United States: Navigating The Maze Of Music Rights

Music may soothe the savage beast, but, unfortunately, it appears not to have soothed Congress or courts with respect to copyright issues. Music copyright is one of the most complex areas of intellectual property law.

To begin with, there is a copyright in notated music and a copyright in accompanying lyrics. When the piece is performed, there is a copyright in the performance that is separate and apart from the copyright in the underlying work.

If a sound recording is used in connection with pictures, then a synchronization license must be obtained. If a sound recording is played on the radio, a payment for this use must be made.

Although the initial decision to use music and the identification of that music is a creative process, as you can see, there are legal issues which should be considered.

This evaluation should occur fairly early on since the rights you desire to obtain may be unavailable. For instance, it was necessary for the producers of the "9 to 5" television series to have a new rendition of that song prepared as the theme song for the television show since the original rendition by Dolly Parton was not available. Her sister had to perform the sound-alike version for the network program.

It should be determined where the music will be used and the extent of its use. Will it be used on television, in movies, on the radio, on the Internet, in stores, or the like? How much of the music will be used? Will it be the entire work or merely a small segment? Is the use for noncommercial educational purposes, or is the work to be part of a commercial deal? Frequently, the music is earmarked for a pilot program and subsequent uses are not contemplated. It is always a good idea to try to get options for any more extended use, particularly if it is anticipated that the pilot could develop into a more expanded arrangement.

There should also be some consideration for the extent of the market. Will the music be only distributed in the United States, or is worldwide syndication possible? Remember that the Internet is the World Wide Web. You should be aware that rights owners may restrict the use of the work for purposes of esthetics or taste. A Christian music publisher may not wish to have its material appear in blue movies. Those who control rights to romantic pieces may wish to prohibit their use in connection with new-age selections.

Once the scope of use and other related issues are determined, it is important to negotiate with the appropriate rights holders. Authors and composers frequently assign their rights to music publishers. Most of the larger publishers work with clearinghouses, such as BMI, ASCAP or Fox. There are similar clearinghouses throughout the world, and it is incumbent upon one who desires to use the music to obtain permission from the appropriate person or organization. Most of them have websites which will aid in determining what rights and clearances can be obtained through them.

The copyright law in some jurisdictions, such as the United States, also provides for compulsory licenses. That is to say, there are situations in which prospective users of copyrighted works may be permitted to obtain a license without even negotiating with the copyright owner or licensing agency. You must be careful to comply with the rules of compulsory licenses or you may be found to be infringing the copyright in the work you use.

In some cases, no license will be required. The United States Supreme Court has allowed some degree of flexibility when the perspective use is for purposes of parody or if the use is a so-called fair use.

Only those who understand the complexity of the music business will be in a position to avoid problems. Working with a skilled intellectual property lawyer throughout the creative process will aid you and your business in avoiding the cost of having to hire a litigator to defend you when a problem surfaces.