Broken Bands and Old Songs

Recordstar · Post by **Recordstar** » Thu May 31, 2007 11:50 pm

Brad..Thanks for the vote of "knowledge". Silencio nailed it. All you really have to do is pick up a Form PA (For a Work of Performing Arts) from the US Copyright Office and read. It is very self explanaory. BUT PLEASE>>>>do not read in to it "sidewalk music terminology" by confusing Author (the creator of the the work) and the term "writer". Nowhere within the copyright form is the word "writer" used. It seems that we had (sic) a month long conversation regarding copyrights. Perhaps a "Copyright Workshop" is in order. I'm sure there are enough budding authors of musical works out there that could benefit from it. Silencio, are you, and other knowlegeable individuals out there, game to assist in conducting such a workshop???

Garr · Post by **Garr** » Fri Jun 01, 2007 2:34 am

inkspot wrote:It seems like the distinction here is basically the terms "writing" and "arrangement".

Most people commonly use the term "writing" for any portion of a song, whether it is the lyrics, the vocal melody, the drum line or a series of chords on a guitar, but in musical legal terminology "writing" refers to the vocal portion of the song and "arrangement" refers to the instrumental portion of the song.

Am I getting that right? I am not versed in all this jargon.

That's where I am/was getting hung up too. There are the colloquial terms and then the legal ones. I think that Silencio clarified my misnomers though. The way I understand it is that for the purpose of copyright registration and/or song ownership (as it were) the lyrics and vocal melodies are the two elements that can be copyrighted as a song. I think that I remember from my reading, though, that sound recordings can also be copyrighted, but I have to go back over it.

The reason I am confused is because, what about a solely instrumental track? What about composers? How would they be able to protect/register/own their material if timing, rhythm, chords, and the rest are not considered the writing of a song, but then I guess those things are not really songs are they?

bassjones · Post by **bassjones** » Fri Jun 01, 2007 6:49 am

Recordstar wrote:Brad..Thanks for the vote of "knowledge". Silencio nailed it. All you really have to do is pick up a Form PA (For a Work of Performing Arts) from the US Copyright Office and read. It is very self explanaory. BUT PLEASE>>>>do not read in to it "sidewalk music terminology" by confusing Author (the creator of the the work) and the term "writer". Nowhere within the copyright form is the word "writer" used. It seems that we had (sic) a month long conversation regarding copyrights. Perhaps a "Copyright Workshop" is in order. I'm sure there are enough budding authors of musical works out there that could benefit from it. Silencio, are you, and other knowlegeable individuals out there, game to assist in conducting such a workshop???

How about a Songwriting Workshop with that as a piece? I think that would be great. Songwriting is as much craft as it is art. You have to develop your skills. I know I'm getting much better the more I do of it.

Recordstar · Post by **Recordstar** » Fri Jun 01, 2007 7:19 am

I will check with my corporate partners (FOXGROVE, LLC) about sponsoring a portion of a "Songwriters Workshop". Any suggestions for a venue to hold it..?? Anyone out there (Silencio..??) interested in providing their knowledge, experience...etc...towards this project?? Contact me at foxgrovemusic @verizon.net.

Silencio · Post by **Silencio** » Fri Jun 01, 2007 7:59 am

First of all... Garr, I apologize for the hair-trigger response. I've been having a stressed-out week, so I was prone to misread your post. I try to be more even-handed 'round these parts.

Recordstar, I'll drop you a line. If this is something people might be interested in.... mebbe so, mebbe so.

inkspot · Post by **inkspot** » Fri Jun 01, 2007 7:59 am

Garr wrote:The reason I am confused is because, what about a solely instrumental track? What about composers? How would they be able to protect/register/own their material if timing, rhythm, chords, and the rest are not considered the writing of a song, but then I guess those things are not really songs are they?

I am confused about that as well, but I did notice that Silencio mentioned the following:

Silencio wrote:It is possible to copyright an arrangement of a song, but the arrangement is not the song.

Now I don't know how that all works, but maybe Silencio could clear that up for us.

Garr · Post by **Garr** » Fri Jun 01, 2007 8:56 am

And you can also copyright the actual recording too. Like, when Sirface (then Surface) did that Cars song forever ago, they paid Rock Ocasek something like $0.60 per copy of the CD for the rights to distro the song which he wrote, but they owned the copyright to the recorded performance.

I've seen this with audiobooks also. There is a copyright for the text, which was written and owned by the author, and then the recording of a person speaking that text is also the copyright of the studio which recorded it.

Silencio · Post by **Silencio** » Fri Jun 01, 2007 9:17 am

Okay...

1. In the case of an instrumental work, the author obviously copyrights the entire work. In the case of a lot of instrumental work (like documentary scoring, for example), the arrangement IS the work. But frequently an instrumental piece has a clearly identifiable melody... for example, if I create an instrumental piece that uses the "dummmm dah DUM dum" lick from the Dragnet theme, I am in violation of the author's copyright. Same goes for tunes like "Sleepwalk." In that case, it's no different than any other song, except it has no lyrics... the author is the person who created the melody.

Major digression alert: While you can copyright an entire instrumental work, only the most original and most recognizable parts of that work are likely to be defensible in court. In the real world, only a strong melody can be said to be "stolen." But defending yourself in court is not the primary reason for copyright... it's to delineate an income stream from a given work. To clarify, let's say you've written a bang-up vocal arrangement of ABBA's "Dancing Queen" for swing choirs. There's precious little chance that you're ever going to end up in court, claiming that some other swing choir arrangement guy stole your ultra-cool harmonization of the two measures leading into the chorus. That's not the point... you copyright the arrangement so that other publishers won't go Xeroxing your arrangement and selling it as their own. There is an income stream to be derived from a copyrighted work, and the copyright exists to draw the banks of that stream.

2. When covering a song, like Garr mentions, there is usually no direct negotiation between, say, Sirface and Ric Ocasek or his publisher. The right to record any previously published work (called a "mechanical license") is automatic, and the amount paid to the author for each copy sold is spelled out in copyright law. You can learn all about it at the website of the Harry Fox Agency, which collects mechanical license fees for virtually every US publisher.

http://www.harryfox.com/index.jsp

Mechanical rights are not to be confused with synchronization rights - i.e.,, the right to "synchronize" a recording (or a newly recorded version of the work in question) to any other form of entertainment. These rights - to use the music in TV or film, in advertising, on a website, etc. - are negotiated case-by-case with the song's publisher (or, in the case of original recordings, who or whatever owns the recording... frequently, they belong entirely to the record company, who can sell them to any car, shoe or tomato juice company they like, often with no input from the recording artist).

Recordstar · Post by **Recordstar** » Fri Jun 01, 2007 9:43 am

In regards to The Harry Fox Agency (HFA) and mechanical rights licensing...HFA will only collect royalties for those publishers that are affiliate publishers of HFA. Go to HFA.com for all the particulars regarding HFA participation. While a published work in its entirety, or a portion (Sampling) is used, the publisher grants the mechanical licensing. As an Affiliate of HFA, HFA will negotiate granting mechanical licensing. I believe the the current rate is in the neighborhood of 9.1% per copy. at least that is what I paid for the last one I obtained. However...use in sampling is open for negotiation. Sampling fees can run from $0.00 per time spot of usage to $5000 per time spot of usage and up. We are currently in negotiation with The Speed Channel and Fox Sports regarding sampling fees. Just be sure you have a good entertainment attorney when you reach this level and before.

inkspot · Post by **inkspot** » Fri Jun 01, 2007 10:55 am

I have to say I am glad I am not an entertainment attorney. Just reading some of these posts is giving me a headache!

bassjones · Post by **bassjones** » Fri Jun 01, 2007 10:59 am

Silencio wrote:Okay...

1. In the case of an instrumental work, the author obviously copyrights the entire work. In the case of a lot of instrumental work (like documentary scoring, for example), the arrangement IS the work. But frequently an instrumental piece has a clearly identifiable melody... for example, if I create an instrumental piece that uses the "dummmm dah DUM dum" lick from the Dragnet theme, I am in violation of the author's copyright. Same goes for tunes like "Sleepwalk." In that case, it's no different than any other song, except it has no lyrics... the author is the person who created the melody.

Major digression alert: While you can copyright an entire instrumental work, only the most original and most recognizable parts of that work are likely to be defensible in court. In the real world, only a strong melody can be said to be "stolen." But defending yourself in court is not the primary reason for copyright... it's to delineate an income stream from a given work. To clarify, let's say you've written a bang-up vocal arrangement of ABBA's "Dancing Queen" for swing choirs. There's precious little chance that you're ever going to end up in court, claiming that some other swing choir arrangement guy stole your ultra-cool harmonization of the two measures leading into the chorus. That's not the point... you copyright the arrangement so that other publishers won't go Xeroxing your arrangement and selling it as their own. There is an income stream to be derived from a copyrighted work, and the copyright exists to draw the banks of that stream.

2. When covering a song, like Garr mentions, there is usually no direct negotiation between, say, Sirface and Ric Ocasek or his publisher. The right to record any previously published work (called a "mechanical license") is automatic, and the amount paid to the author for each copy sold is spelled out in copyright law. You can learn all about it at the website of the Harry Fox Agency, which collects mechanical license fees for virtually every US publisher.

http://www.harryfox.com/index.jsp

Mechanical rights are not to be confused with synchronization rights - i.e.,, the right to "synchronize" a recording (or a newly recorded version of the work in question) to any other form of entertainment. These rights - to use the music in TV or film, in advertising, on a website, etc. - are negotiated case-by-case with the song's publisher (or, in the case of original recordings, who or whatever owns the recording... frequently, they belong entirely to the record company, who can sell them to any car, shoe or tomato juice company they like, often with no input from the recording artist).

One more question/example. The bass line for Under Pressure being, which was an intricate part of that arrangement, being stolen for Ice, Ice Baby. Was that a violation? Also a few years ago, there was a case where a band had basically used an entire rolling stones arrangement but set it to a slightly different sequenced groove and different lyrics, but the stones sued and I think settled out of court...

So, basically all these samples being used by hip-hop artists aren't violations of copywrite law? Even if they sample the "hook" of the song - the afore mentioned bass line for example?

Silencio · Post by **Silencio** » Fri Jun 01, 2007 11:53 am

In both cases mentioned, you're talking about a sample of a recording (the Stones thing wasn't just an arrangement... The Verve actually sampled a record of orchestral versions of Stones' songs made by the Stones management... the record was "Bittersweet Symphony"). Those are protected as Sound Recordings, a whole different thing than a song.

You can go ahead and play your own version of the "Under Pressure" bass line in s a song of your own creation... you probably wouldn't have to dig too far to find one that has a bass line very close or identical. But if you precisely mimicked the timbre and tempo of the original, and let it play all by itself like the original, then the owners of that recording could make a case against you, even if you made your own recording. (We're still talking about he copyright on a sound recording here, not a song.)

"Bittersweet Symphony" is a good example. The Verve swiped the Andrew Loog Oldham record, and violated copyright. Then I was asked by a client a couple years ago to create a score for a TV commercial that "keyed" off "Bittersweet Symphony!" My score used the same type of bouncy eighth-note figures, the arco strings, a similar chordal movement, but was not in any way the music from "Bittersweet Symphony."

The hiphop guys got their wrists slapped a few times and now all those samples are cleared and paid for. (Well, the recognizable ones, anyway.) If they AREN'T cleared, then they DO violate copyright law.

WBOB · Post by **WBOB** » Fri Jun 01, 2007 4:00 pm

All I wanna know is can Chuck Berry violate himself ?

Silencio · Post by **Silencio** » Fri Jun 01, 2007 4:35 pm

Chuck Berry is a pretty good illustration, actually.

The chug-a-lug Chicago blues guitar figures and barrelhouse piano rolls define the Chuck Berry arrangement, and have been borrowed by everybody who ever played in a rock band. (Actually, they're not original with Chuck, either, but he made the sound accessible and famous.) You can sing any lyrics and melody you want over those same figures, and it's not actionable.

But if you sing a recognizable melody over them - as the Beach Boys did when they recorded "Surfiin' USA" (a dead lift of "Sweet Little Sixteen"), then it's actionable. Berry sued over that song in the 70s and won. Check it out... if you look it up on the BMI database now, Berry is listed as the author.

So, there you go... a clear example of the difference between a "song" and the components of a band arrangement of a song.

echosauce1 · Post by **echosauce1** » Fri Jun 01, 2007 8:13 pm

What does the law say about live performance? For example, if a band covers a song copyrighted by another artist in a live setting, is the owner of the copyright owed royalties?

I understand with acts that only play locally it really would never be an issue that is brought up, but say a large national act covers a song in concert? I imagine that if said act releases a live cd that includes a live version of the cover then they would be but I am not sure about just playing the song live.

That brings up another question as I was typing this. What kind of royalty (if any) must be paid by "tribute" bands? Do they need specific permission to not only perform the songs but copy the look of the original performers as well? I understand the original performer may not necessarly be the writer of the songs but take a band like Kiss for instance. If a tribute band copys the makeup and clothes (which obiviously is an image that is unmistakably Kiss) does Kiss hold any rights to that image?