Consider this hypothetical:
Your band, "Junkyard Dogma" has just recorded a rock opera. In addition to original music, your record also contains portions of others' recorded music within some of the songs (i.e. "samples"), as well as sound effects, a re-recording of your bandmates favorite instrumental version of "Back Door Man" over which the singer does a rap, and a sound bite of a Richard Nixon speech.
Now Junkyard Dogma has been offered a recording contract from Think Tank Records (who evidently know a commercial product when they hear it). In this contract is language similar to the following:
"Artist represents and warrants that Artist has the full right, power and authority to enter into and fully perform this agreement and to grant all of the rights granted herein, and that the consent of no other person, firm or corporation is required to grant such rights and that Record Company's use of the Master(s) as contemplated hereunder will not infringe the rights of any person, firm or corporation."
You have not contacted anybody about any of the outside materials used in your record. Are you breaching your representations and warranties given to the Record Company?
Short answer: YES
Each of the materials included in the song is capable of copyright protection. Accordingly, you would have to get the consent of all the owners of each of the materials embodied into the recording (called "copyright clearances").
Not doing so will make you liable to each of the copyright owners for copyright infringement; it would make you liable to the Record Company for breaching your agreement, as well.
1. Samples
There are 2 consents required in order to use a sample of another's recorded songs:
- the owner of the recording used (usually a record company) and
- the owner of the composition recorded (usually a music publishing company).
a. Owner of the Recording
You will have to get the permission of the owner of the sound recording copyrights used in your record.
To do this, you will need to know the title of the recording, the name of the artist, and hopefully the name of the album and its record number.
Contact the record label which released the source recording which you sampled - they may not be the owner of the rights in the recording, but they should be able to direct you to where you need to go.
Or, do your own research on All Music Guide or the like, as record companies are not always the most responsive institutions in the world (especially when by answering you, they will be directing income to their competitors).
The sooner you get to the correct company, the closer you are to obtaining your clearance - that is, if indeed it can be cleared: copyright owners can always say "No!"
The rates vary, but it will usually involve payment of a lump sum, usually before the record comes out, anywhere from a couple hundred to a few thousand dollars. This can be a flat fee, or paid on a roll-over basis (i.e., paid again and again, each time the record reaches a certain sales plateau), or it may be expressed as an advance against a royalty (such royalty anywhere in the range of less than a penny to 5 or 6 cents.
b. Owner of the Composition
You will also have to obtain the permission of the copyright owner of the song (or, "composition", i.e., the words and music) because it is this source material which is being embodied in the recording.
Identifying the owner can be a bit more problematic, as songwriting catalogs seem to change hands more frequently. BMI, ASCAP and The Harry Fox Agency can help you track down the right party (and, in some instances, the latter may be able to issue the mechanical licenses you need).
The rates are approximately the same as for the recording; however, in addition to the money, the publishing company may also want to own a percentage of your new composition (under the theory that it is not really a completely new work, but is an addition to or an adaptation of an existing work resulting in a derivative of the original).
2. Sound Effects
Sound effects, either manufactured or recordings of natural sounds, are all capable of achieving copyright protection: it is the recording itself rather than the source material which is subject to copyright protection.
Thus, only one consent is required -- from the owner, usually a record company or sound lab. Contact the company for its licensing terms.
Sound effects may be licensed on a per use basis, just as samples are licensed from the record companies, or they may be licensed in connection with the purchase of the CDs or downloads, or whatever they're recorded on; purchasing an entire sound effects library can run into tens of thousands of dollars.
3. Re-recording of "Back Door Man"
"Back Door Man," written by Willie Dixon, is certainly a copyrighted song. Therefore, the consent of the copyright owner of the song must be obtained by Junkyard Dogma to record the song anew.
This differs from the clearance depicted in Paragraph 1(b) above, however, in that in this instance the copyright proprietor cannot tell you "No."
Title 17, section 115 of the U.S. Code allows a band the right to record their own version of a song previously released commercially in a phonorecord.
In other words, a band can acquire a compulsory mechanical license - the copyright proprietor must license it at a statutorily designated royalty rate, currently 9.1 cents per song until Dec. 31, 2007 (which usually means you can negotiate your royalty to as low as 75% of the statutory rate).
That is the case for simply re-recording the song; however, the rap over the top would make the work a derivative work, and the copyright proprietor is likely to desire an ownership interest in the new composition too, or can say "No."
Compare this situation, though, with one whereby Junkyard Dogma simply recorded a generic I-IV-V 12-bar blues progression as the music bed for the rap: the band would not need the consent of anyone to record this as chord progressions in of themselves are not sufficient to achieve copyright protection (meaning, nobody has a monopoly over their use so anyone can write songs using them).
4. Richard Nixon Sound Bite
There are several clearances involved in the use of a soundbite:
a. Source Material
First, a written speech is source material, like a composition, and its author would have to grant permission.
Like all copyright clearances, this may take some detective work to ascertain who owns the rights. If this were a "CSI: MIami" soundbite, one would first look to the production or distribution entity for these rights; if it were a poet reading his works, one might look to the poet's book publishing company.
(In this case, there is the argument that the speech is in the public domain, in the theory that it was authored by the federal government under the work-for-hire doctrine and is therefore owned by the public).
b. Recording of the Speech
Just as in the cases of recorded music and sound effects, the copyright holder of the master sound recording of the speech would also need to give consent for your use.
(In this case, this also may be in the public domain. The Library of Congress is an excellent source for public domain material).
c. Nixon's Voice
So who owns Nixon's voice, you want to know?
This is not a copyright issue, but you may additionally be required to get permission for using a person's personal attribute, like his name or likeness, or in some instances, his voice.
These are rights of privacy and publicity. A private person has the right of privacy, a public (i.e., famous) person has a diminished right of privacy, but an enhanced right of publicity. A dead person doesn't have any right of privacy at all, but there may be a right of publicity continuing to exist in the deceased's image or other attribute. All of this varies from state to state.
The right to use a band's name and likeness, or a speaker's voice, will often be included in the clearance received from the record company (vis-a-vis the speaker's contractual relationship with the copyright holder of the sound recording; however, absent this contract provision, one would have to obtain this clearance, too).
Obviously, the consensus is that Nixon is dead (although I like to think he's holed away somewhere with Elvis and Jim Morrison). The Supreme Court has not ruled on the inheritability of the rights of publicity, especially in relation to a person's right to free speech (which Junkyard Dogma would vehemently espouse their use to be).
Many states, however, have statutes which provide that the right of publicity is indeed passed on to the deceased's heirs or other successor-in-interest much as any other property righy.
5. Consequences
So, Think Tank is generously going to give you $1,000.00 as an advance against the monies you will earn under the contract with them; however, you check with a music attorney who informs you that the clearances could cost you about $10,000.00 up front. What to do?
Certainly, it is your business decision as to how diligent and thorough you are in obtaining clearances. But, it is definitely advisable to clear all copyrighted elements, or don't use them at all.
Look at it as insurance. The premium hurts a bit, but nothing as compared as how it feels to get sued. The courts do not look favorably on copyright infringement - it is, of course, stealing. The money damages are high, and can include profits you make on your product; moreover, the infringed party can force you to stop selling your product and recall everything already released to the market.
by Jonathon Earp, Esq.
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