Mita Carriman, a onetime indie musician herself and now a lawyer in entertainment, intellectual property and small business law, has offered some noteworthy, hard-nosed counsel to indie musicians, busting a quartet of music-law myths, fallacious notions that can harm composers and performers if they rely on them.
The four myths she seeks to debunk include:
Myth: “Poor man’s” copyright, the fantasy of gaining legal protection by e-mailing or snail-mailing yourself a copy of your work. Carriman points out that a copyright is triggered once an original work is “fixed” in a tangible medium of expression, such as by recording an original song on a CD or MP3 or by the act of writing down the lyrics and music. She underscores that those who create content must protect their works formally through U.S. copyright law by registering them with the Library of Congress; copyright owners then can avail themselves of remedies, with lawsuits for damages of $750 to $150,000.00, plus attorney fees per act of infringement via statutory damages. A leading case on how rights get fixed? Midway Manufacturing Co. v. Artic International Inc., in which a court held that aspects of a video arcade game could be copyrighted though its images appearing on a screen were transient.
Myth: “50 second… 5 second … 8 bar … or 1 bar,” the false notion that some musicians think permits legal sampling of music they do not own or control without proper authorization. Carriman points out that owners of valid copyrights may sue those who sample their works in unauthorized ways. To avoid these woes, she urges musicians to get a license to sample works, clearing the rights to them and-or the sound recording. She also warns against relying on fair-use claims, in which courts will weigh the four factors in a balancing test: (1) Purpose & character of the use (2) the nature of the copyrighted work (3) The amount and substantiality used; and (4) the effect of the use upon the potential market for or value of the copyrighted work. As she hammers home: “More often than not, music sampling by musicians is not protected by fair use, and even if it is, you still have to pay to defend your argument in court.”
Myth: Mix- or mash-up give-aways enjoy a magic online pass, a fantasy that many indie musicians entertain as they distribute their works (songs or mix-tapes) with samples not cleared, online and for free. Under the Copyright Act of 1976, copyright owners possess exclusive rights to reproduce, distribute and make derivatives of their music. Although musicians may not make a cent and may give away their mash-ups or mix-tapes with unapproved samples of others’ works, they still can be sued or face other legal consequences.
Myth: A compulsory cover license is all-encompassing, the mistaken belief that it gives musicians permissions to use others’ works in sweeping, different and many ways. The U.S. Copyright Office establishes the terms of the compulsory license, with set royalty percentages and payment schedules. And while it allows musicians, as long as they make payments as spelled out by statute, to use songs without getting consent from those who hold rights to the originals, this license does not automatically grant, say, the right to make a music video with the cover song. A separate synchronization license must be obtained, this allows the licensee to “sync” music with a visual medium.