Summary of Copyright Law Basics
for Sports Mixes
An overview of Music Copyright as it relates to Performance Sports,
prepared by Golenbock, the law firm that represented Sony Music in the lawsuit against Cheerleading.
Copyright is a form of protection provided by law to authors of “original works of authorship” that are fixed in a “tangible medium of expression.” The primary purpose of copyright law is to afford authors protection for the creation of original works, that is, works where the author has expended independent effort to create the work.
Below is an overview of copyright, with links to each section, outlining how copyright relates to music and performance sports such as cheerleading, dancesport, gymnastics, figure skating, jump rope and more.
You can learn more about your country's copyright law by visiting the World Intellectual Property Office (WIPO).
Exclusive Rights in Copyrighted Works
Subject to certain exceptions, the owner of a copyright has the exclusive rights to do and to authorize any of the following:
(1) to reproduce the copyrighted work;
(2) to prepare derivative works based upon the copyrighted work;
(3) to distribute copies of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
(4) in the case of literary, musical, dramatic, and choreographic works (i.e sports performance), pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;
(5) in the case of literary, musical, dramatic, and choreographic works (i.e sports performance), pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and
(6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.
Copyright Protection in Musical Works
Copyright Law provides various forms of protection for both musical works (publishing rights) (including any accompanying words), and the sound recordings (master rights) which embody such works. Protection is afforded to original compositions, and to arrangements and new versions of existing works to which new, copyrightable material has been added. Musical compositions and sound recordings are protected as separate works under Copyright Law of most countries. Accordingly, when one wants to use a particular recording such as a Cover version of a protected composition (for example, to synchronize an audiovisual work to recorded music, or to re-mix a song or to make mash-ups), the necessary rights must be obtained from a variety of sources, which include both the publishing rights in the composition and the master rights in the recording.
Ownership of the Copyright
The copyright in a work initially vests in the author or authors of the work unless the work is a work made for hire. A work will only be considered a work made for hire under very specific circumstances, including:
(i) if the work was created by an employee in the ordinary course of his/her employment, in which case the employer is considered the original owner of the copyright or,
(ii) if the work:
(a) was commissioned by a third party and;
(b) falls into a category of works specifically identified in the country's Copyright Law (including a musical arrangement or as a contribution to a collective work) and there is a written agreement signed by both the creator and the party who commissioned the work that expressly states that the work is a work made for hire. This is particularly important to note when hiring a music producer to create a mix, especially if you are commissioning a ‘bespoke’ mix.
The author of a sound recording is often identified as the producer who captured and processed the sounds that appear in the final recording unless the sound recording is a work for hire.
It is not uncommon for songwriters and producers to assign the copyright they own in their compositions and recordings to music publishers and record labels respectively.
Duration of Copyright
For works created on or after January 1, 1978, the term of the copyright is the life of the author plus seventy (70) years after the author’s death. For works covered under the work made for hire doctrine, the duration of the copyright is 95 years from publication or 120 years from creation, whichever is shorter.
Copyright Infringement: Rights and Remedies
Anyone who violates any of the exclusive rights of copyright is an infringer. The legal or beneficial owner of an exclusive right under a copyright is entitled to institute an action for infringement of that particular right.
A copyright owner prevailing in an action for copyright infringement may:
(i) obtain injunctive relief;
(ii) have infringing copies impounded;
(iii) recover actual damages and additional profits from the infringer; or
(iv) recover statutory damages, as provided by Copyright Law in each Country. The court, in some countries may also award, in its sole discretion, costs of the action and reasonable attorneys’ fees.
There are various forms of copyright infringement:
(i) direct infringement
(ii) contributory infringement
(iii) vicarious infringement.
Liability for copyright infringement can be imposed not only on direct infringers, but also on certain parties who, while not directly engaged in the infringing activity, knowingly induce, cause or materially contribute to and/or benefit from, copyright infringement.
It is a defense to a claim of copyright infringement that the use of the copyrighted material was a “fair use.” To determine whether a use of a copyright is fair use, a court must engage in a very fact-specific analysis, and look to the use that is being made of the copyrighted work (i.e., is it being used for criticism, comment, news reporting, teaching, scholarship, research or a similar purpose). Use of even a small portion of a copyrighted work or composition can be considered infringing, depending upon a number of other factors, including the significance of that portion of the work relative to the whole. Accordingly, there should be no automatic assumption that infringement liability can be avoided through a claim of “Fair Use” (even if it is an educational institution or not-for-profit entity who is making the unauthorized use of the copyrighted music).
Music Performance License
In each country there are organizations that license and administer performance rights in copyrighted musical works (referred to as performing rights - the playing of unedited music in public) and reproduction rights of sound recordings (often referred to as mechanical rights - the copying of a recording). Examples of performing rights societies include ASCAP (US), BMI (US), SESAC (US), PRS (UK), PPL (UK), RE:SOUND (CA) and SOCAN (CA). These companies license public performances of their members’ musical works and issue licenses for the use of music in both physical and digital distribution formats. The license may be a blanket license, or an individually negotiated license (on a per work level). These licenses are obtained where music is performed or broadcast in a public place or transmitted to the public via, for example, radio, television. It only covers the playing of unedited music in a public place.
Licenses Are Required
To incorporate a musical composition or master recording into a work with other elements (such as a motion picture, television program, or other video product) requires an appropriate license from the rights’ owner.
The act of copying or adapting someone else’s copyrighted work can only be done with the consent or license of the copyright owner.
An adaptation of a work is also sometimes referred to as a derivative work. For a musical work, the adaptations/derivative works include the making of a new arrangement of the work or making a transcription of the work for new instruments or voices, as well as creating a new version of an existing track or song through editing, remixing, excerpting a portion of a work and adding it to another composition or recording, and combining two or more compositions. Only the copyright owner has the right to authorize such adaptations, reproductions and the making of derivative works.
Accordingly, in order to create a derivative work, permission from the copyright holder by way of a license is required in order to avoid copyright infringement claims. In the case of combining excerpts of different works, licenses would be required from the owners of both works for both the recording (master) and the publishing rights.
In order to perform, transmit, synchronize, or broadcast remixed and edited tracks to accompany your routine at a live or online event, and to create recordings of such performances incorporating musical works, a variety of permissions will be required from the copyright owners of the tracks being used, including the right to:
- create a derivative work/adaptation of the original track;
- copy the track onto different formats (i.e. mp3);
- to perform/play the edited/remixed track to the public (i.e. at live events);
- to perform/play the edited/remixed track in connection with a choreographed routine;
- to synchronize the edited/remixed track to visual media and create an audiovisual work (such as a video of a routine).
Using music in a pre-recorded mix that has not been appropriately cleared may result in a copyright infringement claim being made by the copyright owner(s) against the individual/entity who made the mix as well as the person who played or distributed it.
Additional Information Sources
You can learn more about organizations at the forefront of intellectual property and copyright here: