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MMD > Archives > November 2001 > 2001.11.18 > 04Prev  Next

Copyright & Licensing in USA
By Matthew Caulfield

[ Dean Smith asked in 011116 MMD what copyright problems might
 [ be encountered when producing music rolls of Christmas music.

Here is a little bit on copyright from a non-lawyer (me) but one who
worked one floor above the U.S. Copyright Office for years and may have
picked up a little by osmosis, plus from personal and professional
interest in the subject.

Music is covered by the same copyright law as covers literary or other
artistic creation, although there are some special features covering
musical compositions and recordings.  Music copyrights do eventually
expire, as all copyrights do.  The Copyright Act of 1976 and its
amendments changed the length of copyright for published works from
what was, under the previous copyright act, a simple and fixed 28-year
period, (renewable, upon application in the 28th year, for a second and
final 28-year period)  to the more complex  concept of "life of the
author plus 75 years."

Anything published before 1923 is now in the public domain, and that
rule of thumb may solve the dilemma about "old-time Christmas music."
So if the tune you want to use was composed before 1923, or if you
want to use a particular arrangement of the tune and that arrangement
was arranged before 1923, you are free to make use of it.  If the
song was copyright after 1922, you should consult the very useful and
easy-to-understand chart covering copyright duration, showing when
copyrights expire, at:
The tune or arrangement may or may not be in the public domain.

Sound recordings of musical compositions (as opposed to compositions
themselves) are a different matter.  You will not be free to copy or
make other use of a specific recording that was made before 1976 until
the year 2024.  That is due to special provisions in the 1976 Act that
provided protection for those recordings that was totally lacking in
all previous Federal copyright law.

In producing a music roll using a public-domain Christmas tune, you
will necessarily be involved in a certain amount of arranging of that
tune.  As such, under the 1976 Act, your underlying arrangement can be
copyrighted (as a musical arrangement) and so can your music roll (as
a sound recording).

Even if you do not copyright them, you remain the owner of all rights
arising from their creation, such as the right to make and sell copies,
and to grant or refuse or license that right to others, and to control
the making of derivative works such as new arrangements.  You would
owe no royalties to anyone, and nobody could legally copy your
arrangement or your music roll without your permission.

If the tune you wish to use is not in the public domain, you will need
the permission of its copyright owner in order to use it or to make an
arrangement of it.  If you want to make sound recordings of a tune
under copyright, you need the permission of the copyright holder unless
he has already granted the right of recording to someone else.  Once he
has done that, he cannot withhold that right from you.

You can either work out a fee deal with him or, failing that, pay the
fixed fee per copy that is stipulated in the Copyright Act of 1976,
which I think is 7 1/2 cents.  So if you make 100 music rolls of the
tune, you would owe $7.50.  The Harry Fox Agency is the fee-collecting
organization in the sound recording industry corresponding to ASCAP or
BMI in the music performance and broadcasting fields.  But if you go
to Harry Fox with your little $7.50 deal, they will probably laugh or
ignore you.

All in all, life is a lot simpler if you use only public domain
material in making music rolls.  An added benefit to that is that
whoever later plays your music roll in public would not be subject to
ASCAP performance fees, though theoretically you could join ASCAP and
have that organization collect performance royalties for you.  But
don't quit your day job, as they say.

Music copyright has always been a complicated issue to understand,
because the concepts of creation, arrangement, recording, and
performance may all be involved.  And the interplay of the different
Federal statutes that have governed copyright, plus common law
copyright (a concept eliminated from post-1975 copyright by the 1976
Act), plus prior state copyright provisions, make the field even harder
to navigate for anyone but a lawyer.

Matthew Caulfield

(Message sent Sun 18 Nov 2001, 23:14:20 GMT, from time zone GMT-0500.)

Key Words in Subject:  Copyright, Licensing, USA

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