Copyright is a form of intellectual property law for content creators of literary, dramatic, musical, artistic works, sound recordings, broadcasts, films and typographical arrangement of published editions, to give them the right to control the ways in which their works may be used.
Take a deeper dive into copyright below, as it relates to music used in performance sports.
International Copyright
Copyright Law exists in most countries around the world. There are almost 180 countries that have signed the Berne Convention treaty, administered by the World Intellectual Property Organization (WIPO). This treaty sets a minimum set of standards for the protection of the rights of the creators of copyrighted works around the world. Many countries have also signed the Rome Convention treaty which sets the minimum sets of standards for protection of Performers and Producers.
In addition, there have been efforts to unify copyright law in Europe and other regions. There are small differences in national copyright laws, however.
An outline of some of these treaties are below:
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The oldest and most important treaty
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Signed in 1886 (but has been revised many times since)
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Signed by nearly 180 countries
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Establishes the minimum standards for the protection of rights of creators of copyrighted works including:
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Types of works protected
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Duration of protection
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Scope of exceptions
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Limitations
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Principles such as “national treatment” (works originating in one signatory country are given the same protection in the other signatory countries as each grants to works of its own nationals)
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Principles such as “automatic protection” (copyright inheres automatically in a qualifying work upon its fixation in a tangible medium and without any required prior formality).
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Signed in 1996
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Adds that computer programs and databases are protected by copyright
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Recognizes that the transmission of works Online and on similar networks is an exclusive right within the scope of copyright, originally held by the creator.
The Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS)
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Signed in 1996
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Administered by the World Trade Organization
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Includes general principles related to the enforcement of IP rights, requiring members to make available effective, balanced and fair procedures providing necessary remedies whilst also guarding against misuse of IP and the creation of obstacles to legitimate trade.
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Makes it mandatory for national laws to make the effective enforcement of IP rights possible, and describes in detail how this should be addressed.
Rome Convention
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Signed in 1961
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Establishes the minimum standards for protection of Performers and Producers including:
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Types of works protected
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Duration of protection
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Scope of exceptions
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Limitations
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Administered by WIPO and jointly with the International Labour Organization (ILO) and the United Nations Educational, Scientific and Cultural Organization (UNESCO).
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Open to States party to the Berne Convention for the Protection of Literary and Artistic Works (1886) or to the Universal Copyright Convention.
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States may make reservations with regard to the application of certain provisions.
When Does Copyright Start?
Copyright is an “automatic protection” and arises when a qualifying work is created by an individual or company. To qualify, a work should be regarded as original, and exhibit a degree of labour, skill or judgement but as with all copyright it is only the expression of an idea, and not the idea itself, that is protected by copyright law. There is also protection against copycat works (passing off) of more established works but this is different to copyright.
Neither publication, registration, nor other action is required to secure a copyright, although in some countries use of a copyright notice is recommended, and in a few countries (including the United States) registration of domestic works is required in order to sue for infringement.
What Is Protected By Copyright?
The detailed list of categories of works that are protected by copyright – and the specific definition and scope of each of them – may slightly vary from country to country, but it generally includes:
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Literary Works
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Dramatic Works
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Musical Works
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Artistic Works
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Typographical Arrangement of published editions
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Sound Recordings
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Film
From this point we are going to just talk about Copyright as to how it relates to literary works and sound recordings, in other words, music.
Who Owns A Copyright?
Usually, an individual or group of individuals who authored the work will exclusively own the work however, if a work is produced as part of employment then the first owner will usually be the company that is the employer of the individual who created the work.
Freelance or commissioned work will usually belong to the author of the work, unless there is an agreement to the contrary (e.g. in a contract for service).
Rights cannot be claimed for any part of a work which is a copy taken from a previous work. For example, in a piece of music featuring samples from a previous work, the copyright of the samples would still remain with the original author.
Only the owner, or their exclusive licensee, can bring proceedings in the courts.
In each piece of recorded music, there are actually two aspects to copyright:
i) the actual recorded performance of the song, and
ii) the words, melody etc. created by the writers of the song.
Therefore each song is owned by two sets of copyright owners:
Copyright may be transferred or sold by the copyright owner to another party.
Artists and writers often exclusively assign their rights to 3rd parties such as record labels (master side) and music publishers (publishing side).
In order to license a piece of music, permission is required from ALL owners of a song so the record label or master owner of the song and each and every writer who owns a piece of the publishing.
Publishing rights are typically more complicated as there are usually multiple writers on a song.
On average, there are 9 writers on each hit pop song and each of these writers are typically represented by a different publishing company (music publishers).
Each writer will own a certain percentage of the song depending on their contribution to the writing process.
In order to license music you need a license from EVERY rightsholder.
As an example, consider the ownership of Beyoncé's Run The World (Girls)*:
MASTER RIGHTS (Recording)
The artist(s) who record each version of that song (whether a worldwide hit or an anonymous cover version) own rights in the sound recording of their version.
These are called ‘master rights’ (from the days when master versions were used to mass reproduce physical copies on vinyl, cassette tape or CD).
PUBLISHING RIGHTS (Music Publishing)
The people who wrote the song control the musical composition of the song: Lyrics, melody, etc.
These are called ‘publishing rights’ (from the days when publishing physical sheet music was very popular).
Normally several writers have a % share in each song which can range from less than 1% to 100%.
BOTH Master AND Publishing sides.
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There are 7 deals, 1 Master and 6 Publishing, needed to get the rights to Run The World (Girls).
Even if just one of these deals is not in place, you do NOT have the right to use the track, regardless of how much (or little) of the track you intend to use.
*These splits are just used as an example and may not be correct as of the date you read this.
Duration of Copyright
The duration of copyright may vary from country to country according to the type of work (and the particular right in question). The Berne Convention (covering literary and musical works) sets a minimum duration of a copyright in a literary work equal to the life of the author plus 50 years but in most cases and countries today, the general rule is that copyright in literary, dramatic, musical or artistic works lasts for the life of the author and then until 31 December of the year 70 years after his or her death (usually referred to as “life plus 70”).
Due to changes in copyright law over time, specific works may have differences in the duration of copyright.
For sound recordings, the duration of copyright tends to exist for 50 years from the end of the calendar year in which the work was created, or, if the work is released within that time: 70 years from the end of the calendar year in which the work was first released. Again, this may change slightly from country to country.
Public Domain
The public domain refers to works that are no longer protected by copyright (that is, where the copyright has expired).
Thus, differences in how national copyright laws define the duration of copyright result in different definitions of the public domain on a country-by-country basis.
In Europe, the European Connect project has developed a helpful Public Domain Calculation tool but there is no reliable source of information such as a database of works that are in the public domain.
Types of Rights
Most national copyright laws recognize different types of rights within copyright that can be exploited by the owner of that copyright.
The author of copyright has the right to use, authorize the use of or prohibit the use of, a work, and to set the conditions for its use. Different specific uses (or “acts of exploitation”) of a work can be treated separately, meaning that the rightsholder can deal with each right (including using, transferring, licensing or selling the right) on an individual type-of-use basis.
These rights typically include:
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The right of reproduction (for instance, making copies by digital or analogue means),
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The right of distribution by way of tangible copies (for example, selling, renting or lending of copies both physical and digital),
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The right of communication to the public (including public performance, public display and dissemination over digital networks like the Internet), and
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The right of transformation (including the adaptation or translation of a work).
In addition there are Moral rights that typically apply to copyright.
Moral rights refer to the idea that a copyrighted work is an expression of the personality and humanity of its author or creator.
They include:
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The right to be identified as the author of a work (credited when the work is used)
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The right of integrity (the right to forbid alteration, mutilation or distortion of the work or derogatory treatment), and
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The right of first divulgation (making public) of the work.
Moral rights cannot always be transferred by the creator to a third party, and some of them do not expire in certain countries.
Countries in the Anglo-American tradition, including the United Kingdom, the United States, Canada, Australia and New Zealand, tend to minimize the existence of moral rights in favor of an emphasis on economic rights in copyright.
It is an offence to perform any of the above bullet-pointed acts without the consent of each applicable copyright owner.
Exceptions and Limitations
There are some exceptions and limitations that can apply to copyright. These special cases are defined by law where works can be used without the authorization of the rightsholder.
Generally, exceptions and limitations to copyright are subject to a three-step test initially set out in the Berne Convention and repeated in a number of other international agreements. Briefly stated, the Berne Convention provides that an exception or limitation to copyright is permissible only if
(1) it covers a special case
(2) it does not conflict with the normal exploitation of the work
(3) it does not unreasonably prejudice the legitimate interests of the author.
Exceptions and limitations within that standard vary substantially from country to country in number and scope, who is entitled to benefit from them, and whether or not they include an obligation to compensate the rightsholders whose rights are so limited.
For clarity, music being used for performance sports routines are not an exception to copyright and do require authorisation (a license) from the copyright holder.
Fair Use
Most countries specifically identify the exceptions and limitations to copyright that they have created. In the United Kingdom, the United States and a few other countries, the principle of “fair dealing” covers a substantial scope of uses where prior permission is not needed.
The criteria for what is considered to be fair dealing are listed in the law in each of those countries, without mentioning every specific possible use. In the United States (and a few other countries), the concept of “fair use” covers certain uses that, on balance, are deemed not to impinge on the rights of the copyright holder sufficiently, and/or are deemed to serve a sufficiently important public-policy goal, that they are permitted without the authorization of the copyright holder. The factors assessed by a court to determine fair use are set forth in each country’s statute and case law.
The uses generally include:
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Private and research study purposes.
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Creating copies or lending for educational purposes.
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Criticism and news reporting.
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Incidental inclusion.
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Copies and lending by librarians.
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Caricature, parody or pastiche.
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Acts for the purposes of royal commissions, statutory enquiries, judicial proceedings and parliamentary purposes.
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Recording of broadcasts for the purposes of listening to or viewing at a more convenient time, this is known as time shifting.
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Producing a backup copy for personal use of a computer program.
For clarity, music used for performance sports does NOT fall under fair use and a legal precedent has already been established due to a previous lawsuit.
Obtaining Permission to Use a Copyrighted Work
Copyright law dictates that purchasing a copy of a work, such as a piece of music does not give the buyer the right to make any copyright-sensitive use of that work. The work embodied in the copy may not be reproduced, publicly performed or otherwise used within the scope of the copyright law without licensing.
In the case where an end user wishes to use a copyrighted work for any of the following:
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The right of reproduction (for instance, making copies by digital or analogue means),
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The right of distribution by way of tangible copies (for example, selling, renting or lending of copies),
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The right of communication to the public (including public performance, public display and dissemination over digital networks like the Internet), and
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The right of transformation (including the adaptation or translation of a text work).
permission needs to be obtained either:
1) Directly from the rightsholder
Which would follow the below process.
THE TRADITIONAL MUSIC LICENSING PROCESS
This is time consuming and often an expensive process.
2) From a third party organization that has been authorized by the rightsholder to grant the permission on his or her behalf.
For example, ClicknClear have deals directly with record labels and publishers to clear the unique set of rights required by performance sports so you can instantly license music with the rights you need.
Copyright Infringement
Copyright infringement is the use of a copyrighted work without the permission of the copyright holder. ‘No knowledge’ or ‘benign intent’ are NOT valid excuses for infringing on copyright and so the infringing party can be sued.
In the US, a fine of up to $150,000 applies to each song that is infringed on in each infringement. The legal repercussions of copyright infringement vary in each country.
Collective Licensing
In many countries, copyright collecting societies (also known as “collective management organizations” (CMOs) or “Performing Rights Organisations” (PROs)) license large-scale use of works on behalf of a large number of rightsholders.
Performing rights are confusingly named. They typically only cover a small number of rights to ‘perform’ the music (meaning, playing the music in a venue, online or radio). The rights provided by CMOs’/PRO’s do NOT give sports teams the right to edit and adapt music into a mix or sync that music with video footage of a routine.
Collecting societies exist in most countries around the world and are typically required for both the master and publishing sides. A performing rights license is required anywhere you ‘play’ the music in public, no matter how small a portion of the song you use.
Additional Information Sources
You can learn more about organizations at the forefront of intellectual property and copyright here: