The
purpose of copyright law is to protect a creator and their intellectual
property from plagiarism. The Copyright Act of 1976 defines the exclusive
rights of the copyright holder and the cause of action for infringement. Modern
copyright law was influenced by a variety of legal rights throughout history
that included the moral rights, economic rights, and property rights of authors
and consumers of many ancient cultures (Bettig, 1996). US copyright was originally
restricted to books, charts and maps but was amended by congress several
decades later to include musical works. By the time the nineteenth century came
to a head, domestic composers had generated quite the body of work and began to
rely heavily on copyright law to protect their works (Keyes, 2004).
Copyright
infringement occurs when one or more of a copyright owner’s exclusive rights
under the Federal Copyright Act are violated. According to Title 17 of the
United States Code, “the copyright holder must have a valid copyright, the
person who is allegedly infringing must have access to the copyrighted work and
the duplication of the copyrighted work must be outside the exceptions”. There
are many penalties and legal ramifications for copyright infringement that
include having to pay back the actual dollar amount for profits and any damages
that have incurred as a result of the infringement. Violators can be fined anywhere
from $200 to $150,000 for each infringement and will be on the hook for any and
all attorneys fees, court costs and restitutions. The court will most likely
issue injunctions to cease the infringing acts and arrange to have the illegal
works impounded and destroyed which is a cost that can be burdened upon the
violator by the record label, if applicable. Most copyright infringement cases
are civil in nature but can result in criminal convictions in extreme cases
like file sharing.
Copyright infringement is a very real concern
for the independent record label in my business plan. The biggest potential for
copyright infringement in my business will occur as a result of sampling.
Sampling involves taking elements from a pre-existing musical composition and
placing them into your own musical works (Salmon, 2008). Some would argue that
sampling is a form of fair use that improves upon music and some would argue
that it is a form of stealing but one thing is for certain; if the sample has
not been cleared by the copyright owner(s), “you infringe on the copyright
owner’s exclusive right to approve or refuse the creation of derivative works”
(Limelight, n.d.). There are two forms of sampling that avid listeners of music
should be familiar with: taking a portion of a master recording to use and
re-recording an all new version of the composition (Limelight, ¶3).
On September 13, 1994, hip-hop superstar
and Brooklyn native, The Notorious B.I.G. released his highly anticipated and critically
acclaimed debut album, Ready To Die.
Biggie’s release was also the very first album released on Bad Boy Records (which
was originally a subsidiary of Arista Records before its recent signing with
Interscope). B.I.G.’s album, which merged raw storytelling with street life
experiences and his rags-to-riches lifestyle garnered critical acclaim and went
on to sell more than 4 million copies and receive a series of accolades, many
of which came after his untimely murder in the early months of 2007, just days
before the release of his diamond selling sophomore album, Life After Death. On February 5th of 2007, Bridgeport
Music and Westbound Records filed a complaint against Bad Boy Records CEO, Sean
“Diddy” Combs for the unauthorized use of “Singing In The Morning” by The Ohio
Players (Rogers, n.d.). The five-second horn loop sample ended up costing Combs
a little more than $100,000 per second (Salmon ¶13). In the end, the trial judge awarded Bridgeport with $150,000
in statutory damages and Westbound with $366,939 in actual damages. Furthermore,
Combs was ordered to remove the samples from any subsequent pressings of the
album. Interestingly, this case led to two other tracks having samples removed
from the album, which resulted in a remastered version of Ready To Die, minus the three uncleared samples.
In
Bridgeport Music v. Combs, it was discovered that Combs (who was the executive
producer of Ready To Die) authorized
the release of Ready To Die with the
understanding that there were still samples on the album that had yet to be
cleared. Snippets of copyright protected sound that are processed, edited and
disguised all require permission to be used. Producers who remix or use samples
in their instrumentals and artists who employ resung elements of pre-existing
recordings are typically the ones responsible for gaining sample clearances
from the record label (Salmon, ¶18). To be able to clear a sample, one must
acquire both a license from the record label, or other entity that owns the
actual sound recording, and a license for the underlying musical composition,
which is owned by the publisher (Limelight, ¶3). In instances where the
original copyright was not assigned to the record label or publisher,
permission must be sought out from the respective copyright owners, or heirs if
applicable.
Protecting
my business from copyright infringement can be a lengthy process, particularly
if I sign acts that are heavily reliant on the art of sampling. However,
lengthy processes are a lot better to my business and I in the long run than
costly ones. To begin this process, I will need the name of the track to be
sampled, the name of the composer(s), the name of the record label and the name
of the persons who will use the sample. (All
Music Guide, Discogs, Music Brainz and Who Sampled are all great resources that will help me find this
information.) Next, I will need to provide the copyright holder with the
precise length of the sample to be used, a description of the usage, a copy of
the finished product and a written request for the sample to be cleared. If the
sample has been cleared to use, it’s now time to negotiate the extent of usage
and payment options. A flat fee, rolling fee and ongoing royalty fee will
depend on the song’s likelihood of success, the original work’s notoriety and
overall impact of the sample (Salmon, ¶30). After the details have been hashed
out, one critical element remains: the credits on the final product.
There
may very well be instances where using a sample is out of the question because
of price constraints or because of a denial for a clearance altogether.
Royalty-free music is one alternative to curbing copyright infringement. There
are many music companies that produce music for a one-time fee, free of
royalties and can be a lucrative alternative for somebody with a good ear and
good nose that can sniff out potential classics. Cover songs are a legitimate
alternative to sampling because acquiring a mechanical license can be much
easier. Finally, a Creative Commons License works alongside a copyright that
gives copyright owners the choice of which rights they wish to retain in their
works and which of those rights they wish to waive. With that said, Tomeworks will
not willingly release any music to the public with uncleared samples because of
the grave consequences of artists, producers and record labels as demonstrated
in recent history.
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