In this part of the blog series on Music Law, we explore protection of an artistic performance.
Please understand, this blog is not intended to provide specific legal advice to your individual situation or circumstance, but instead provides a general overview of United States Copyright Law, and its implication on artists, producers, writers, and other creatives in the music industry.
Congratulations!!! Your first song was played on the radio, and became a hit. Obviously, first minds would think its time to round up the roadies, call the manager (if you have one), and hit the road on bookings and tour. Everyone knows the worst thing is to miss an opportunity to capitalize on a hit.
In Part 2 of this series, we discussed who owns the copyright to lyrics and the underlying musical composition. But who owns the ability of an artist, or other person, to perform the song publicly. As we discussed in Part 1, in general, there are three (3) different copyrights, and associated rights at play: (i) lyrics; (ii) musical composition; and (iii) the actual performance of the song.
As a bit of a recap, there are eight (8) works of authorship that can be protected under the Copyright Laws; musical works and sound records are two of the eight. The Copyright Law defines each in a different way: (i) a “musical work” is the musical composition inclusive of both lyrics (if any) and the actual musical composition and arrangement - in most common terms, what we would think of as a “song”; (ii) a “sound recording” is the fixation of a series of musical or other sounds (including narration or spoken word) in a work.
So its necessary to somewhat break down the parts of a “song”. As you can see above, lyrics are an individual piece, the musical composition is an individual piece, and though lyrics and composition combine, the complete song is its own copyright.
But prior to hitting the circuit, and performing in nightclubs, festivals, or any other venue; what concerns should an artist, DJ, manager, or even producer have? Obviously the concern of payment and royalties is first and foremost on their minds. This installment of the series wont address royalties, and the structures in place for their accounting and distribution.
Well, as it relates to the actual performance of works, the Copyright Act has some insight, and even a rudimentary understanding of it would be exceptionally beneficial. In 2007, the United States Congress passed legislation that would provide for, and extend, the obligation for protection and royalty for “performance rights” under § 106 of the Copyright Act that applied to radio stations playing sound recordings over the airs.
Prior to passing § 106, there in fact was no prior protection for a sound recording played over the radio airwaves. But the development of the recording industry, changed the nature of the business, and changed the industry from a concentration on selling sheet music to the development of actual recording artists. But between the Copyright Act’s passage in 1909 and 1972, a sound recording wasn’t copyrightable under the federal law. But when it became 'copyrightable', the radio station owner’s were such a powerful lobby that they were able to get a carve out in the law to prevent performance right protection from covering the sound recordings that were played over the radio. Needless to say, many artists and other copyright holders were losing tons of money in royalties for songs played on the internet, and further lost control over the same. The radio industry claims that the “free play” of sound recordings on the radio helped to push record sales and that it ultimately benefited artists and record labels.
RIGHT OF PERFORMANCE
As it relates to a musical composition, or musical work, one of the rights that the Copyright Act grants the owner is the exclusive right to perform that composition publicly. Under 17 U.S.C. § 101, to “perform” a copyright means to “recite, render, play, dance, or act it, either directly or by means of any device process or, in the case of a motion picture or other audiovisual work, to show its images in any sequence or to make sounds accompanying it audible.
So the question that should plague the uninitiated copyright owner should be, what is a “performance” to which the musical composition copyright owner would have right to control?
Thankfully, barring the advent of new technology, many court cases have determined what is a “performance” under the copyright law:
(i) presentations by live musicians
Herbert v. Shanley Co., 242 U.S. 591 (1917)
(ii) playing tapes or records
Cass County Music Co. v. C.H.L.R., Inc., 88 F.3d 635 (8th Cir. 1996)
(iii) playing a jukebox
Broadcast Music Inc. v. Blueberry Hill Family Restaurants, Inc., 899 F.Supp. 474 (D.Nev. 1995)
(iv) playing on-hold music through a system
Prophet Music, Inc. v. Shamla Oil Co., 1993 U.S. Dist. LEXIS 7839 (D.Minn 1993)
(v) radio or television broadcasts
Buttnugget Publishing v. Radio Lake Placid, Inc., 807 F.Supp.2d 100 (N.D.N.Y. 2011)
Coleman v. ESPN, Inc., 764 F.Supp 290 (S.D.N.Y. 1991)
(vi) retransmission of radio or television broadcasts
Cass County Music Co. v. Muedini, 55 F.3d 263 m(7th Cir. 1995) – radio
National Cable Television Ass’n, Inc. v. Broadcast Music, Inc., 772 F.Supp. 614 (D.D.C. 1991) – television
Home Box Office, Inc. v. Cornith Motel, Inc., 647 F.Supp. 1186 (N.D.Miss. 1986) – cable network programs
So when it comes to the “public” nature of a performance, how have courts provide protection to copyright owners? Again, thankfully the copyright laws are well-established, and litigated in this country, and as such, the courts have provided great direction in determining what is a “public performance” of a musical work.
The basic definition of a “public performance”, found in 17 U.S.C. 101, is when there is a performance at a place open to the public or at a place where a substantial number of people outside of a normal circle of family and its social acquaintances are gathered; or when one transmits or otherwise communicates a performance to such a place.
Courts in the United States have found a public performance to have occurred in:
(i) restaurants, bars and nightclubs
Broadcast Music, Inc. v. Haibo, Inc., 2012 U.S.Dist. LEXIS 32869 (W.D.N.Y. 2012)
E Beats Music v. Roy Andrews, 433 F.Supp.2d 1322 (M.D.Ga. 2006)
Buck v. Jewell-LaSalle Realty Co., 283 U.S. 191 (1931)
Emi Mills Music, Inc. v. Empress Hotel, Inc., 470 F.Supp.2d 67 (D.P.R. 2006)
On Command Video Corp. v. Columbia Pictures Industries, 777 F.Supp. 787 (N.D.Cal. 1991)– where movies were played over the in-room movie system
(iii) health clubs, gyms, and fitness centers
Chi-Boy Music v. Charlie Club, Inc., 930 F.2d 1224 (7th Cir. 1991)
(iv) retail outlets
Broadcast Music, Inc. v. Calvin’s Furniture & Appliances, 1996 U.S.Dis. LEXIS 7566 (W.D.N.Y. 1996)
Broadcast Music, Inc. v. Jeep Sales & Service, Co., 747 F.Supp. 1190 (E.D.Va. 1990)
(v) skating centers
MCA, Inc. v. Parks, 796 F.2d 200 (6th Cir. 1986)
(vi) bowling centers
Broadcast Music, Inc. v. Niro’s Palace, Inc., 619 F.Supp. 958 (N.D.Ill. 1985)
(vii) private clubs
Bourne Co. v. Hunter Country Club, Inc., 772 F.Supp. 1044 (N.D.Ill. 1990)
Fermata Int’l Melodies, Inc. v. Champions Golf Club, Inc., 712 F.Supp. 1257 (S.D.Tex. 1989)
IMPORTANCE OF COPYRIGHT OWNERSHIP IN PERFORMANCE
Many are aware that in this day and age of the music industry, artists are earning less and less for album or single sales; and ultimately the big label deal has lost the luster that it once had. Many artists, especially those just getting their footing, are spending a vast majority of their time and effort on the road building a buzz for themselves and performing their songs in as many places as possible. As we see above, any public performance of a song, including on the stage, or through a jukebox, is subject to copyright protection and ultimately royalties being paid, or owed.
Where the artist fails to secure a copyright in their performance of a musical work, they are allowing dollars to slip through their fingers.
Where a label, or publisher, fails to secure a copyright interest in their investment, they too are allowing dollars to slip through their fingers.
The Carrington Firm has represented artists and labels in their copyright and protection efforts across the country. We are able to recognize the individual nuance of interest to both individuals and business entities, and have successfully advised in both circumstances. Contact our professionals today to learn how we might be of assistance to you.
On the next blog in this “Music Law” series, we will discuss artists and the right of publicity that is inherently owned by each.