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Copyright or Copycat

Article from One Two Testing, February 1985

how it works

Adrian Legg goes legal

So what does happen when the creative struggle is over? The penetrating lyrics at last fit the sparkling melody, you've successfully taught it to the bass player and eliminated the guitarist's tendency to stick in Jenkins-ite chords.

How safe is your music, and who's looking after it for you? What is this mystery called copyright?

First, let's remove one legal myth — there is no magic number of notes above which copyright suddenly comes into existence. Forget the saloon-bar barristers who confidently tell you, "Yeah, you can copy anything as long as you don't use more than seven notes... two bars... five seconds." Whether or not a new piece is in breach of an existing copyright will hinge on what a judge considers to be a 'substantial part'. It could be a few bars, it could be more, but how significant is it to the whole? Each case has to be proved individually, in court, on its merits. If Beethoven were still around, he might well make a damn good case for back royalties from the government for the use of da-da-da-dum out of the fifth symphony as a wartime radio tuning signal. Still, we leap ahead of ourselves.

The world is a wicked place but fear not, governments have always had the interests of the artist close to their hearts, and we all now enjoy the protection of the Copyright Act 1956. An act which the chairman of the British Copyright Council, Denis De Freitas, has described as "badly drafted and often difficult to construe".

Copyright exists in a musical work as soon as it is created and banged down on manuscript, tape, disc or some other means of transmission, and belongs to the creator of the work, with some exceptions. For example, if you are employed by a publisher as a staff writer, then the copyright in what you make belongs to your employer unless your contract of employment specifically states otherwise.

To qualify for protection under the UK Act, the work must be original and have been made (usually) by a UK or Eire national, or a company formed in accordance with UK law. While it is not necessary in the UK (see addresses at end for USA), to do anything other than the initial creation and writing/taping of the work to establish your copyright, it makes sense to be able to demonstrate the existence of a particular piece at a particular time. The classic method is to seal up a copy with the creator's name and the date of completion, deposit it with a bank and obtain a dated receipt. Then at least if litigation breaks out, you can prove a time.

If it turns out you've written something identical to someone else's work, theoretically you may both be entitled to copyright. What's actually going to happen is that whoever had it out in public first is going to claim that the other copied it and should therefore cough up appropriate royalties. So the date you handed it over to the bank manager could be crucial.

Copyright in the UK lasts from the date of creation until the end of 50 years from the finish of the year in which the creator died. So, if you feel pretty rough around December 30th, hang on for a few days for the sake of your grandchildren. If you wrote the piece with a mate, then it's 50 years from the end of the year in which the last of you shuffles off to that great gig in the sky.

So, clearly, copyright is a form of property that you can bequeath along with your old doll's house or Meccano set. It is also a negotiable asset — you can do a deal for all of it, or bits of it.

If you can demonstrate that the piece is out in the world earning sufficient royalties to warrant collection, then you can apply to be elected to membership of the Performing Right Society Ltd. The PRS is an association of composers, authors (lyrics only, forget the novel), and publishers of music which exists to administer the performance aspect of its members' copyright.

This means that the PRS will license, on your behalf, any public performance, broadcast or cable diffusion of your piece. If it goes out on the Beeb, it will be logged, and your cut of the royalty that the Beeb pays to the PRS will duly turn up in a computer print-out at one of the periodic broadcasting royalty distributions. If the piece gets hammered out in pubs, then provided the forms are filled in properly, your bit will turn up in a general royalty distribution. Wherever and however music is performed, it should be licensed by the PRS, and if you have signed up, yours is covered as well.

The PRS has reciprocal arrangements with similar organisations throughout the world whereby it coughs up locally collected royalties due to their members, and they cough up locally collected royalties due to PRS members. So if your work of genius goes out on foreign radio, sooner or later you will receive the appropriate emolument. Likewise, if Helmut P Laagerschweiller's anachronistic, inarticulate and out of tune piece of appalling junk turns up on the Beeb, Helmut will eventually collect his thirty pieces of silver. Xenophobes note: reciprocity is good because foreign parts are bigger.

If you are a PRS member, you are required by the rules to register your work(s) with the PRS repertoire registry. Once upon a time, you had to do this as soon as it was written, but as the Society gradually reduced admission criteria so that less successful writers could join, it became inundated with piles of junk that didn't actually do anything except clog up the computer and overload staff, to the detriment of people whose work was actually doing something.

Nowadays you must register immediately the work does something public. So, be it murdered at Newcomers' Nite at the Y-Front and Ferret, or executed brilliantly to an enraptured QEH full house, fill in the form as soon as you can write legibly again. Playing it to granny does not constitute a public performance, neither does she require a PRS licence for her hearing aid.

It is remotely possible that a relatively sober A & R person can see the possibility of a quick buck in, or the artistic significance of, your music (product) to a particular generation (market), in which case, you enter into another area of copyright.

The Mechanical Copyright Protection Society exists as an agency to license mechanical reproductions of its members' work.

That is, if you are a member, and your piece is put on a record, tape, film or video, it is being mechanically reproduced, and you will authorise MCPS to collect the due fees on your behalf. This is entirely separate from the performance rights administered by PRS, and can produce another rather nice little computer print-out which will help keep you alive.

Let's take an example. You knock up an album with XYZ Records Ltd. For your performance as a musician you do one deal — either session fees or an agreed royalty on sales. You're doing some of your own stuff, and some of Fred Wagner's. Fred Wagner is alive and well, and a member of PRS and MCPS, as are you. You, being on the ball, let MCPS know that you are expecting some activity on your material, just in case XYZ, in their understandable excitement, overlook the necessity of applying to MCPS for a licence to use all the material. MCPS gives them the go-ahead and collects on the basis of the quantity pressed.

Come the next relevant MCPS distribution, you will get paid your share, and Fred will be paid his. So far so good. The record, meanwhile, has come out, and one of your tunes and one of Fred's get played on Radio 2. Come the next PRS broadcasting distribution, you and Fred will be paid. There will be distributions covering other areas and if it is appropriate, you and/or Fred will be paid.

So as a musician/writer, you are involved in three areas right away. Firstly, as a musician — your back-up here comes from the Musicians' Union. If you are not a member, then you are indubitably a prize twit and deserve to get swindled. Secondly, as a copyright owner negotiating a mechanical reproduction of your work (unless you are very heavy duty) you need MCPS. Thirdly, as a copyright owner whose work is being performed in public — you need PRS.

Once your piece is out on a record, then anyone else can record it without your permission, provided that they do the right thing with MCPS (if they are your agent) and cough up the appropriate mechanical royalties. PRS will take care of performance royalties so long as you are properly credited and the performances are properly logged. Broadcasting royalties are the most significant in this area. On BBC national radio, BBC TV, ITV stations and some bigger local radio stations, music performances are logged 100%. Most local radio station output is sampled, and overall royalties calculated from the pattern of radio play. Your effort may miss the sample on a local radio station, but you will qualify for an "unlogged performance allocation" which assumes an appropriate amount of local play if you have achieved a logged sample somewhere. That is, if your name crops up in the broadcasting logging, then an amount of unlogged performance will be paid. If you show up nowhere, then your stuff is assumed to be inactive in this area. It is simply a question of balancing admin costs against revenue. For example — one of my pieces clocked 80p on Radio London. The same piece on network BBC TV clocked £158.40 — which was more than the artist fee and expenses put together.

Until you put your piece out in some form, you have the right to refuse permission for anyone else to do it. Once it's out, someone else could rush out a snappier version and beat you up the charts. The consolation is that what you lose in artist's royalties you'll make up in writer royalties. These royalties must be paid, though there is a grey area.

As far as live performance is concerned, for every gig you should ask if you should fill in a PRS form called a Declaration of Live Music Performed. This will detail the venue — they must all be licensed by the PRS — the titles and copyright owners, and be signed by the band leader or soloist and the owner or manager of the venue. This one is badly neglected by musicians and venue operators alike — stupidly, because peoples' livelihoods are at stake.

You may, of course, assign your copyright to a publisher, who will look after the collection of royalties. In this case, you need not always be in the PRS or the MCPS as, when possible, the publisher will collect your share from them and pay it to you. Do note that some countries will not pay the writer's share of a royalty where the writer is not a PRS member. PRS advises its publisher members to advise their writer clients that they should join PRS.

If you are in the PRS and have a publisher, then the PRS will have to see the contract, as your assignation of rights to the publisher will be subject to the assignation of rights to the PRS. The PRS will divide the royalties it receives according to the agreement expressed in the publishing contract and pay them to you both separately. MCPS will not do this, but will pay it all to the publisher, who must then pay you. Under PRS rules you may not receive less than half of the performance royalties, and most publishing contracts will aim to push you down to this. The PRS "norm" is two thirds to the writer(s) and one third to the publisher. Sheet music royalties are normally ten per cent of the cover price.

Whether or not you need a publisher depends on your activities. If you are a performer anyway, and are going to perform your own stuff, then membership of the PRS and MCPS will cover your needs quite adequately. If you are not a performer, then perhaps a publisher may be able to place your material more effectively than you.

If you can assume a reasonable level of activity through your own efforts, and assuming that a publisher will push you down to your legal minimum of 50 per cent, then you need to be convinced that the publisher is going to at least treble your revenue for the deal to be worthwhile.

But whatever, you will need advice — here are the addresses:

The British Copyright Council, (Contact Details).

This one is your first move. Send them £1 and ask for "A Brief Guide To Copyright in the UK" by Denis De Freitas.

The Performing Right Society Ltd. Address as the British Copyright Council.

The Mechanical Copyright Protection Society, (Contact Details).

The Musicians' Union National Office, (Contact Details). Check the phone book for local branches.

Copyright Office, (Contact Details).

Definitely write to these people — I quote one of their leaflets: "If a work is published in the USA without the statutory copyright notice, copyright is lost and cannot be restored. The three elements of the notice must be legible and appear together, e.g. © John Doe 1973."

You have been warned.

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One Two Testing - Feb 1985

Feature by Adrian Legg

Previous article in this issue:

> When Is A Tape Recorder

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