Walter F. McDonough is the General Counsel and one of the founders of the Future of Music Coalition and a recording artist representative board member of SoundExchange. He has written for several publications, including Performer magazine, and he has been interviewed by National Public Radio‚s "All Things Considered" and "Eye on the Media", the Washington Post, the Industry Standard, Webnoize, Music Business International, CMJ, the Tennessean, and the Boston Globe. Mr. McDonough is an entertainment, Internet and intellectual property attorney in Boston. He is a former member of the Boston Bar Association‚s Intellectual Property Steering Committee, an adjunct faculty member of Suffolk University Law School and a visiting professor at University College at Northeastern University.

I. Some historical information.

Copyright law finds its roots in the Renaissance. The invention of the printing press in the sixteenth century, like Napster and peer-to-peer (P2P) file-sharing in our own time, was a very disruptive technology. It led to a massive increase in literacy throughout Europe and to a breakdown of the controls that government and the church had over society. Initially, attempts were made by the Crown to regulate the number of books that were printed by giving monopolies to various politically connected people. One group of people had a monopoly over the Bible. Another group had a monopoly over textbooks. Yet another group had a monopoly over the works of Shakespeare.

During the period from about 1690 to 1710 the first copyright law, the Statute of Anne, was established. Named for England's Queen Anne, it was very elemental and dealt with books. Basically, it granted the right to make copies and it introduced the question of how long this right would last. Originally set at fourteen years in duration, it was later extended to twenty-eight years. The Statute also considered penalties. For instance, if a person illegally copied a book and if the author was able to track the person down, that person was charged a pence, the author could take possession of the copied materials and he could destroy the copies.

The first corporate law enacted in the United States was enacted in Massachusetts and written by John Adams. In 1790, after the Revolutionary War, the United States enacted its first copyright law. It was similar to the Statute of Anne in that it provided protection for literary works. However, it went further by also protecting maps and charts. This was significant because of the value of maps and charts to a society that could look west and see a lot of vacant property. Adams and James Madison both were fascinated by copyright law. Thomas Jefferson, conversely, was a major opponent of copyright law believing that copyrights were, effectively, monopolies. Since the debate was held while Jefferson was in Paris, during his tenure as Ambassador to France, his opposition had little impact on the outcome.

Since 1790 there have been two major additions to copyright law; one in 1909 and one in 1977. In these revisions, copyright subject matter was expanded to include musical works, namely songs. Also photographs, plays and dramatic works. Then, in the last 30 or 40 years, sound recordings and architectural works.

II. Copyright law today.

Copyright law at one time was a backwater, one of the most neglected areas of the law. Now it's in the news almost every day. The Monday New York Times has a 'Business Industries' section which usually has both a patent law and a copyright law column.

Under copyright law, the most fundamental right is the right to copy. Other rights are 1) the right to make derivative works, 2) the right to distribute works, 3) the right to display (like taking frames from 'Finding Nemo' and making tee-shirts), 4) rights to internet and satellite distribution (in the last 10 years) and, most importantly, 5) the right to public performance. Information about these laws can be obtained from the US copyright office at its website: www.copyright.gov. This material is intended to be downloaded. It's free and deliberately written for non-attorneys. It is as easy to register a copyright as to get a fishing license. Three sections of the code contain about 60% of the information most people need to know about copyright law. First, section 101 lays out definitions for everything. Second, section 102 defines the various types of subject matter for copyright. Third, se ction 106 defines the exclusive rights of copyrighted words.

Copyright laws were originally set up for authors. As recently as the eighteenth century there is the notion that people buy a work from the original author. Since 1790s, though, we start to talk about the owner of the copyright as opposed to the author. A well-known example of this is Michael Jackson who bought the rights to the songs of the Beatles. He's the copyright owner but not the author.

Copyright protection in the United States is a floor not a ceiling. In other words we have enacted provisions that provide copyright protection that is no worse than that of any other country. For example, when the bulk of the Maria Callas catalogue goes into the public domain in Europe, in 2005, they will still enjoy forms of protection in the United States. The owners are going extend the copyright protection in the United States.

Determining whether a work is under copyright protection may require a copyright search. You can do this yourself - there are resources on-line or in libraries - or pay to have it done. Generally, a work which is clearly an American work either is or isn't in the common domain (discussed below). One has to be more careful with non-American authors.

At one time the US was the biggest nation in history of pirated works. Gilbert and Sullivan never got royalties in the US. Mark Twain used to move to Canada and live there for one month a year to claim Canadian copyright protection so that his work would be protected outside of the United States.

III. A word about music publishers.

The money that music publishers collect comes from four basic sources. As much as 85% of their income is from so-called mechanical royalties which is derived from established contracts. Publishers only have to wait for a check to arrive in the mail. Another 10%, and the fastest growing source, is from performance royalties from such sources as ASCAP and BMI. The third area, which is growing very rapidly, is for TV and movie rights.

The fourth source of income is printed music. This was the primary source 40 or 50 years ago. In the first half of the 20th Century music publishers were the dominant voice in the music industry because it was an industry driven by songs rather than by recorded performances. Great recording artists like Caruso and Bing Crosby weren't performing their own songs. Neither did Elvis, as great as he was, write his own songs. There were people like Buddy Holly who were performing their own music, but it was really the Beatles that changed the music industry.

In the recording industry it is all, pretty much, work for hire. Folks enter into a recording agreement in exchange for money and give up their interest in copyright laws. In music publishing, however, there are all sorts of arrangements. These may or may not be quite amicable. An example of an amicable deal is the co-ownership deal where the copyright is split between the author or composer and the publishing company. Paul McCartney and others have administration deals whereby a company collects the royalties for acts throughout the world.

The music publishers can be difficult to deal with for many reasons. Since, over the last 45 years, 95% of their money comes in on a regular basis with no effort on their part, they are not very motivated to maximize the remaining 5%. The record companies now dominate the business and the publishers are just along for the ride. They are very territorial and do not want to give up any advantage that they may have. They have never really had to communicate with the public. Since 70-90% of their income comes from dealing with institutions instead of the public, there is little economic incentive to work with folks who call them on the phone.

In their defense, one of the major problems that music publishers have is the proliferation of copyrights of all types of music throughout the world and the greater globalization of music. One example: in Brooklyn in New York City, Fulton Street is the epicenter of black music in America, hip-hip central. A couple of miles away people are selling music from Arabic and Middle Eastern countries. In another part of Brooklyn there is music from Israel. On Sunset Park people sell cassettes from China. In Queens, there is a massive industry of music from India. Just imagine what it would be like to administer all of that. It is not only growing in Canada and the United States, but there is music from Mexico, Brazil - all over the place. Because of consolidations and mergers, publishers just don't have the people power to administer it all

IV. Public domain and derivative work.

The rule of thumb is that anything before 1923 is in the public, or common, domain. Also, materials before the 1950s that weren't renewed property are in the public domain. One could go to the copyright office in Washington D.C. (or use the website) and do the research.

However, in 1978 things changed in the way that copyright renewal works. Prior to 1978 the actual author would have to renew the copyright. A result of this was that a lot of people didn't renew copyrights. A good example is the 1946 film 'It's a Wonderful Life.' There's a reason that this movie went from being a neglected work to being ubiquitous. The copyright expired. It's no longer necessary to pay someone to be able to broadcast it. It's completely in the public domain. At one point the entity that owned it went bankrupt and no one renewed the copyright. When a work has passed into the public domain one can do whatever one wants with it.

Ideas, themes and stories for new works that are borrowed from older works have some protection under copyright law. Depending on their source of origin, they will be exempt from copyright penalties.

A derivative work is something that is derived from another work that is copyrighted. The Spiderman movies are derivative. They required permission from the copyright holder before they could be developed. 'West Side Story', based on Shakespeare's 'Romeo and Juliet', and 'Miss Saigon', based on Puccini's 'Madama Butterfly', are not derivative. This is why we can present, say, Gounod's 'Romeo and Juliet' any way we want to, the same with the Shakespeare version, but not 'West Side Story'.

Parodies or arrangements must be substantially different from the original work in order both to be subject to and protected by copyright law. One can't, for example, do 'Oh Susannah' and say 'Oh, Julia' and claim copyright protection. However, if you added a bridge or narration then those aspects would be copyright protected. The original is still in the public domain. At the Super Bowl, the Dixie Chicks made an arrangement of 'The Star Spangled Banner' in three-part harmony. While 'The Star Spangled Banner' is in the public domain, their arrangement of it is not because it isn't substantial enough. If one tries to write one's own ending to Turandot, the new ending would be protected but the rest wouldn't be.

V. 'De minimis' use.

It's common in television programs to see a painting in the background. Basically, if it is identifiable, it's licensed. In the case of music, one is dealing with both the musical work and the recorded performance of the work: the musical composition copyright and the sound recording copyright. When someone makes a digital copy, clearly they have infringed both of the copyrights.

However, there is a notion in American Law known as 'de minimis use.' It refers to a small use. If one is using only a small amount of something it isn't a copyright infringement. There isn't any mathematical formula. The Beasty Boys have used a lot of almost infinitesimal uses of music. They were actually litigated against, taking one case all the way through an appeals court and winning. If it's an infinitesimal use that's not identifiable, it's not actionable. However, copyright law protects the use of a cartoon or a picture in a program. It's not considered 'de minimis use.'

There is a wealth of visual and audio public domain materials available. Creative Commons, a group out of San Francisco (website http://creativecommons.org/), is attempting to build a huge inventory of material that can be used without restriction. The Beasty Boys just gave them some material. They are saying in effect: 'this is mine, but I want everyone to use it without restrictions.' Like the Open Source group in software, the free software foundation. There are any number of people out there in all different disciplines who are giving their works to the world without restrictions. They have waived any form of copyright protection: the philosophy being the more, the merrier.

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The Future of Music Coalition is a non-profit research institute based in Washington, DC that examines the law, economics and technology of music from the perspective of musicians, record labels, songwriters, music publishers, performing rights organizations, academics and music educators and librarians. The FMC's primary goal is to educate musicians and the public at large about some of the critical issues that are shaping the policy debate in the music/technology space.

Public Domain Part Two - Questions and Answers


Web Sites for Additional Copyright information:

Future of Music: www.futureofmusic.org out of Washington University.

Copyright Clearance Center: http://www.copyright.com80/

Copyright Site: http://www.benedict.com/

Stanford University Fair Use: http://fairuse.stanford.edu/

Multi-Media Guidelines: http://www.musiclibraryassoc.org/Copyright/guidemed.htm

American Society of Composers, Authors, and Publishers http://www.ascap.com

American Performing rights organization http://www.bmi.com