MUSIC LAW NEWSLETTER - Copyright Basics
26th February 2007

Copyright Basics
 
Introduction
In the previous issue of our Music Newsletter we looked at the issue of licensing music and the potentially huge benefits if you can retain control of your songs. In this column we are going to be looking at the related topic of Copyright.
 
Copyright
Copyright is probably the most important single legal concept when it comes to the music industry. If you understand how copyright works you will know how you can protect your work and also get the most commercial value from it.
Copyright can be described simply as the right given to the creators of certain kinds of works to control who copies and reproduces such works. Most importantly for musicians, this protection extends to ‘musical works’ being the music of a song, ‘literary works’ which includes song lyrics and ‘sound recordings’ being the physical recording of an actual song.

Duration
Copyright does not last forever. At the moment under New Zealand law the duration of copyright is generally the life of the creator plus 50 years. One exception to this is that copyright protection in sound recordings only lasts for 50 years once the sound recording is made available to the public. Some countries provide for as much as a 70 year copyright protection period for sound recordings and the United States in fact provides for more. Indeed since 1998 when America extended copyright protection in sound recordings to 95 years there have been more than a few instances of some of the original rock and rollers still alive and earning in other parts of the world who have been up in arms, seeking an extension to match the 95 year term adopted in the States.
 
Creation
Copyright automatically arises when music, song lyrics or a sound recording are created. You do not have to complete any form of registration or filing to get copyright. However, song lyrics and music must be recorded in some tangible form, such as writing, before copyright in them will actually arise. So, if you have a great tune running through your head, write it down if you want to ensure you can claim copyright protection in respect of it.
 
Originality
There are some other requirements that need to be satisfied before copyright will arise, perhaps the most important being that the work in question is original. The issue of what exactly is ‘original’, has been the subject of much debate in courts around the world, in some very high profile copyright infringement cases. Essentially, for something to be original, it can’t be copied in whole or in part, from anywhere else. If some link can be shown between an existing copyright work and something that you are trying to claim as an original new copyright work, then you may be in for problems.
 
Ownership
In terms of copyright ownership in music the basic rule is that the owner of a copyrightable work is the person who creates it. One exception to this is that the person who arranges for the making of a sound recording (generally regarded as the person who initially pays for that) will be the owner of the copyright in the sound recording. This aspect of copyright law explains why record companies generally own the master recordings of their artists.
 
Exclusivity
In New Zealand the owner of copyright in a work has the exclusive right to do, or to allow others to do (such as by granting licences), certain actions in respect of their copyrighted work. This includes the right to copy the work, the right to sell copies of the work, the right to perform the work in public and the right to broadcast the work. This is really the key point as to why Copyright is such a powerful tool to help you both protect and make money out of your work. On the protection front, copyright infringement is also viewed very seriously under copyright law and the remedies available include court orders to make people stop their illegal acts, substantial fines, and even jail time for more serious offences.
 
Moral Rights
Another important aspect of copyright law in New Zealand is what is known as ‘Moral Rights’. In New Zealand the creators of music and song lyrics, but not sound recordings, have moral rights. Moral rights comprise three main aspects. Firstly, you have the right to be acknowledged as the creator of your work whenever copies of it are sold to the public or included on a film soundtrack. An important point to note is that you must actually request this of the person who may be making and selling CDs of your music, or has included your music in the soundtrack to their film, in order for them to be obliged to do so.

Secondly, someone can’t claim you are the writer of a song or song lyrics when you are not. Thirdly, you have the right not to have your song or song lyrics subjected to derogatory treatment. Although what constitutes derogatory treatment is not always easy to define, a bad review of your music in a magazine won’t qualify. What this third moral right is essentially aimed at preventing is someone using or changing your work in such a way that your reputation is affected.
The duration of moral rights is for the full period of the copyright in your music or song lyrics, however with a slightly shorter period of protection in respect of the right not to be falsely described as the creator of a work.

Conclusion
So there you have it – a summary of some of the key aspects of copyright law as they apply to those of us operating in the music industry. Copyright is however a very complex area and not wanting to bore you to death, there are some technical details I haven’t tried to explain here. Hopefully this article will give you an idea of what copyright is all about and get you thinking about how it relates to the kind of activities you are involved in.
 
Next Issue…
In the next issue of our Music Newsletter we’ll be building on some of these copyright basics, by looking at more practical examples of how copyright operates in practice, including copyright and song ownership issues when you write songs in a band or with someone else.
 
Questions?
In the mean time, if you have any queries or questions in respect of the above please don’t hesitate to contact me at david@mclaughlinlaw.co.nz or on 021 630 201 or 09 363 2738.
 
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Disclaimer: This article is intended to provide a general outline of the law on the subject matter. Further professional advice should be sought before any action is taken in relation to the matters described in the article.
 
This article written by David McLaughlin of McLaughlin Law recently appeared in New Zealand Musician Magazine and has been reproduced with the kind permission of New Zealand Musician Magazine.
 
 
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IMPORTANT UPCOMING APRA DATES
 
2007 DUE DATES
28 February: Professional Development Award applications due
28 February: Ambient Music Reporting Forms
28 February: Music On Hold Reporting Forms
UPCOMING APRA MEMBER EVENTS
 March: Celebrate Pasifika seminar - Auckland
March:  APRA/NZMIC Stage – Pasifika Festival - Auckland
April:  connect@APRA (new member meetings) – locations tbc