Music Law: Difference between revisions

From Clicklaw Wikibooks
Jump to navigation Jump to search
 
(31 intermediate revisions by 5 users not shown)
Line 1: Line 1:
{{DEMOWARNING}}
{{REVIEWEDPLS | reviewer = [http://www.bellalliance.ca/people/ronan-reinart Ronan Reinart], Bell Alliance|date= March 2018}} {{Dial-A-Law TOC|expanded = business}}
{{Dial-A-Law Blurb}}


This script discusses the law as it applies to song writing, performing and recording music. In particular, it discusses the ownership of music and lyrics, getting paid for performances, the legal relationship among band members, contract relations with managers and agents, and dealing with agreements offered to you by recording companies and others. This script will be of particular interest to independent, non-union musicians who play in a group or band and hope one day to perform at a large event and be offered a recording contract.
Whether you make music or listen to it, it’s important to know the laws that apply to creating and engaging with music. Learn the laws that apply to musicians and music listeners.


==Do songwriters and musicians have the right of “copyright”?==
==What you should know==
Yes. When a song is created, copyrights arise immediately for the music, the lyrics and the combination of music and lyrics. The owner of the copyright may be the person who creates the particular song (musician or lyricist) or it may be another person who has made a contract with the musician or lyricist (such as a publisher or recording company).


Before a song is recorded, it’s generally known as a composition. Once it’s recorded, a separate (but interdependent) copyright applies to the recording.
===Songwriters and musicians automatically have copyright in their music===
Under the [http://canlii.ca/t/7vdz law in Canada], when a song is created, '''copyright''' exists immediately and automatically for the music, the '''lyrics''' (the words) and the combination of music and lyrics. The owner of the copyright is the person who creates the song (the '''lyricist''' or author) and the person who writes the music (the '''composer''').  


Copyright owners (in some cases, the musicians and songwriters, but often the publishers and recording companies) have the right to control copying and distributing their compositions and recordings. This means it is generally illegal to copy songs (and sheet music and song lyrics) without permission of the copyright holder.
This right can be assigned by a written contract to another party, such as a publisher or recording company. (Copyright can’t be assigned by a verbal agreement.)


But there are some exceptions. For example, it’s not an infringement of the copyright to reproduce a song for private purposes if the original copy of the song was legally bought. It’s also not a copyright infringement to make a backup copy or to reproduce the work for the purposes of criticism or review. The ''Copyright Act'' has strict conditions for these exceptions though, so you need to be very careful when considering using or copying music, lyrics or other works for which you don’t hold the copyright.
A song is called a '''composition'''. A recording of the song is called a '''master recording'''. A separate and independent copyright applies to the recording.


==If you play someone else’s music, do you have to pay a “royalty”?==
Copyright owners (in some cases, the authors and composers, but often the publishers and recording companies under written contracts) can control copying and distributing of their compositions and recordings.  
To publicly play or perform music that’s been created or recorded by another songwriter or musician, you, your label or the venue are legally obligated to pay a fee or royalty. So, if you perform cover songs with a group in public, you may be surprised to find a musicians’ collective asking to collect royalty payments from you or the venue. You also have to pay royalties if you record cover songs, whether you manufacture CD’s or simply sell the song over the Internet.


One collective is called the Society of Composers, Authors and Music Publishers of Canada (or SOCAN), found on the Internet at [http://www.socan.ca www.socan.ca]. SOCAN is entitled to demand a play list and royalty fees for pieces performed, including CD’s played by disk jockeys in public places.
===You can’t copy music without permission, with some exceptions===
It is generally illegal to copy songs and recordings without permission of the copyright holder. But there are some exceptions.  


Another collective is the Canadian Musical Reproduction Rights Agency, found at www.cmrra.ca, which collects mechanical royalties for songwriters and publishing companies.
For example, [https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-42/latest/rsc-1985-c-c-42.html#sec29.22_smooth one exception] allows you to reproduce a song for private purposes if you legally bought the original copy of the song. Other [https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-42/latest/rsc-1985-c-c-42.html#sec29.24_smooth exceptions] allow you to make a backup copy of music and reproduce a work for criticism or review.  


And another collective is Connect Music Licensing (formerly Audio-Visual Licensing Agency or AVLA), found at www.connectmusiclicensing.ca. They collect royalties for owners of master recordings, something that disc jockeys should pay special attention to.
[https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-42/latest/rsc-1985-c-c-42.html#sec29.21_smooth Another exception] allows you to use a work in creating a new work, as long as it is solely for non-commercial purposes. This exception is designed to allow non-commercial user-generated content, such as YouTube videos.


Of course, these same laws concerning copyright and the payment of royalties protect you too if you write and record your own music. It’s recommended that you register with SOCAN, which collects licensing fees and royalties on behalf of member songwriters and musicians whenever their music is broadcast on the radio or TV or performed in public. (That’s done through the Canadian Intellectual Property Office, which be found at [http://www.cipo.gc.ca www.cipo.gc.ca].)
===To play someone else’s music, you have to pay a royalty===
To publicly play or perform music created or recorded by another lyricist or musician, you, your label, or the place where you play must pay a fee or '''royalty'''. So if you perform cover songs with a group in public, a musicians’ collective may ask you (or the place where you’re playing, called a '''venue''') to pay a royalty. You also have to pay royalties if you record cover songs, whether you make CDs or sell them online.  


==How do you get paid if you work independently on a single performance or call out basis?==
Musicians’ collectives include:
If you work on a single performance as a back-up or are called to perform a jingle for a radio ad or work on some other call out gig, either live or recorded, you’re normally paid on the day of performance just for that performance. You have no rights in the music beyond the day of performance and generally aren’t entitled to any further payment (there are exceptions, however, for example, if you’re part of the musician’s union). If you’re satisfied with these arrangements, you may not need a written agreement. It’s usually a good idea, though, to ensure you’re paid what you expect when you expect it, and to ensure you (and the band leader) are aware of any other requirements (such as scheduling, equipment rentals or wardrobe).
* The [http://www.socan.ca/ Society of Composers, Authors and Music Publishers of Canada] (or SOCAN). SOCAN can demand a play list and royalty fees for pieces performed.
* The [http://www.cmrra.ca/ Canadian Musical Reproduction Rights Agency]. It collects mechanical royalties for songwriters and publishing companies.
* [http://www.connectmusiclicensing.ca/ Connect Music Licensing] (formerly, Audio-Visual Licensing Agency or AVLA). They collect royalties for owners of master recordings, something that disc jockeys should pay special attention to.
* [http://www.resound.ca/ Re:Sound]. It collects fair compensation for artists and record companies for their performance rights.


==What about further payment beyond the day of the performance?==
The same laws on copyright and royalties protect you too if you write and record your own music. You should register with SOCAN, which collects licensing fees and royalties for member songwriters and musicians whenever their compositions are broadcast on radio or TV or performed in public. (That’s done through the [http://www.cipo.gc.ca/ Canadian Intellectual Property Office].)
These are called royalties. Royalties are further payments if your performance is recorded or taped and the recording is later used on TV or radio or in some other commercial way. If you’re looking for royalties, make sure you get a proper written contract.


==When can you ask for song writing credit?==
===If you work independently on a single performance or a call-out basis===
If you work on a piece of music written by others and suggest changes that have a large impact on the music, you may want co-writing credit for your contribution. If you feel you’re entitled to a co-writing credit for your contribution, you should ask for song writing credit at the time the music is written or recorded. The agreement must be in writing and properly reflect what you are getting credit for.
As a '''performer''' (as opposed to a songwriter), you are normally paid on the day of performance just for that performance. You have no rights in the music beyond the day of performance. Generally, you aren’t entitled to any other payment.  


==What is the legal relationship among group members?==
But there are exceptions. For example, if your performance is recorded and the recording is later used on TV or radio or in some other commercial way. In such a case, you would be owed further payments called royalties. The organization recording you should ask for your permission before recording you.
Most of the time, a group works together with the common goal of earning money, and they make decisions in a co-operative way. Legally, they may be deemed to be a partnership. The arrangement among members should be made in writing by all members sitting down together, setting out the rights and responsibilities of each, how members may join or leave, who writes the music, who owns the band name and so on. Misunderstandings can lead to break-ups and even lawsuits, so make sure everyone understands the agreement.


Sometimes, a group leader hires and pays the musicians and makes all the decisions for a particular kind of show. That person is called a band leader and is legally considered a proprietor. The hired musicians are employees only. They have no ownership interest in the group, unless a different agreement has been negotiated and put in writing.
{| class="wikitable"
|align="left"|'''Tip'''
It’s always good to have a written agreement, even a simple, handwritten one. It’s best to clarify how much you will be paid, when you will be paid, details of the scheduling, and any requirements such as equipment rentals or wardrobe.
|}
===The legal relationship among group members===
Most of the time, a group works together with the common goal of earning money, and they make decisions together. Legally, without any other agreement or incorporation, the group or band will be considered a '''partnership'''.  


A group can also consider carrying on business as an incorporated company. The group may choose to do this if their earnings are significant or if they are signed to publishing or recording deals. Individual members of the group may also consider incorporating their own companies (often referred to as “loan out” companies), which can offer certain tax benefits if the musician’s earnings are significant.
====The importance of making an agreement====
The arrangement among members should be made in writing by all members. It’s best to set out the rights and responsibilities of each member, how members may join or leave, who writes the music, who owns the band name and so on. Misunderstandings can lead to break-ups and even lawsuits, so take time to make sure everyone understands the agreement.


==What about the name of the band?==
====A band leader can be a proprietor====
It’s important as a group becomes popular to ensure that another group isn’t using your group name. To properly protect your band name, you need to consider registering it as a trademark, because other registration methods, such as Internet sites, will not protect you properly. Refer to script [[Patents, Industrial Designs, Trademarks and Copyright (Script 231)|231]] on “Patents, Industrial Designs, Trademarks and Copyright” for more information on this.
Sometimes, a group leader hires and pays the musicians and makes all the decisions for a particular kind of show. That person is called a '''band leader''' and is legally a '''proprietor'''. The hired musicians are independent contractors or employees only. They have no ownership interest in the group, unless a different agreement has been negotiated and put in writing.


==Who in the band gets credit for original music?==
====A group can carry business as a company====
It’s important to discuss writing credits for original music and understand each other as to who the writers are. Is the music created by the band, or only by certain members? This should be written down for each piece of music, and agreed to by all. Sometimes the co-writing credits involve persons outside of the band members, and those people need to be acknowledged.
A group can also consider carrying on business as a company. The group may do this if their earnings are significant or if they are signed to publishing or recording deals. Individual members of the group may also incorporate their own companies (called '''“loan out” companies'''), which can offer certain tax benefits if the musician’s earnings are significant.


==How do you protect your band’s copyright in your music?==
===Protecting the name of a band===
Since copyrights arise immediately on the creation of the work, evidence of the time of that creation can be critical if you have a copyright dispute. You may also need to show that you (or your band) actually created the work (song) in question.
It’s important as a group becomes popular to ensure that another group isn’t using your group name. To properly protect your band name, you need to consider registering it as a '''trademark'''. Other registration methods, such as securing a domain name for a website, will not protect you fully. See our information on [[Trademarks, Copyright and Other Intellectual Property|trademarks, copyright and other intellectual property]].


Formally registering the work with Industry Canada (see [http://www.cipo.gc.ca www.cipo.gc.ca]) is one, very powerful way to prove that you created a work at a given time, but it’s not the only way.
===Protecting a band’s music===
It’s important to discuss writing credits for original music and agree on who the writers are. Is the music created by the band, or only by certain members? This should be written down for each piece of music, and agreed to by all. Sometimes the co-writing credits involve people outside the band, and those people need to be acknowledged.


If you keep notes, communications (such as email messages) and other material (such as song and lyric versions) relating to the work, those too can be valuable evidence in a copyright dispute. There are a number of inexpensive online storage tools that can help (check out secure cloud storage).
====Take steps to protect the band’s copyright====
Since copyrights arise immediately when a song is created, evidence of when a song was created can be critical if you have a copyright dispute. You may also need to show that you (or your band) actually created the song.


Also, if you take the time to document who wrote the song (including the date and the percentage of ownership to each band member) and have everyone sign off, that too can be good evidence of the copyright.
[http://www.cipo.gc.ca/ Formally registering the work with the Canadian Intellectual Property Office] is one very powerful way to prove you created a song at a certain time. But there are other ways, such as emails and other electronic files. And you don’t ''have'' to register.


It’s wrong to believe that copyright can be fully protected only by mailing the original music, lyrics and recording to yourself by registered mail. While this may help to verify the date the work was created, it doesn’t in itself connect the creation to the creator. If you choose to do this, make sure you include inside the envelope a signed statement setting out who created the songs and when, and also who created the recording and when. You can also consider emailing a copy of the songs to all songwriters and performers, along with a summary of who created them.
If you keep notes, communications (such as email messages) and other material (such as song and lyric versions) relating to the song, those can be valuable evidence in a copyright dispute. There are several inexpensive online storage tools available (check out secure cloud storage).


If you plan on formally registering your song, you should note that Industry Canada doesn’t accept copies of single physical recordings, but the U.S. Copyright Office does. See [http://www.copyright.gov www.copyright.gov]. Canadian albums that go into general release are, however, registered at the National Library of Canada by the publisher. See [http://www.collectionscanada.ca www.collectionscanada.ca].
Also, you can document who wrote the song (including the date and the percentage each band member owns) and have everyone sign it. That can be good evidence of the copyright.


==How do you distribute and market your recordings?==
Copyright cannot be fully protected only by mailing the original music, lyrics, and recording to yourself by registered mail. This may help verify the date the work was created, but it alone doesn’t connect the creation to the creator. So generally, this is not an effective way to protect copyright.
Once the musical work is recorded, arrangements need to be made for distribution (via CD and online), marketing and appearances in support of the recording. This is the point where a group usually hires a manager and agent, and looks for deals with publishers and record companies. Make sure everyone is clear on their rights and responsibilities, the commission to be paid to the manager and agent, and the length of time of the agreements. These should be put in writing and reviewed by a lawyer.


==When does a record company get involved?==
====Registering a song====
If the group is successful and creates sufficient buzz, a record company may become interested. Deals offered by record companies tend to be lengthy and very technical. All agreements must be in writing and must be reviewed by the group’s manager and lawyer.
If you want to register your song with the CIPO, it does not accept copies of single physical recordings. [http://www.copyright.gov/ But the US Copyright Office does].  


==Where can you find more information?==
Canadian albums that go into general release [http://www.collectionscanada.ca/ are registered at the National Library of Canada] by the publisher.
*A good resource is “Musicians and the Law in Canada” by Paul Sanderson. The book is available at most libraries and is published by Carswell.
*Another good book is “All You Need to Know About the Music Business” by Donald S. Passman.
*[[http://www.MusicBC.org www.MusicBC.org]] has many resources for musicians, including seminars, a library and technical help. Initial membership is free.
*Also refer to Dial-A-Law scripts [[Forming a Partnership (Script 266)|266]] on “Forming a Partnership”, [[Forming a Private Company (Script 267)|267]] on “Forming a Private Company” and [[Patents, Industrial Designs, Trademarks and Copyright (Script 231)|231]] on “Patents, Industrial Designs, Trademarks and Copyright”.


===Distributing and marketing recordings===
After a song is recorded, it has to be '''distributed''' (by CD and online). It also has to be '''marketed'''. And a band should make appearances to support the recording.


[updated April 2014]
At this stage, a group usually hires a manager and agent, and looks for deals with publishers and record companies. Make sure everyone is clear on their rights and responsibilities, the commission to be paid to the manager and agent, and how long the agreements last. These should be put in writing and ideally reviewed by a lawyer.
==Common questions==


===How long does copyright last?===
All copyrights expire eventually. After copyright expires, a work goes into the public domain. Generally, in Canada, copyrights expire 50 years after the author dies (plus the rest of the calendar year when the author died). There are some exceptions. For example, if the author is anonymous, the copyright term is 50 years from the end of the year of publication.


----
Once a work is in the public domain, usually anyone can copy and use it. But other rights that do not expire may still apply (such as personality rights). So it’s a good idea to get legal advice before using or copying any works you think may be in the public domain, unless your use fits clearly into an exception.
----


===When can I ask for a songwriting credit?===
If you work on a piece of music written by others and suggest changes that have a large impact on the music, you may want '''co-writing credit'''. You should ask for songwriting credit at the time the music is written. The agreement must be in writing and properly say what you are getting credit for.


===When does a record company get involved?===
If a group creates enough buzz, a record company may become interested. Deals offered by record companies tend to be long and very technical. All agreements must be in writing and ideally reviewed by the group’s manager and a lawyer.
==Who can help==
===With more information===
A good resource is ''[https://store.thomsonreuters.ca/product-detail/musicians-and-the-law-in-canada-4th-edition/ Musicians and the Law in Canada]'' by Paul Sanderson. The book is available at most libraries and is published by Carswell.
Another good book is ''[https://www.halleonard.com/product/viewproduct.action?itemid=146064&subsiteid=66 Confessions of a Record Producer]'' by Moses Avalon.
[http://www.musicbc.org/ Music BC] has many resources for musicians, including seminars, a library and technical help. Initial membership is free.
{{Dial-A-Law_Navbox|type=work}}
{{Dial-A-Law Copyright}}
{{Dial-A-Law Copyright}}

Latest revision as of 22:11, 28 August 2020

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by Ronan Reinart, Bell Alliance in March 2018.

Whether you make music or listen to it, it’s important to know the laws that apply to creating and engaging with music. Learn the laws that apply to musicians and music listeners.

What you should know

Songwriters and musicians automatically have copyright in their music

Under the law in Canada, when a song is created, copyright exists immediately and automatically for the music, the lyrics (the words) and the combination of music and lyrics. The owner of the copyright is the person who creates the song (the lyricist or author) and the person who writes the music (the composer).

This right can be assigned by a written contract to another party, such as a publisher or recording company. (Copyright can’t be assigned by a verbal agreement.)

A song is called a composition. A recording of the song is called a master recording. A separate and independent copyright applies to the recording.

Copyright owners (in some cases, the authors and composers, but often the publishers and recording companies under written contracts) can control copying and distributing of their compositions and recordings.

You can’t copy music without permission, with some exceptions

It is generally illegal to copy songs and recordings without permission of the copyright holder. But there are some exceptions.

For example, one exception allows you to reproduce a song for private purposes if you legally bought the original copy of the song. Other exceptions allow you to make a backup copy of music and reproduce a work for criticism or review.

Another exception allows you to use a work in creating a new work, as long as it is solely for non-commercial purposes. This exception is designed to allow non-commercial user-generated content, such as YouTube videos.

To play someone else’s music, you have to pay a royalty

To publicly play or perform music created or recorded by another lyricist or musician, you, your label, or the place where you play must pay a fee or royalty. So if you perform cover songs with a group in public, a musicians’ collective may ask you (or the place where you’re playing, called a venue) to pay a royalty. You also have to pay royalties if you record cover songs, whether you make CDs or sell them online.

Musicians’ collectives include:

The same laws on copyright and royalties protect you too if you write and record your own music. You should register with SOCAN, which collects licensing fees and royalties for member songwriters and musicians whenever their compositions are broadcast on radio or TV or performed in public. (That’s done through the Canadian Intellectual Property Office.)

If you work independently on a single performance or a call-out basis

As a performer (as opposed to a songwriter), you are normally paid on the day of performance just for that performance. You have no rights in the music beyond the day of performance. Generally, you aren’t entitled to any other payment.

But there are exceptions. For example, if your performance is recorded and the recording is later used on TV or radio or in some other commercial way. In such a case, you would be owed further payments called royalties. The organization recording you should ask for your permission before recording you.

Tip

It’s always good to have a written agreement, even a simple, handwritten one. It’s best to clarify how much you will be paid, when you will be paid, details of the scheduling, and any requirements such as equipment rentals or wardrobe.

The legal relationship among group members

Most of the time, a group works together with the common goal of earning money, and they make decisions together. Legally, without any other agreement or incorporation, the group or band will be considered a partnership.

The importance of making an agreement

The arrangement among members should be made in writing by all members. It’s best to set out the rights and responsibilities of each member, how members may join or leave, who writes the music, who owns the band name and so on. Misunderstandings can lead to break-ups and even lawsuits, so take time to make sure everyone understands the agreement.

A band leader can be a proprietor

Sometimes, a group leader hires and pays the musicians and makes all the decisions for a particular kind of show. That person is called a band leader and is legally a proprietor. The hired musicians are independent contractors or employees only. They have no ownership interest in the group, unless a different agreement has been negotiated and put in writing.

A group can carry business as a company

A group can also consider carrying on business as a company. The group may do this if their earnings are significant or if they are signed to publishing or recording deals. Individual members of the group may also incorporate their own companies (called “loan out” companies), which can offer certain tax benefits if the musician’s earnings are significant.

Protecting the name of a band

It’s important as a group becomes popular to ensure that another group isn’t using your group name. To properly protect your band name, you need to consider registering it as a trademark. Other registration methods, such as securing a domain name for a website, will not protect you fully. See our information on trademarks, copyright and other intellectual property.

Protecting a band’s music

It’s important to discuss writing credits for original music and agree on who the writers are. Is the music created by the band, or only by certain members? This should be written down for each piece of music, and agreed to by all. Sometimes the co-writing credits involve people outside the band, and those people need to be acknowledged.

Take steps to protect the band’s copyright

Since copyrights arise immediately when a song is created, evidence of when a song was created can be critical if you have a copyright dispute. You may also need to show that you (or your band) actually created the song.

Formally registering the work with the Canadian Intellectual Property Office is one very powerful way to prove you created a song at a certain time. But there are other ways, such as emails and other electronic files. And you don’t have to register.

If you keep notes, communications (such as email messages) and other material (such as song and lyric versions) relating to the song, those can be valuable evidence in a copyright dispute. There are several inexpensive online storage tools available (check out secure cloud storage).

Also, you can document who wrote the song (including the date and the percentage each band member owns) and have everyone sign it. That can be good evidence of the copyright.

Copyright cannot be fully protected only by mailing the original music, lyrics, and recording to yourself by registered mail. This may help verify the date the work was created, but it alone doesn’t connect the creation to the creator. So generally, this is not an effective way to protect copyright.

Registering a song

If you want to register your song with the CIPO, it does not accept copies of single physical recordings. But the US Copyright Office does.

Canadian albums that go into general release are registered at the National Library of Canada by the publisher.

Distributing and marketing recordings

After a song is recorded, it has to be distributed (by CD and online). It also has to be marketed. And a band should make appearances to support the recording.

At this stage, a group usually hires a manager and agent, and looks for deals with publishers and record companies. Make sure everyone is clear on their rights and responsibilities, the commission to be paid to the manager and agent, and how long the agreements last. These should be put in writing and ideally reviewed by a lawyer.

Common questions

How long does copyright last?

All copyrights expire eventually. After copyright expires, a work goes into the public domain. Generally, in Canada, copyrights expire 50 years after the author dies (plus the rest of the calendar year when the author died). There are some exceptions. For example, if the author is anonymous, the copyright term is 50 years from the end of the year of publication.

Once a work is in the public domain, usually anyone can copy and use it. But other rights that do not expire may still apply (such as personality rights). So it’s a good idea to get legal advice before using or copying any works you think may be in the public domain, unless your use fits clearly into an exception.

When can I ask for a songwriting credit?

If you work on a piece of music written by others and suggest changes that have a large impact on the music, you may want co-writing credit. You should ask for songwriting credit at the time the music is written. The agreement must be in writing and properly say what you are getting credit for.

When does a record company get involved?

If a group creates enough buzz, a record company may become interested. Deals offered by record companies tend to be long and very technical. All agreements must be in writing and ideally reviewed by the group’s manager and a lawyer.

Who can help

With more information

A good resource is Musicians and the Law in Canada by Paul Sanderson. The book is available at most libraries and is published by Carswell.

Another good book is Confessions of a Record Producer by Moses Avalon.

Music BC has many resources for musicians, including seminars, a library and technical help. Initial membership is free.

Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International Licence Dial-A-Law © People's Law School is licensed under a Creative Commons Attribution - NonCommercial - ShareAlike 4.0 International Licence.