D.I.Y. v. GETTING SIGNED TO A MAJOR RECORD LABEL IN THE CURRENT SOCIAL MEDIA ERA

The question these days for musical performing artists seems to be whether it is better to do it yourself ("DIY") or sign with a major record company. The answer is: it depends.

It used to be, back in the 1970s, '80s, '90s and even into the start of the new millennium, that the major record companies had talent scouts scouring the country and searching the clubs for talent. There were layers of A&R staff at major labels (A&R stands for “artist and repertoire”) who were often producers that would take artists into studios and make recordings. That way a record label could find out what an artist might sound like on record before proceeding further. The A&R staff would also review songs from publishers and songwriters to choose “hits” for the artists already signed to the label to record. Sometimes artist managers and lawyers would pitch talent to the A&R personnel, a process which was commonly referred to as “shopping” an artist to a label. For the most part, those days are done.

These days the A&R staff could more accurately be referred to as R&D (research and development). They no longer need to scour the clubs or take demos shopped to them by managers and lawyers. Artists can make state of the art recordings in their homes and distribute it digitally with the push of a button. The labels can search the internet and websites like TikTok and YouTube to see what artists are garnering interest from the public. These days, a new artist's mission is more about creating a “buzz” with an online presence and doing live shows to build a fan following. The record companies are interested in analyzing data before they take an interest in investing time and money in a project.

The major labels are now less about finding and developing raw talent and more about marketing and promoting the artists that have developed themselves and built the widest public appeal. Rather than bring new artists into the studio to work with them, the labels tend to find artists that are already performing live and drawing crowds, and already have at least some recordings commercially released and available online. Since an artist can create good quality recordings in a home studio, and easily upload music for commercial release through any number of online distributors, any artist can make music and get it out to the public without the need for a major record label’s assistance. The labels actually want the DIY artist to develop its sound and test market itself. When there is interest from the public, voluminous hits on an artist’s website or YouTube video, substantial sales of the artist’s music, and long lines at the live shows, then the major labels start sniffing around. The contractual downside of signing with a major record company is that in most cases their contracts assign ownership of your copyrights to the company in exchange for funding (an advance and a promise of royalties); the DIY artist can retain ownership of its copyrights and then use and exploit them to generate income.

On the up side, as an independent artist these days you can make and distribute your own recordings online through the digital streaming services and promote the music through social media and with live performances - and keep 100% of the copyrights and 100% of the profits. In the "good old days" an artist needed a record company to fund the recordings in state-of-the-art recording studios and then print, warehouse and ship the physical records to brick and mortar stores. Before Spotify, AppleMusic and other digital streaming services, radio was the only gateway to the public, and you needed a record company to market and promote the music to radio. You no longer need to go that route. You can do it yourself if you prefer.

If the DIY route is not for you, then you still need to do some legwork to get the attention of a major record company. What you, as an artist, need to do, first and foremost, is work on your art. That can be a combination of writing great songs, making great recordings, making interesting videos and creating a great live show – any and all of those things. You need to build your websites and develop your social media in order to link your fans to your work so that the public can hear your music and see your performances. An artist needs to create a “buzz”, create excitement and interest for what the artist is doing creatively. Some artists do it with a killer song and others do it with an interesting video. You need to create something unique and interesting that the public just cannot resist. It is not easy. It takes hard work and perseverance – and requires a little luck to get attention. However, if the alternative is to give up and go work in a grocery store or some other day job, then you might as well hone your craft and give it all you have to try to create something that demands that people pay attention. Then, if you want, you will get signed to a major record company that will, hopefully, help fund your expanding efforts and spread your artistry to a broader audience around the world.

Wallace Collins is an entertainment lawyer handling contract negotiation and general copyright and trademark law matters in the music, film, television, book, fine arts and technology areas. He was a songwriter and recording artist for Epic Records before graduating from Fordham Law School. T: (212) 661-3656; www.wallacecollins.com 

USE OF "SAMPLES" FROM PRE-EXISTING RECORDINGS STILL NEED TO BE PROPERLY CLEARED TO AVOID COPYRIGHT INFRINGEMENT

Many clients still ask about whether or not they can "sample" from an existing sound recording and how much is permissible to use, and whether or not they need permission to embody a sample in their new sound recording.

Sampling occurs when a portion of a prior sound recording or fixation of sound is incorporated into a new sound recording. When such a use occurs two copyrights are involved: the copyright in the sound recording and in the underlying musical composition embodied in such recording (i.e., the song). If sampling occurs without permission, copyright infringement of both the sound recording (usually owned by the record company and/or artist) and the song (usually owned by the publishing company and/or songwriter) has occurred.

 

In order to legally use a sample, you need to contact both the owner of the sound recording and the copyright owner of the underlying musical work for permission. License fees for sampling vary greatly and depend on how much of the sample you intend to use, the perceived value of the recording you intend to sample from, and the intended use of the sample in your song. Licenses can be granted "gratis" but usually there is a fee which is either a percentage of the record royalties and/or the mechanical royalties or for a flat fee paid upon execution of the sample license agreement (or a combination of both). There are no statutorily mandated rates for samples so the copyright owner can charge whatever the copyright owner wants to charge and does not have to grant permission to use his work at all.

  

Using samples without permission can lead to litigation where an infringer may be forced to pay damages to the copyright owner which could amount to hundreds of thousands of dollars per infringement. A court can also order you to recall and destroy all of your infringing copies and, in certain cases, can award the costs and legal fees incurred by the prevailing party in such a lawsuit.

  

Although the "2 Live Crew"/"Pretty Woman" infringement case turned on the issue of "fair use", I do not recommend to clients that they try to rely on that copyright law doctrine when they want to use a sample in their work. And the idea that you can use a certain number of notes or seconds of someone's song without penalty is a myth. 

One other issue is what is known as "interpolation" which refers to using a melody - or portions of a melody - from a previously recorded song, but re-recording it instead of sampling the original. Interpolation is used when the artist or label who owns the sound recording declines to license the sample or if licensing the sample is considered too costly. Unfortnately, this work around avoids using the sound recording copyright but may still implicate the underlying song copyright. In many cases, similar to samples, interpolations may infringe a copyright owner's exclusive rights in the song. However, unlike samples, since interpolations only implicate the preexisting musical composition then only a license from the musical work's copyright owner may be necessary.

Bottom line: the only proper way to use a sample of a prior recording in your recording is to get permission. 

Wallace E.J. Collins III is an entertainment and intellectual property lawyer based in New York. He was a teenage recording artist for Epic Records before receiving his law degree from Fordham Law School. Tel: (212) 661-3656; www.wallacecollins.com 

BEWARE: ARTIFICIAL INTELLIGENCE POSES A THREAT TO ARTISTIC CREATIVITY AND A POTENTIAL COPYRIGHT INFRINGEMENT NIGHTMARE!

The headlines these days are full of stories about artificial intelligence (“AI”). It seems AI has gone from science fiction to reality in a very short period of time. From Open AI’s ChatGPT app to Google’s MusicLM music creation tool, the future is now. A few decades back the struggle over digital rights and copyrights was a sideshow, of concern only to a relatively small slice of the population. Now, however, everyone is online, which means that even if you don’t consider yourself a creator as such, material you write, post or share could become part of an AI engine and used in ways you never imagined. To wit, several of my clients have recently raised concerns about the threat of AI, and the threat AI may pose to authors, artists (both fine and graphic artists) as well as songwriters and musicians… so let me try to break it down.

The tech behind AI is a complicated, but at its most basic AI engines ingest massive data sets, which they then use to train software that can make recommendations or even generate code, art, or text. Sometimes the engines are scouring the web for these data sets so they can learn what is on a webpage and catalog it for search queries; other times, AI engines have access to huge proprietary data sets built in part by the text, photos, and videos users have posted on their respective platforms. Unlike the music piracy lawsuits of decades ago, the AI engines are not making copies of the data they use and distributing them under the same name. The legal issues, for now, tend to be about how the data got into the engines in the first place and who has the right to use that data.

AI proponents argue that AI engines can learn from existing data sets without permission because there is no law against learning, and that turning one set of data into something entirely different is protected by the law, as affirmed by a lengthy court fight that Google won against authors and publishers who sued the company over its book index, which cataloged and excerpted a huge swath of books. Those against AI argue that if AI is going to use original material created by others then the AI engines should get a license from the original author or creator, or from whoever owns the copyright. Otherwise, the AI engines are violating the rights of the authors and creators of the underlying materials and, even if the result is not an exact copy of the underlying work (think “sampling” in music), the resulting AI product would not exist “but for” the underlying work and the use of the AI work competes with the artists or creators’ ability to make a living.

As of now, the US Copyright Office has stated that it will not accept a copyright registration on any work of authorship created using AI. However, there is still the issue of whether the resulting AI creation infringes the copyrights of other authors when it incorporates the work of the original authors into a new AI work or some sort (regardless of how remote or miniscule the resulting use in the new AI-generated work). Using the MusicLM system as an example, the Google researchers noted that MusicLM did have a tendency to incorporate copyrighted material from training data into the generated songs. During an experiment, they found that about 1% of the music the MusicLM system generated was directly replicated from the songs on which it trained (a threshold apparently high enough to discourage them from releasing MusicLM to the public in its current state).

Assuming MusicLM or an AI system like it is one day made available, it seems inevitable that it will give rise to major legal issues, even if the systems are marketed as tools to assist artists rather than replace them. AI music generators violate music copyright by creating a mosaic of coherent audio from prior works they ingest in training, thereby infringing the US Copyright Act’s reproduction right. Similar concerns have been raised around the training data used in image, code and text-generating AI systems, which is often scoured from the web without creators’ knowledge. New works generated by an AI system would arguably be considered derivative works, in which case only the original elements of the AI-generated work would be protected by copyright (although it is unclear what might be considered “original” in such a context).

It might not be long before there is more clarity on the matter. Several lawsuits are making their way through the courts which will likely have a bearing on music-generating AI, including one pertaining to the rights of artists whose work is used to train artificial intelligence systems without their knowledge or consent.

Current AI platforms are crude and imperfect, but by design AI improves and gets “smarter” the more it is used. AI may still be in the early horse & buggy stage - but AI could quickly advance to the Tesla level. Authors, creators and artists beware!

 

Wallace Collins is an entertainment lawyer and intellectual property attorney based in New York. He was a songwriter and recording artist for Epic Records before receiving his law degree from Fordham Law School. www.wallacecollins.com 

 

 

"It's A Wonderful Life" - A Public Domain Copyright Success Story!

A long time ago in a galaxy far, far away... a box office failure fell into the the public domain, and that eventually lead to its current, massive ubiquity as a classic holiday film. 

Legend has it that the current popularity and success of the beloved holiday classic "It’s a Wonderful Life" may be due in part to the fact that its copyright lapsed and it fell into the public domain. At the time of its release, although some film critics took notice of it, the movie did poorly at the box office. Its poor performance upon release resulted in a financial loss to the film company. The film might have been forgotten if not for a 1974 filing error with the U.S. Copyright Office, when the then copyright owner missed filing a renewal application on time, causing the copyright in the film to lapse into the public domain. Since no royalties or other payments are due on a public domain work, and there is no restriction on its use, TV networks across America hungry for content started running it over and over during the Christmas holiday season (since it cost them nothing so was free content to fill TV airtime). As many millions of viewers were exposed to "It’s a Wonderful Life" repeatedly on their home television sets, those viewers came to appreciate its artistry, and it became the popular classic that we know it to be today.

The film was based on the story "The Greatest Gift" by author Philip Van Doreen Stern who registered his copyright in 1945. RKO Radio Pictures initially purchased the motion-picture rights to the story, but then the film would eventually become the first release of independent production company Liberty Films. Unable to recoup their production costs of over $2 million, Liberty Films was subsequently purchased by Paramount Pictures in 1947. With this sale, Paramount acquired the copyright interest in "It’s a Wonderful Life." After a number of subsequent acquisitions, Republic Pictures acquired the rights to the film. At the time the movie was filmed and released, under the Copyright Act of 1909, U.S. copyright protection lasted 28 years from publication with proper notice or registration, and could be renewed for an additional 28 years by filing a proper renewal registration with the Copyright Office. But in 1974, after the first 28 year period had passed, Republic Pictures failed to file a renewal for the film’s copyright protection thereby allowing the film to lapse into the public domain.

When the film lapsed into the public domain it meant anyone could show the film without obtaining permission or paying royalties. As a result, the film was repeatedly broadcast on network television throughout the holidays, and over the years the nearly forgotten film, starring Jimmy Stewart, finally became the holiday classic we know and love today.

Wallace Collins is a New York lawyer practicing primarily in the area of entertainment and copyright law. He was a recording artist for Epic Records before attending Fordham Law School. www.wallacecollins.com

 

SUPERSTAR CATALOG SALES OCCURING NOW ARE SUBJECT TO TERMINATION IN 35 YEARS!

      Under the 1976 Copyright Act, the length of copyright protection was extended for the life of the author plus 70 years. However, it also established a right for authors or their heirs to terminate copyright transfers after a certain period of time. In other words, even if an artist or songwriter signed a contract that purports to transfer all rights in a work in perpetuity, even if the artist or songwriter is “unrecouped”, the Copyright Act provides that the author can terminate that grant and demand that the rights revert in a shorter period of time. Recording artists and songwriters have been terminating their contractual transfers and demanding back control of their copyrights. As anyone reading the headlines is aware, numerous superstar artists and songwriters (e.g., Bob Dylan, Bruce Springsteen, Sting, etc.) have sold their entire catalogs to third parties for enormous sums. However, it does not appear that the 1976 Copyright Act sets forth any limit on how many times an author is entitled to terminate the transfer of copyrights – which would seem to indicate that 35 years from now these superstars (or, more likely, their heirs) will be entitled to again terminate the contractual transfer and regain the copyrights under Section 203 of the Copyright Act.

     Generally speaking under the Copyright Act, for copyright grants made on or after January 1, 1978 (the effective date of the 1976 Copyright Act) the termination period is 35 years under Section 203 of the law. For grants by an author on or after 1978, termination must be exercised prior to the 5 year period beginning at the end of 35 years from the execution of the grant. Although there are certain formalities which must be complied with to effectuate termination of the transfer, this essentially means that recording artists and songwriters were entitled to exercise their rights of termination on post-1978 works as of the start of 2013. Current headlines announce that many superstars have done precisely that, and then turned around and sold their music catalogs for millions of dollars. Although under Section 203 heirs who execute such a grant post-1978 cannot reclaim those rights again (e.g., Prince's estate), grants executed by an author on or after January 1, 1978 (including recent catalog sales by Dylan, Springsteen, Sting, etc.) do appear that they can be recaptured again after 35 years. 

    As a matter of music business history, back when the 1976 Copyright Act was drafted, few practitioners would have envisioned a world where the artists might not need the record companies to finance, manufacture, warehouse and distribute their physical records. Back then the expectation was that, although any particular artist could exercise the termination right, what would effectively happen is that the label and artist would simply be forced to renegotiate a deal to continue working together (either with the artist or with the heirs of the deceased songwriter or artist). Now, in the current digital transmission age, this is no longer necessarily true. Any artist can demand back the copyright in the masters and then simply offer them directly to fans on the artist’s website or the artist can license the rights to an online aggregator or digital streaming service with little or no expense. This is particularly true in the case of the recordings of certain well-established artists because those artists would not need the record company’s ongoing support to finance the recording costs to create new recordings, store their product nor require the funds for promotion and marketing. High profile artists with established fan bases and large catalogs of music like Blondie, the Cars, Bruce Springsteen and others have no need for much in the way of advertising and marketing, and there is no longer a need for manufacturing, distributing or warehousing of their product. Simple ownership and possession of the digitized masters is sufficient to conduct business.

     It is noteworthy that, unlike song publishing contracts which generally provide for the assignment and transfer of a song copyright to the publisher, most record contracts have provided that the sound recording is created as a “work for hire” for the record label. Under the 1976 Copyright Act the termination provision is not applicable to certain types of copyrights, including a genuine “work for hire” grant. However, this does not preclude recording artists from exercising their right of termination. Sound recordings are not listed under section §101(2) which identifies various works that constitute a work for hire. Moreover, several years ago I litigated a case, Ballas v. Tedesco (41 F.Supp.2d 531 (D.C.N.J. 1999)), where a New Jersey Federal District Court addressed this issue and Judge Greenaway held that the sound recording in that case did not qualify as a work for hire. There is a great deal of case law addressing the applicable legal employer/employee issues involved including those established in the seminal Supreme Court case Community For Creative Non-Violence, 490 U.S. at 738, 109 S.Ct. 2166 which held that a statue did not satisfy the terms of §101(2) because it "does not fit within any of the nine categories of ‘specially ordered or commissioned' works enumerated in that subsection, and no written agreement between the parties establishes [the statue] as a work for hire.” Most case law that addresses the subject of “work for hire” holds that whether a work created by an employee is a work for hire or not depends on various factors as well as the circumstances of the relationship - and not just the language of the contract. This area of law has been ripe for dispute by any recording artist who tries to exercise termination rights against a record company that resists the claim where the facts suggest that no genuine “work for hire” relationship ever existed.

     Many superstar artists and songwriters have exercised their termination rights under the 1976 Copyright Act, regained their catalogs, and then made multi-million dollar deals to sell the catalogs. Current copyright law provides that the a copyright extends for the life of the author plus 70 years, so 35 years from now Section 203 of that same 1976 Copyright Act may allow the heirs of those superstars to terminate these current transfers, regain the catalogs, and start the whole process again resulting in more remuneration generated from the copyrights.

Wallace Collins is a New York lawyer practicing primarily in the area of entertainment law. He was a recording artist for Epic Records before attending Fordham Law School. www.wallacecollins.com

 

Understanding The Compulsory License and How It Applies To Digital Transmissions Under The Music Modernization Act (MMA)

Under the US Copyright Act, Section 115 provides for a compulsory license to make and distribute sound recordings subject to certain terms and conditions of use. Under the compulsory license procedures, an artist need not ask the songwriter or music publisher for permission to make a recording nor negotiate a license fee. Instead, an artist merely informs the publisher of the recording and agrees to pay royalties as music is sold at the rate set by statute. Once a song has been recorded and distributed to the public on recordings, any person or group is entitled to record and distribute their own recording of that song without obtaining the copyright owner’s consent, provided they pay the statutory royalty and abide by the copyright law requirements.

In order to take advantage of this compulsory license, a notice must be sent to the copyright owner and then monthly accountings made thereafter. In order to obtain a compulsory license, you must (1) serve a timely Notice of Intention to Obtain a Compulsory License (NOI) on the copyright owner; and (2) make monthly royalty payments to the copyright owner. The fee for physical recordings is currently 9.1 cents per song (or 1.75 cents per minute of playing time) while the digital streaming compulsory license fee is a small fraction of that amount. To verify the current rate, check the Copyright Office's guide to compulsory licenses (On the site, you can click “Mechanical Royalty Rate”).

The Music Modernization Act (“MMA”) changes the Section 115 compulsory licensing process for digital music providers from song-by-song licensing to blanket licensing.  Prior to the MMA, song-by-song licensing required digital music providers to identify and locate, serve a notice on, and make payments to the copyright owners for every song on the provider’s service.  This is a huge task, and many lawsuits were filed against digital music providers alleging noncompliance with the song-by-song licensing requirements.  The MMA changes this approach to a blanket license that is administered by a new organization, the Mechanical Licensing Collective (“MLC”).  The blanket license is essentially a one-stop-shop for digital music providers.  The MLC will establish and maintain a comprehensive public musical works database, match works used by digital music providers, collect royalties from digital music providers, and distribute royalties to copyright owners.  The new blanket license became effective on January 1, 2021. 

The compulsory license provisions for recording music apply only to the use of the song for non-dramatic musical compositions. You could not, under the compulsory license, use it for dramatic purposes, such as in an opera or an overture to a musical. The compulsory license applies only to audio-only sound recordings distributed to the public. Therefore, it cannot be used to record a song for use on a television show or movie soundtrack. In such a case, permission would need to be obtained directly from the copyright owner.

Wallace Collins is an entertainment lawyer specializing in entertainment, copyright, trademark and internet law. He was a recording artist for Epic Records before attending Fordham Law School. www.wallacecollins.com

IS A TIKTOK DANCE ELIGIBLE FOR COPYRIGHT PROTECTION?

When I was recently asked whether someone could procure copyright protection for a TikTok dance, it got me thinking and so I decided to write this article on what I found based on my research.

Under US Copyright Law, a dance created by a choreographer or dancer is considered a creative work that can be granted copyright protection if: (i) it is an original work; (ii) it is a coherent whole (i.e., not just individual movements); and (iii) if it is fixed in a tangible medium (e.g., written illustration of the dance steps and movements or a video recording of the dance).

When someone creates a choreographed dance on a platform such as TikTok, that creation just might be eligible for copyright protection. However, simple dance routines - like an end zone celebratory dance or a series of yoga positions - have been deemed not protectable under copyright law. Basic dance moves or simple routines cannot be copyrighted separately, but a creator can copyright a dance as long as it is an original work which consists of the composition and arrangement of a related series of dance movements and patterns organized into a coherent whole. All of the dance moves which constitute the choreographic work must be described with enough detail so that the work can be consistently performed. Most protectable choreographic works are usually those which are intended to be executed by skilled performers in front of an audience, such as a ballet or a modern dance routine.

In most cases that TikTok dance probably falls into the non-protectable category, unless  there is a sufficient combination of body movement, spatial movements and coordination with musical accompaniment such that the social media dance would be protectable. Protection is more likely if the performance is by a skilled dancer, is for the entertainment of others (i.e., not for others to mimic for their own enjoyment) and involves a discernable storyline or theme.

Choreographic works are afforded the same exclusive rights as any other copyrighted work so, once protected, it would be copyright infringement and the basis for legal action if someone without legal authorization publicly performs the choreograph work or adapts, distributes or reproduces the work. When a dance is deemed copyrightable then copyright accrues from the time it is fixed in a tangible medium or expression (written or recorded) and lasts for the life of the author plus 70 years. Registration is not required for protection, but registering early grants additional protections and is required before the author can commence legal action in court. If a video was posted online that you believe infringes on your copyright, your first step should be to request that the offending video be removed under the Digital Millennium Copyright Act.  However, the digital service provider can restore the material if the alleged infringer sends a counter-notice explaining why the material is non-infringing – which then leaves the copyright claimant for the choreographic work with no alternative but to file a lawsuit against the alleged infringer as the  last  resort to protect the copyright.

Wallace Collins is an entertainment lawyer specializing in entertainment, copyright, trademark and internet law. He was a teenage recording artist for Epic Records before attending Fordham Law School. www.wallacecollins.com