On Monday, we discussed a lawsuit filed by filmmaker Jennifer Nelson that seeks to have a court declare the song “Happy Birthday to You” to be in the public domain. That New York Times story noted that another filmmaker, Steve James, had to pay $5,000 to use the song in the 1994 documentary “Hoop Dreams,” in which it is sung at an 18th birthday party for one of the two high school students that film. “It was an important scene, there was some amazement that Arthur had made it to 18,” James told the Times in 2005. “Of course, we wanted that in.”
Individuals working in the entertainment industry need to be acutely aware of the various copyright infringement issues that can arise when using other artist’s songs—or even portions of songs. Last month, entertainment lawyer Mita Carriman authored an interesting article entitled “4 Music Law Myths That Indie Musicians Need To Unlearn” for the music industry website Hypebot. Carriman noted that there are several myths regarding music law, but the four most common ones she cited were:
- “Poor man’s copyright” does not protect the rights to your music — Carriman noted that this method in which artists uses email or registered mail to send themselves a copy of their work has never been a part of US copyright law. Indeed, there is no provision regarding any such type of protection and the “Poor man’s copyright” is not a substitute for registration.
- There is no “50 second,” “5 second,” “8 bar,” or “1 bar” rule — “When you sample any portion of someone’s music without proper authorization, it gives rise to a valid cause of action for copyright violation,” Carriman wrote, noting that the concept of “fair use” is a defense that is “used as a shield, not a sword to copyright infringement.”
- Distributing work containing unapproved samples for free is still copyright infringement — Carriman noted that a copyright gives its owner six exclusive rights, and artists reserve the right to enforce their rights if a person uses protected material without permission. As the US Copyright Office says, “Only the owner of copyright in a work has the right to prepare, or to authorize someone else to create, a new version of that work.”
- A license to record a cover song is not the same as a license to make and distribute a music video of the cover song — A cover license gives an individual the right to create, reproduce and distribute a certain amount of specified mechanical reproductions of music, but Carriman noted that an accompanying music video requires a mechanical license and synchronization license.
“There’s certainly a lot of gray area, which could lead a person to probably think that the law would be one way, when it isn’t,” Carriman wrote. Los Angeles business litigation lawyer Robert G. Klein helps clients with these sorts of intellectual property issues, and you can fill out the form on this page or you can contact our firm at [number] to have our Los Angeles copyright infringement lawyer review your case.
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