Copyright is a very complex and specialised area of law, so it comes as no surprise that it causes a lot of confusion. As an artist whether you are an author, composer, producer or performer, having a basic understanding of copyright law is imperative. Copyright is what gives you the legal authority to exercise control over your work and enforce your ownership. Here are some basic pointers.
1. Registering your copyright
In the UK there is no requirement to register your works at the Intellectual Property Office in order for your work to be copyrighted. As the creator of an original work you are automatically the proprietor of the copyright provided you have not assigned or licensed ownership to a third party.
However, if for instance your copyright is infringed the burden of proof will be on the creator of that work to prove that they are indeed the copyright owner. There are a few methods used by creatives to insure that their work is protected e.g. a song writer may send the work to themselves to verify the date and time of creation.
Some other ways to do this are:
- Marking your work - we often see the copyright logo or wording which suggest that a particular work is copyright protected. Though marking is not a requirement under the law, it puts who ever is viewing your work on notice and possibly deters infringement.
- Register your copyright - in the event that you require evidence to prove ownership, date and the content you created, your proof of registration will support this. To find out more about registering copyright work click here.
2. Performers rights
As we have explained in previous posts, it is the exclusive right of a copyright owner to use their work in public, this also means that you are not allowed to just decide to perform someone else's song without obtaining the relevant permissions i.e. the writer , composer and producer. So yes, technically when you upload your cover of Beyonce's 'Drunk in Love' that is a copyright infringement.
However, as a performer you also have rights under the Copyrights, Designs and Patents Act which give you the right to control how your performances are exploited. Most artists who are signed to a label, transfer the control of their performance rights to the record company. There is a legal definition of what constitutes a performance, to give a basic breakdown; the performance does not require an audience to be present but must be a live performance e.g. recording a song in the studio.
Performer's rights are not the same thing as copyrights or moral rights but they give you as a performer the right to control the exploitation of your performance, meaning that any third party would have to obtain your consent if:
- A recording or transmission of your performance is made;
- A recording of your performance is to be shown or played in public;
- A copy of your recorded performance is made, directly or indirectly;
- A person imports, possesses or deals with an illicit recording of your performance
- Your performance is broadcasted or used in a cable programme service
3. Fair Use
Fair use , also referred to as 'fair dealing' is a copyright law doctrine which creates certain exceptions under which the permission of the copyright owner does not need to be obtained by a third party wanting to use their work.
The law provides exceptions for all types of copyright works: literary, dramatic or musical works only for the purpose of research, parody, teaching, review and criticism, reporting the news or for judicial proceedings. Essentially this means that fair use only applies for the use of copyrights works for NON-comercial purposes and personal use only. Additionally, there are strict guidelines as to how this must be applied.
Though some copyright owners have passed control over their copyrights to third parties e.g. a record label , the fair use exemptions can not be overridden by any such contractual agreement.
There are some misconceptions surrounding fair dealing such as recording 10 seconds of a song or copy 10% of literary work two make it fall within the scope of the fair use exceptions. Of course this is inaccurate, fair use will only apply if the use of such copyrighted work falls within the scope of the exemptions. It is also widely believed that if work is in the public domain e.g. on the internet, it is free to be used without consent, this is fundamentally wrong as under copyright law work is only in 'public domain' upon expiration of the copyright ( Copyright lasts for the life time of the author + 70 years)
It should also be added that in litigation facts are considered on a trail-by-trial basis, the court will consider various things such as:
- The purpose of the dealing (Is it commercial or research / educational?);
- The character of the dealing (What was done with the work? Was it an isolated use or an ongoing, repetitive use? How widely was it distributed?);
- The amount of the dealing (How much was copied?).
As well as various other factors to determine whether the fair dealing exemptions were used lawfully. Our advise is that to be on the safe side just remember: If it's not yours ask!.
4. Copyright and Music
There are some real complexities here which we will go through in a later post, but we will go over some basics to know and take in to account as a musician.
There are three different copyrights which arise in a Song - the composition and lyrics (also referred to as the underlying work) and the sound recording (the master).
- Covering songs: Remember that when you're covering a song you are still under an obligation to obtain permission from the relevant copyright owners. Assuming that you have the relevant permission to cover the song, you will own the sound recording while the rights to the underlying works remain with the writer of the lyrics and composer. Additionally, f you intend to publish the performance you will need a mechanical licence. (see previous post)
- Altering and sampling: Changing a song by speeding it up, auto-tuning it or sampling e.g. 1 bar or just 10 seconds of the song, does not circumvent infringement, even if you are not making money from it. The law very explicitly states that only the copyright holder has the legal authority to share, make derivatives or distribute their work. For further guidance on sampling see previous post.
5. Not everything is or can be Copyright protected
Not everything you see is copyright protected, copyright only protects works of "creative authorship that are fixed into a tangible medium of expression". To put that in plain English that means text works, photographs, artwork, movies and music. Things such as a clothing design, generally, will not qualify for copyright protection because fashion is deemed to be utilitarian or a 'useful article' i.e. we wear clothes for practical reasons, it is not original. However, particular elements of fashion such as a design/patterns printed on fabric may be copyrightable.
Most relevant to musicians perhaps is the fact that your name/ brand name or band name are NOT protected by copyright. To have either a name or idea protected you would need to consult very different areas of intellectual property law, namely Trademark or Patent Law.
To help you understand more about Trademarks keep an eye out on the YMB blog as we will be releasing a video blog on Trademarks soon.
