Do I really need to clear a sample?
As a rule of thumb the answer to this question has to be “Yes – every time”. There are some circumstances where a sample will not need to be cleared, e.g. because it is in the public domain and is available from sites such as the Open Music Archive. However, use of the vast majority of samples will almost certainly require formal, written clearance, payment of a licence fee and/or a royalty.

The consequences of not obtaining clearance…
A review of some of the cases around the unlawful use of samples, show that failure to obtain clearance can prove expensive.

DNA and the Tom’s Diner Case - DNA had to pay £4,000 for remixing Suzanne Vega’s song “Tom’s Diner”. It is understood that Vega’s label acquired the rights to the remix and re-released the record. The re-release went on to become a much larger hit than Vega had with the original song. Although this was seen as an amicable, out-of-court settlement, DNA had to pay a fine and lost the track. Whether any future royalties were shared with DNA remains a mystery.

Robbie Williams and Jesus in a Camper Van - Robbie Williams had to remove the track “Jesus in a Camper Van” from his album “I’ve Been Expecting You” because it infringed the copyright in a track “I’m The Way” published by Ludlow Music Inc. You can imagine how delighted Williams’ label was! In addition, Williams had to pay 25% of the income already received fom album sales that included the infringing track, amounting to some £50,000.

The Verve and The Rolling Stones - The Verve track “Bitter Sweet Symphony” included an uncleared sample of The Rolling Stones’ “The Last Time”. The Verve had little option but to agree to allow Mick Jagger and Keith Richards to receive 100% of the songwriting credit for the track.

How do I clear a sample?
Clearing a sample is, in theory, a relatively simple process – you are just asking the owner of the copyright in a recording if you can use part of that recording to include in your own work. Our 6 simple steps for obtaining clearance are:

1. Allow plenty of time. This process can take some weeks!
2. Identify what you want to sample.
   For example, I may want to sample part of “Dirty Rain” from Ryan Adams’ album “Ashes & Fire”.
3. Identify the record label that owns the track you want to sample.
   The sleeve notes tell me that Pax-Am Records/Columbia is Ryan Adams’ record label.
4. Identify the publisher of the track you want to sample.
   This can be a little more difficult. If you cannot find the publisher then contact PRS for Music who provide a sample clearance service.
   In our example, a little research on the BMI website tells me that Bug Music is the publisher for “Ashes & Fire”. I subsequently discover that Bug Music has been acquired by BMG Rights Management.
5. Write to the record label and the publisher and ask for their consent to your using the sample.
   You’ll need to tell them who you are; what part of the recording you want to use; and describe how you will use it – preferably by providing an MP3 recording of the new track.
   In our example, I’d write toPax-Am Records and BMG Rights Management.
6. If consent is provided in principle then you will need to agree the terms of the agreement. This will typically mean agreeing a fee for use of the sample and a licence agreement that will permit you to use the sample.

How much does sample clearance cost?
The cost of clearing a sample vary enormously. Clearance of a sample from a recognisable track by a big name artist will typically cost far more than a sample from a new artist with modest sales.

For example, it is reported that Dido was happy to allow Eminem to sample her track “Thank You” in “Stan”. This presumably occurred without charge, but the resulting notoriety for Dido was clearly well worth it!

Typically, record companies will charge a fixed sum to clear use of a sample. It is not unusual for a further sum to be payable in the event the new recording is successful. The record label may require an initial clearance fee of, say, £1,000 with a further £1,000 payable when sales reach 5,000 copies.

Publishers tend to be content with a percentage of the publishing income from the new recording. Depending on the extent of the sample, this can be up to 100% of the total publishing income, although a lower percentage is usually agreed.

Register your sample
Once you have obtained clearance from both the record label and the publisher, you’re free to use the sample in your new recording. At this point in time you should register the new recording with PRS for Music. This will ensure that you get paid when the new recording is played, say, on radio, and that the relevant shares are properly recognised by PRS for Music.

Sample Clearance Service
Legality offers a sample clearance service for a fixed fee of £295 + VAT per sample. This includes an examination of your sample, identification of the relevant record label and publisher, a clearance letter to both record label and publisher, and negotiation of terms and fees. For more details please call Mark Roberts on 0161 212 1718.

What are ‘performing rights’?
Performing rights provide artists with rights not dissimilar to copyright. Whilst copyright protects music, lyrics and sound recordings, performing rights provide artists with protection for their performances or recordings of their performances. For example, an artist who performs on stage or during a concert would usually benefit from performing rights.

Performing rights provide the performer with the following protections:

• the right to control the broadcasting of his or her live performance to the public;
• the right to prevent the recording of any live performance; and
• the right to prevent copies of a recording of a performance being made.

These rights are collectively known as a performer’s ‘non-property rights’.

A performer can also prevent the copying of any recording of their performance, and may be entitled to payment for any recorded performance that is subsequently broadcast, publicly performed or rented. These rights are known as the performer’s ‘property rights’.

Can you provide some examples?
An artist’s performing rights may be infringed if any of the following occur:

• A covers band performs your music in a public venue without obtaining the requisite consents;
• Your music is played in a business (such as your local hairdresser);
• Your music is made available on a publicly accessible webiste for download.

How do I exercise my performing rights?
The simplest way to exercise your performing rights is to join a collection society such as PRS for Music. Membership of PRS for Music costs just £10. By joining PRS for Music you transfer parts of your copyright to PRS for Music. These include your rights to:

• perform your music in public (at clubs, pubs, shops and concerts, etc.); and
• communicate your music to the public (via radio, satellite, cable, the Internet, etc.).

For music played on terrestrial radio stations the royalties range from £16.84 per minute on Radio 1 to 62 pence per minute on Absolute Radio (figures correct as at Dec 2010).

PRS will deduct an administration fee from all royalty payments, full details of which are available here.

Summing up…
Performing rights are extremely valuable. Collecting societies such as PRS for Music provide a cost effective way in which musicians can work together to receive payment for the performance of their works.

Please feel welcome to leave comments and feedback on the above post. I am also happy to answer general copyright questions submitted as comments through this entry. If you would like to discuss any specific requirements then please feel welcome to call me, Mark Roberts, on 0161 212 1718.

1. Doing nothing is not an option: If you do nothing and simply run your band without any formal agreement in place then an archaic piece of law (the Partnership Act 1890 – yes – 1890!) says that the relationship between the band members is a legal partnership. The Partnership Act 1890 gives rights but also imposes obligations on the band members in the partnership. This can have severe, unintended consequences. For example in the event of a split, no band member can use the band name without the consent of the other band members (which is unlikely to be provided!). Neither can the majority of band members ‘oust’ another band member from the group.The good news is that a relatively simply band agreement can amend the terms imposed by the Partnership Act 1890 so that you have an agreement that works for you.
2. No time like the present: Right now the band is doing great. It’s hard work, but you’re starting to get some great feedback and managers and labels are showing interest. A band agreement is the last thing you need – right? Wrong! Now is the best time to put together a band agreement – whilst you’re all still talking and getting on fine.  Getting a lawyer to draft an agreement needn’t be costly either. At Legality we offer a free one hour consultation, will fix a price with you for completing a band agreement, and will only expect payment once you start receiving income. So have a simple agreement drafted now. That way you can get on with the business of making music, safe in the knowledge that many key issues have been put to bed.
3. Protecting your assets: Your band already owns some valuable assets – your band name, your MySpace & webpage and all the goodwill that you have been built up playing gigs – not to mention the band’s PA system and other equipment.
   A band agreement allows you to protect these assets by providing answers to questions such as
   “Who owns the band name?”
   “What happens to the band name if we split?”
   “Can we stop a departing band member posting to the band’s MySpace page?”
   “What are my options if I choose to leave the band?”
   “Who owns the PA?”
   “Can I take my guitar with me if I leave?”
4. Knowing where the money goes: A band agreement will specify what happens to the income received by the band. The question is particularly relevant to songwriting income where disputes can be particularly bitter. What works for you will depend on your own situation. For example, does one band member tend to write all material, or does each band member contribute? There are various solutions to this issue. For example, it is reported that Blur share all income equally, though Graham Coxon and Damon Albarn as key composers, receive a 30 and 40 per cent share respectively.
   The agreement will also identify what expenses are band expenses and what expenses are personal expenses. Most importantly, the agreement will set out how the band will authorise expenditure on equipment. Typically, group expenses are deducted from the group’s income before any payment is made to the band members.
5. Smooth management of departures and new arrivals! There are 101 different reasons why band members may wish to leave – from family reasons to relocation to a breakdown in relationships within the band. Likewise, there are as many reasons why a band may wish to dismiss one of it’s members. Consider the sad and well documented fall from grace of Guns N’ Roses’ drummer Steven Adler. But the fact is that you can’t have a drummer that can’t drum!
   A well drafted band agreement will provide for what happens if a member wants to leave. For example, whether the member be entitled to receive income on recordings made during his or her time with the band?
   It will also provide an agreed process by which a band member can be dismissed if needs be. The agreement will often provide examples of behaviour that is considered unacceptable and which will, if not corrected, ultimately result in dismissal.
   Finally, the agreement will provide an agreed process for bringing in new band or replacement members. Here, the agreement would typically provide that the band must reach a unanimous agreement so as to avoid the scenario where several band members are unhappy about the new appointment but have been forced to accept the new arrival by the majority. This would otherwise provide a harmful source of resentment and ill-feeling within the new line-up.
6. Look professional: I always think that a band that has covered all the commercial bases demonstrates their commitment to the music business. The band looks professional and other advisers and suitors will recognise this. In any event a record label will almost certainly insist on the band having an agreement so as to protect their investmnet in the band. I’m not promising that a band agreement will result in a management or record deal – just that it’s one more box ticked on the commercial side that leaves you free to concentrate on the creative side of the band’s business!

Should you wish you discus any of the issues raised above, or talk through your need for a band agreement, then please call me, Mark Roberts, on 0161 212 1718 for a free, without obligation chat.

Collection societies provide a range of valuable services to artists. They provide a ‘bridge’ between the artist and music user by granting licences to use your music. As part of this service, collection societies recover licence fees from music users and distribute these fees to the artist. In the UK we are fortunate to be home to PRS for Music – one of the world’s leading collecting societies.

Here are our top tips for maximising your revenue from collection societies:

• Register with your collecting society. You can register with PRS for Music by clicking here. Once registered, you will start to receive royalty payments from your collection society. Different societies pay in different ways but, with PRS for Music, royalties are divided between the writer and publisher in accordance with the publishing agreement. If your publishing agreement does not specify the division of royalties, 50% will be paid to the writer and 50% to the publisher. For mechanical rights, PRS for Music will pay 100% of the royalties to the publisher on publication of the music. If the music is unpublished, 100% of the royalties is paid to the writer.
• Manage your relationship. Whilst many collection societies have good working relationships with other societies in other countries, the system is far from perfect. So, if you are aware that your work is receiving substantial airplay in, say, France, but you are not being paid for this use, then let your collection society know this. It is preferable to be able to state where and when your work is being used so that your collection society can relay this information to their overseas counterpart.
• Consider other collection organisations. In many countries the law recognises a range of rights in a song. In the UK, for example, there is copyright in the lyrics, in the music, and in any performance of the work. If you are registered with PRS for Music then this will ensure that you are paid for your songwriting, composing and publishing. However, you would also need to register with PPL who collect licence fees on behalf of performers and their record companies.
• Make a back dated claim. Many collection societies are more than happy to assist you in making a back dated claim for royalties. For example, PRS for Music will allow you to back date a claim up to three years – provided you were a member during this time.
• Make use of special schemes. Many societies provide special schemes to allow you to recover royalties in special situations. A good example is PRS for Music’s Gigs and Clubs scheme where, if an artist has performed a gig at a pub, club or bar they can submit a typical set list. PRS for Music then pay the songwriters and publishers of the works performed. The scheme benefits touring performers, resident performers and DJs alike.

If you have any questions about any of the matters discussed above, then please feel welcome to call Mark Roberts of Legality Solicitors on 0161 212 1718.

Legality Solicitors provides clients with two template NDAs free of charge. These templates can be completed by you and reused with the aid of the accompanying drafting notes. The first NDA is a one way or unilateral NDA where you disclose confidential information to a third party.  The second is a mutual NDA where both parties disclose confidential information to the other. To obtain either or both NDAs and accompanying notes please email me at mark@legality.biz.

Here are 10 reasons why a good NDA is required:

1.  Protecting your assets.  In the modern world, information is key and is one of our most valuable assets.  It needs to be safeguarded but sometimes it can’t be legally protected such as by way of a patent or copyright.  A well drafted NDA will protect the confidential information being disclosed.  This may include information relating to business operations, customers, suppliers, plans, processes, product information, know-how, trade secrets or software.

2.   Obligation to keep the confidential information secret. The NDA creates a contractual obligation to keep the confidential information secret.  This avoids any dispute over whether the recipient was on notice that the information was being disclosed in confidence.  This makes it easier to enforce a claim rather than relying on the general law which would be less certain and would be more expensive.

3.  Controls the use of the confidential information. The party to whom the confidential information is disclosed is only permitted to use it for a “permitted purpose”.  This may be analysing whether to enter into a further development agreement or assessing whether to enter into a joint venture.  The recipient is therefore prevented from using the confidential information for any competitive reason.

4.  Limits the disclosure of confidential information. The NDA requires that a recipient of confidential information only discloses the confidential information to its employees and representatives on a need to know basis.  Before doing so, the recipient must advise them of the confidential nature.  Those employees and representatives are then themselves subject to a non-contractual obligation of confidentiality.

5.  Confidential information is kept secure. The NDA stipulates that the parties must ensure that there are adequate security measures in place to protect the confidential information.

6.  Protects the ownership of the confidential information. The NDA will ensure that ownership of the confidential information will remain with the disclosing party and that no rights will be granted to the other party other than those expressly set out in the contract.

7.  Benefit of an indemnity. You are given an indemnity (a strong legally binding promise) by the recipient for all losses arising from a breach of the NDA.

8.  Protects against claims for misrepresentation or breach of warranty. The NDA specifically states that the recipient is not to place any reliance on confidential information and that no warranty is given regarding the completeness or accuracy of the confidential information.

9.  Relationship of the parties. The NDA will ensure that the parties do not inadvertently create any legal partnership or agency arrangement between them.

10. Confidential information returned or destroyed. Once the NDA has terminated, for example if the project does not proceed, the parties are required to return or destroy the other’s confidential information.

Alternatively, if there is no right to ownership of the software, it is important to establish the terms of any licence to use the software.

The Rule of Thumb

As a general rule of thumb, the author of the software owns the copyright to the software. The owner of copyright is entitled to an important set of rights and privileges. These include:

• the right to copy the software;
• the right to authorise another party to copy the software;
• the right to distribute the software;
• the rights to authorise another party to distribute the software;
• the right to demonstrate the software; and
• the right to adapt the software (e.g. by adding functionality or bug or error corrections).

An exception to this rule is where an individual develops software as an employee. In this case the employer becomes the owner of the copyright to the software (unless, for example, the contract of employment states otherwise).

Copyright in an original development of software lasts for 70 years from the death of the developer of the software. Where software is jointly developed, the right lasts for 70 years from the end of the year of the death of the last developer.

Consultants and Contractors

In reality most software development is outsourced to consultants or contractors – either personally or through employment agencies. Generally speaking such consultants or contractors will automatically own the copyright to the software they develop unless a contract provides otherwise.

It is therefore common for contractor agreements to contain a clause which transfers all intellectual property rights (which includes copyright) to any software developed to the party paying for the contractor’s development services. An example of such a clause would be as follows:

The copyright and all other intellectual property rights in the software (in both source and object code), the software documentation, the functional specification and in all other listings and specifications and documentation relating to the software shall pass to the Company on acceptance of the software.

The contractor may wish to protect his or her position by providing that :

The Developer reserves the right to use in any way it thinks fit any programming tools, skills and techniques acquired or used by the Developer in the performance of this Contract.

This is a reasonable and valid way of preventing the company for whom the software was developed from arguing that the Developer can never again utilise the same method of working.

Employment Agencies

Where an employment agency is responsible for placing a freelance software developer with the company paying for the software development, it is especially important to ensure that copyright in the developed software is transferred to the end user.

This is because copyright in the software will typically belong to the freelance developer unless transferred to the agency. The agency will then also need to transfer ownership of the copyright to the party commissioning the software development.

Independent Contractors

In an attempt to avoid the taxation consequences of IR35, many freelance software developers have established themselves as companies. However, both developers and those responsible for commissioning the development of software should recognise that it is possible (even highly probable) for freelance developers to be deemed ‘employees’ and not ‘contractors’.

In determining whether an individual is an employee or an independent contractor, various tests are applied. These tests include an assessment of the level of authority that an employer has over the individual. For example, an employer that pays an individual holiday pay, sickness benefits, provides a pension and health insurance and dictates the precise hours and place at which the individual will work will almost certainly be deemed an employee and not a contractor – irrespective of the fact that the employer has a contract with the contractor’s company – and not with the employee.

This is critically important as if the independent contractor is found to be an employee, the employer will automatically be entitled to ownership of any software created by the developer. This may not be what the developer or employer intended. It is therefore critical that a development contract between employer and employee/independent contractor specifically deal with ownership of copyright. Failure to do so may leave the developer unable to resell his software in other markets.

Licensing

On occasion a party commissioning the development of software recognises that it will not own copyright to the software – only a right to use the software. In such scenarios the software developer may wish to sell the software to other potential users. The costs of such a development will generally be less than the cost of obtaining exclusive rights to the developed software – as the developer will have the opportunity to make additional profits from sales to third parties.

However, if the party that commissions the software development does not own copyright to the software, it will be important for him to know the terms of the software licence which permit use of the software.

For example, is the licence limited in time or to a number of users? Will you be entitled to receive an Euro compliant version of the software without additional charge? Is your use of the software restricted to a particular server?

It is therefore extremely important for the parties to agree the terms of a written software development and licence agreement that sets out in full the rights to use the software and which provides for other matters such as the provision of support and maintenance services by the developer and the release of the source code in the event that the developer becomes bankrupt or dies.

Key Points

Given the above, we recommend that both software developer and the organisation paying for the software development clearly set out in a written software development agreement who is to own copyright in the software. Where ownership of copyright is to be transferred (e.g. from the developer to the company paying for the development), it will be necessary for there to be a formal written transfer of copyright.

Further, if you have a software development agreement, but something changes during the course of development then ensure that the change is reflected through a formal written amendment to the development agreement.

The cost of developing a customised software development contract or software licence is minimal – usually no more than £1,000. The costs of using the courts to settle ownership disputes are immense – typically not less than £20,000. Add to this the management time taken to resolve any dispute and the risk that a court may limit your right to use the commissioned software, our firm advice is that you always utilise a formal, written contract.

To discuss any queries regarding software or copyright on an informal basis with no obligation, please call Mark Roberts on 0161 212 1718.

Which deal is best for the artist or the record company will vary depending on the circumstances. In this article, we look at the benefits of each.

1. The Licence Deal
Under a licence deal the artist will licence the record label to use the recordings made by the artist. The licence would usually permit the record company to manufacture, distribute and sell named recordings. A licence deal might be appropriate where the support required of the record label is limited, e.g. where the artist has already made a recording.

In recognition of the fact that the record company undertakes less work under a licence deal, the record company generally accepts a reduced royalty rate and reduced packaging deductions are payable.

2.  The Exclusive Recording Contract
Under this type of deal the artist exclusively appoints the record label to manage the music recorded by the artist during the length of the contract. An exclusive recording contract typically lasts for 1 year, but provides the label with the right to renew the contract for further periods of time. The label will generally require the artist to record one album during the contract term.

In return for exclusivity, the artist can expect a significant investment of time and resources from the label. This could extend to include the recording of videos and marketing and promotion costs.

3.  The Development Deal
The development deal is a hybrid of the exclusive recording contract. However, rather than require the artist to record an album’s worth of material, the deal is that the artist will record a number of demos or singles. The label can then make a decision to extend or terminate the relationship with the artist on a ‘suck it and see’ basis.

The fees payable to the artist under a development deal are limited and may only cover recording costs. However, the development deal provides an artist with an opportunity to impress the label. In theory, the label gets to see the creative best from an artist who will be hoping to secure a full, exclusive recording contract.

4. The Production Deal
The production deal is another hybrid of the exclusive recording contract. In a production deal, the artist does not contract directly with the record label, but with a business that makes recordings. The recording company then licenses or assigns those recordings to a label. Typically, the record label is an offshoot business of the recording company.

The production company will generally expect exclusivity from the artist for as long as copyright in the recordings is available. During the term of the contract, the production company will look to develop the artist by recording several tracks and will then ‘tout’ their artists to the bigger labels in the expectation that the production company’s rights will be acquired either through a licensing deal or assignment.

The advantage to an artist in signing up with a production deal is that the artist may enjoy greater creative freedom and benefit from a greater degree of focus from the owners of the production company. However, the down side is that most production deals are 50:50 net profit deals – where the artist only receives 50% of net profits. This is minimal when compared with the royalties that are potentially payable under an exclusive recording contract.

5. The 360 Deal
A typical exclusive recording contract will allow the record label to make money from selling the recordings of the artist. Under a 360 deal the artist agrees that the record label can make benefit from all areas of activity in which the artist is involved. This could include royalties received from areas such as merchandising  and ticket sales. More importantly, the 360 deal may also extend to cover monies received through other areas of an artist’s life, such as acting, writing or promotions.

An alternative to the 360 deal is a 270 deal which is the same as a 360 deal but excludes publishing.

To discuss any queries regarding record deals on an informal basis and without obligation, please call Mark Roberts on 0161 212 1718.

The Artist

The artist will require independent legal advice:

• To ensure that he/she fully understands the deal on offer.
• To ensure that he/she understands what is missing from the management agreement. It is not unusual for key terms to be excluded from a first draft. For example, the agreement may not allow the artist to terminate the agreement if a record deal has not been signed within, say, 18 months.
• To benefit from the generosity of their management company! A manager will almost certainly insist that the artist have independent representation for the reasons described below. Management may even be prepared to pay the artist to receive such advice. A budget of £1,000 to £1,500 is usually sufficient to ensure that the needs of the artist are properly catered for.
• To be certain that once the ink is dry on the agreement, he/she can concentrate on their music and associated career, safe in the knowledge that their business affairs have been protected.

If a manager is unable or unwilling to pay for your legal fees, then please call us. We may be able to help you if your finances are limited by agreeing to be paid only if your career becomes successful. Alternatively, members of The Musicians Union can obtain access to a legal service, albeit this should not usually be considered an alternative to independent legal advice.

Management

Management will require an artist to take his/her own independent legal advice. This is because in England and Wales, the law assumes that the relationship between artist and manager is one of undue influence. This means that the law will assume that a manager will be able to exercise influence over an artist. This influence could be used to get an artist to sign a management agreement. In such a scenario the Courts may be willing to set aside the management agreement as if it had never been signed – with dire consequences for the manager. The manager may stop the Court from making this assumption if it can show that the artist has taken independent legal advice.

Many managers will themselves also require independent legal advice. No two deals are ever the same, and whilst the manager may have a template agreement that he or she has used before, this may need updating to take account of recent changes in law or recent innovations (such as iTunes or other digital media). Managers too have access to template agreements and legal advice through the MMF.

To discuss any queries regarding management deals on an informal basis and without obligation, please call Mark Roberts on 0161 212 1718.

Moral rights can be extremely useful. For example, in 1993 George Michael was granted a pre-trial injunction by the Court of Appeal preventing the release of a medley of various Wham! songs called the ‘Bad Boys Megamix’. The Court found that the release of the ‘Bad Boys megamix’ would be in breach of Michael’s moral rights as it was capable of being distortion or mutilation of his work amounting to derogatory treatment.

How long do moral rights last?
The rights of paternity, integrity and privacy last for the normal term of copyright, which is the life of the author plus 70 years.  The right to prevent false attribution is limited to 20 years after the death of the author.

Also, the right of paternity has to be ‘asserted’. This means that the artist has to ‘stake a claim’ to their moral right. For an artist this is usually achieved by specifying wording such as:

The author has asserted his/her moral right in accordance with Section 77 of the Copyright, Designs and Patents Act 1988.

The simplest way to assert a right of paternity is to ensure that it is clearly set out in any agreement in which you assign your copyright to any music or lyrics to a third party, e.g. a publisher. In respect of jointly written works, each artist must independently assert their right of paternity.

In addition, moral rights cannot be assigned to a third party, e.g. to your publisher. However, moral rights can be waived by the artist, and this fact is often seized upon by media businesses. For example, in film-making a film company will always want the security of moral rights waivers from the composer of any music used in a film. The rationale for seeking a waiver is that any organisation who acquires rights to exploit any type of copyright work should not be inconvenienced by having to respect the artist’s moral rights! However, with an large number of deals between parties of increasingly equal bargaining positions the time has never been better for an artist to seek to retain their moral rights.

What is the situation overseas?
Moral rights in the United Kingdom are far more limited than in the rest of Europe. For example, in France, moral rights (or droit moral) cannot be waived. Other countries benefit from additional moral rights, such as the right to correct work, object to alteration or destruction and withdraw from circulation. In the United States there is no formal concept of moral rights. Bear these differences in mind and take specific legal advice if you are ever working overseas! For example in the U.S. you will need to include contractual protections equivalent to moral rights in your contracts with publishers and record companies.

Wrapping up
In summary, moral rights are extremely valuable and you should endeavour to retain them wherever possible. Whilst it is still the norm for these rights to be waived, it is becoming increasingly possible to negotiate a retention of your moral rights in music business contracts. If you must waive your moral rights against lawful users (e.g. your publisher) then try to retain your rights against unlawful users.

Please feel welcome to leave comments and feedback on the above post. I am also happy to answer general copyright and moral rights questions submitted as comments through this page. If you would like to discuss any specific requirements then please feel welcome to call me, Mark Roberts, on 0161 212 1718.

1. Copyright which gives the creators of music, lyrics and sound recordings rights to control use of their work. These rights include saying who can and cannot make copies, issue copies to the public, or broadcast and use on-line.
2. Moral Rights which provide a right for an artist to be identified as the creator of material such as a song, and to object to any distortion or false or misleading portrayal of their material.
3. Performing Rights which provide various rights in performances by an artist, such as a gig. These include rights in all recordings, films or broadcasts of their performances.

The first part of this mini-series looks at copyright. Moral rights and performing rights will be the subject of future blog posts.

What is copyright?
Copyright protection is automatically and freely available for works that are original and that have been recorded. The law regarding copyright is set out in the Copyright, Designs and Patents Act 1988 (the ‘CDPA’). In essence, copyright rewards individuals who have independently created a piece of work such as music or lyrics by enabling them to control use of their work.

The CDPA sets out various categories of works that qualify for copyright protection. For musicians, this means that distinct and separate copyright works can exist in relation to a song recorded to CD. In this example, copyright protection will apply to:

• The music of the song  which is classified as a ‘musical work’.
• The lyrics of the song which is classified as a ‘literary work’.
• The sound recording of the song which is classified as a ‘sound recording’.

The fact that the CDPA provides copyright protection for sound recordings is of particular interest to musicians as a new, clear and separate right of copyright will exist in a recording of any existing piece of work. So, if a producer records an artist playing one of their songs then a new work has been created by the generation of that sound recording.

Artists can use this to their benefit. For example, Squeeze recently re-recorded part of their back catalogue when Universal refused to grant them a licence to use their original recordings. By re-recording their original works a new work was created and Squeeze own that work. This has put them back in commercial control of the songs that they originally created.

Who benefits from copyright?
The CDPA states that the person who creates the work – the ‘author’ – owns the copyright to that work. So, the artist who writes lyrics or music will own the copyright to those lyrics or music.

Often the lyrics are written by one person and the music by another. Alternatively, two or more persons could collaborate on writing a song – both being involved in the creation of lyrics and music together. In both scenarios, the artists are called co-writers and they jointly own the work they created. In this scenario, the artists should ensure that they agree, in writing, who owns the lyrics and who owns the music. If the artists have worked together on elements of both then they should record the percentage contribution made in each area (e.g. Miss Lyricist – 20% music, 75% lyrics and Mr. Songwriter – 80% music and 25% lyrics).

Needless to say, there are numerous disputes between artists, producers and band members as to who wrote what. Not surprisingly, these disputes tend to surface when the disputed song becomes a hit! The most prominent recent example is that between James Blunt and producer Lukas Burton in which Burton claims to have co-written six songs with Blunt from the Back to Bedlam album. The preponderance of such costly, prolonged and damaging disputes makes it clear that a written record of ‘who owns what’ should accompany the writing and recording of any material.

A special provision applies to sound recordings, where the CDPA states that the author is deemed to be the ‘producer’ of the sound recording. However, the CDPA goes on to define ‘producer’ as meaning the person who made the arrangements necessary for making the sound recording. This typically means that the party who paid for the recording will own the copyright to that recording. Artists should therefore tread carefully in this area and preferably take legal advice. Before entering a studio as part of a demo or studio deal, be clear who will own what rights and ensure this is set out in writing and signed by the producer and studio.

How long does copyright last?
Copyright protection generally lasts for the life of the author plus 70 years from the end of the calendar year of his or her death. There are some exceptions to this. For example, for works created by co-writers copyright lasts for 70 years from the end of the calendar year in which the last known co-writer dies.

For sound recordings, copyright lasts for 50 years from the end of the calendar year in which the recording is made or published, or, if not published, played or communicated in public (where this occurs during that period).

What protection does copyright provide?
If you benefit from copyright then the CDPA prevents a person doing any of the following acts without your permission or consent:

• Copying your work.
• Issuing copies of your work to the public.
• Renting or lending your work to the public.
• Performing, showing or playing your work in public.
• Communicating your work to the public.
• Making an adaptation of your work or doing any of the acts listed above in relation to an adaptation.

For there to have been an infringement one of the listed acts must have been committed in respect of the whole or a substantial part of your work. What is a ‘substantial part’ is assessed on the basis of quality rather than quantity.

In the 1934 case of Hawkes & Son Limited v Paramount Film Service Limited the court held that a 20 second sample from a four minute recording of Colonel Bogey was an infringement of copyright because that sample was so recognisable. Lyrics also receive protection. In Ludlow Music Inc. v Robbie Williams and others (2000), the court found that the Robbie Williams song “Jesus in a Camper Van” had taken the central idea from Ludlow’s “I am the Way (New York Town)”, namely that the Son of God attracted bad luck by going round saying “I am the way” and had embodied it in virtually identical words. This was of sufficient substance to amount to an infringement of copyright.

What can I do if somebody has infringed my copyright?
If somebody has infringed your copyright then there are a range of possible remedies. These include:

• Injunctions – which can give you the power to search premises, freeze assets or prevent the sale of, say, counterfeit music.
• A court order requiring the infringer to deliver infringing copies of your work to you.
• Seizure of infringing copies and other articles.
• Forfeiture.
• Damages to allow you to recover the money you would have made but for the infringing act. Alternatively, you may be entitled to require the infringer to account to you for the profits the infringer made from their illegal activity.
• Criminal sanctions for certain offence. For example, making an infirnging copy of a copyright work available for sale or hire carries a maximum penalty of 10 years imprisonment or a substantial fine.

Please feel welcome to leave comments and feedback on the above post. I am also happy to answer general copyright questions submitted as comments through this entry. If you would like to discuss any specific requirements then please feel welcome to call me, Mark Roberts, on 0161 212 1718.