a work *can be read or visually
perceived either directly or with the *aid of a machine or device,
such as books manuscripts, *sheet music, film, videotape, or
microfilm. "Phonorecords" *are material objects embodying fixations
of sounds such as *audio tapes and phonograph disks. This for
example, a *song (the "work") can be fixed in sheet music ("copies")
or *in phonograph disks ("phonorecords") or both. If a work is
*prepared over a period of time, the part of the work that is *fixed
on a particular date constitutes the created work as of *that date.

So, as you can see, the mere fact that someone is able to get ahold
of the song means that it exists in a fixed format. (The fixation
didn't have to be done by the author. So if you record U2 doing a
new song, you are creating their copyright for them!) And the fact
that U2 has recorded every one of its soundchecks and jams since
about 1982 protects them as well.

Since they are from Ireland you may be wondering about the
international aspects of copyright law...

There is no such thing as an "international copyright" that will
automatically protect an author's writing throughout the entire world.
  Protection against unauthorized use in a particular country depends,
 basically, on the national laws of that country. However, most
countries do offer protection to foreign works under certain
conditions, and these conditions have been greatly simplified by
international copyright treaties and conventions (i.e. the Universal
Copyright Convention of 1955, the Rome Convention of 1961 and the
Geneva Convention of 1971).

The original structure of international protection came in the form
of the UCC (Universal Copyright Convention) which came into force on
September 16, 1955. Generally, a work by a national or resident of a
country that is a member of the UCC, or a work first published in a
UCC country, may claim protection under the UCC. Over fifty
countries have ratified the UCC and other conventions. Included
among these are: Argentina, Australia, Austria, Belgium, Brazil,
Canada, Chile, China, Costa Rica, Cuba, Czechoslovakia, Denmark, El
Salvador, Finland, France, Germany, Greece, Hungary, India, Ireland,
Israel, Italy, Luxembourg, Mexico, Monaco, Netherlands, New Zealand,
Norway, Philippines, Poland, Portugal, Romania, South Africa, Spain,
Sweden, Switzerland, Thailand, United Kingdom, United States, and
others. (Mind you, getting *some* of them to "mind" these
restrictions, or actively punish those who disregard the protective
laws is another matter altogether. Italy has recently shaped up a
little bit, but China remains the world's worst offender.)

You may also be asking why creators bother to file their Copyright
Registrations then, if the copyright already exists as soon as the
work is in fixed form. This is because although the creator does
technically *own* the copyright immediately upon creation, this still
doesn't give them a lot of protection that would hold up in court.
There are three, you might say, "steps" or "plateaus" in legal

1.) Simply creating it in fixed form gives the creator the legal
ownership of the copyright. With this right you can take someone to
court for an order of cease and desist of their improper use of your

2.) Marking the work with (C) 1998 (or whatever year) gives you more
legal "foundation" to use against an offender should you ever have to
take someone to court. You have proof that the offender *knew* that
it was copyrighted material because it has been so marked. This
allows you to sue for any money made by the offender off of your
copyrighted work.

3.) Actually registering the copyright with the Copyright Office at
the Library of Congress in Washington, DC gives you the ultimate in
legal protection. Once you have registered your copyright with the C.
O. you now have the protection of both #1 and #2 of course - but you
also now have the legal foundation to sue not only for any money made
off of your work, but you can also now sue for damages as well.

FINALLY, you may wonder how all of this effects the making of "cover
versions" of songs. The way that works is that anytime a song has
been created *and had a first-time release/publication* that was
authorized by the creator of the work, it is now open for anyone to
also record their own version of. (This is why the Pet Shop Boys
could do a cover version of "Where the Street Have No Name" whether
U2 liked it or not.) However, if the work has never had a creator-
authorized first time release/publication then it *may NOT* be used
without the creator's authorization. (This is why you can't record
"Heaven & Hell" and release it, even if you credited U2 as the
songwriters, unless you had written permission from their publishing
company or a band member.)

As for payment for the usage of the song...there is a law that
governs Compulsory Licensing. The creator/creator's publisher
(provided that there has been an authorized first-time release) is
required to grant *anyone* who requests it permission to re-record
the song. The compulsory licensing fee is currently somewhere around
6.6 cents per copy sold of the song. That is the *highest* fee that
the publisher is allowed to charge/collect and is usually only
charged when a publisher doesn't want someone to record a particular
song. The publisher is free to negotiate a lower rate with the
requesting party, should they see fit to do so. However, under the
Compulsory Licensing Act the publisher cannot refuse to allow someone
license once the song has already been released to the public the
first time.

Okay, hope this was all helpful. If you have any questions - please
feel free to e-mail me.

In The Name Of Love,


No Border Artist Management

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