AUD210 Week 11: Copyright
Today I will be discussing the real world ramifications of the work I have completed this trimester with my cover of The Black Keys’ Tighten Up for the Sound-A-Like project, my remix of Mackenzie Walker’s Focus, and the jingles I have reworked in regards to copyright. I will have more on the jingles project in my next blog post.
In Australia, the Copyright Act, a legal document that governs the protection of intellectual property (IP), makes special exceptions for use of copyrighted material used for educational purposes. I will be ignoring this for now, and looking at the legal ramifications of the work as if I had created them outside of SAE, and intended to sell, perform or play them in public.
I’ll start with the Sound-A-Like project, where my group and I attempted to make an exact copy of the song Tighten Up by The Black Keys. Obviously, outside of an educational system, it would be highly unlikely, and fairly immoral, to produce an exact replica of someone else’s intellectual property. However, it is highly common for people to produce covers of copyrighted material. That is what this is, legally speaking. So, the question is, are we allowed to do this? The answer is yes, but with some conditions. Firstly, a common misconception is that permission is required in order to cover a previously recorded song. This is untrue, as anyone has the right to record or perform a cover, as long as credit, in its many forms, is paid to the owners of the copyright. That credit, in this case, would be owed to the owners of the intellectual property being used. This is generally, and certainly in the case of our project, the writers of the music and lyrics. These are two different types of IP that make up what is called the ‘bundle of rights’ relating to copyright in music. The music, or more specifically the melody in the music, fall under a composition license. It doesn’t include general structural points like chords and progressions. The lyrical content obviously falls under a lyrical license. For a long time, a third license has existed in the bundle, which are the rights to the sound recording itself. The owner of these rights is traditionally whoever paid for the recording costs of the track, usually the record label. In 2005, thanks to Australia entering a free–trade agreement with America, meaning our Copyright Act was amended to line up much more with the American copyright laws, a fourth license was added to the bundle, that of the performer on the sound recording. Because we recorded a cover, however, we have not breached any laws against the owners of the sound recording. So, in the real world, how would we pay credit to the owners of the music and lyrics of this IP, Dan Auerbach and Patrick Carney? Well, fortunately, Australia and New Zealand have agencies that handle the collection of royalties on behalf of composers, lyricists and music publishers here and abroad. For us to be able to sell our cover to the public, we would need to obtain an audio manufacture license from AMCOS. The Australasian Mechanical Copyright Owners Society (AMCOS) grants licenses for artists to produce cover songs for use in a retail sale, sale at performances, submission of recordings to music publishers, record companies, artists, radio stations and booking agents, and for background music, at a performance, for instance. To calculate the fee for this license, we would need to consider our intended sale price, divide it by the number of songs on the album, in this case, one, and times it by 6.6%, which is the standard royalty rate. Then we would need to times that by the number of protected songs, again, one, and times that by the intended quantity of manufactured copies. Nowadays, due to the progression of digital material, non-physical downloads and streams are also considered to be mechanical under the law, and so, the same process would need to be followed for any online sales or streams. In terms of playing the song live, the Australasian Performing Right Association, or APRA, would need to be informed, as they are the agency that collects royalties for composers, lyricists and music publishers. This means that whenever our cover song is played or performed in public, APRA will collect royalties for the appropriate parties. There are many other things to consider in this case, like the fact that copyright owners are protected by what is called moral rights. These state that the owner has the right to be accredited, and that the copy or use of material does not defame or discredit them in any way. At the end of the day, if the copyright owners of Tighten Up were unhappy with our cover for some reason, they would be well within their rights to take legal action against us.
Similarly to The Black Keys, Mackenzie Walker, who wrote and performed the song Focus that I remixed, is entitled to protection by the Copyright Act. In this case, the sound recording was used as well, which means the owners of those rights are entitled also. Permission needs to be granted from the owners of the sound recording, in this case the producers, and it is at their discretion to say how much or what they wish to be reimbursed for granting use. There is no set cost for use of sound recordings, and so, it is largely down to how much bargaining power each party has as to what the cost will be. Also, because the original material is being reworked and reimagined quite drastically, meaning it is not a straight-up cover, but a new work in its own right, permission needs to granted by the owner of the music and lyrics. In a lot of cases this will be a publishing company, perhaps even the record label again, but usually the writer. Even once permission has been granted, the first owner of a copyright is still protected by their moral rights, and depending on what sort agreements have officially been made, will retain creative control and ownership of the new work.
Obviously, there are some serious infringements in terms of the visual content in my jingle projects, but for now, I will just look at the laws surrounding audio. An organisation called Creative Commons is the one mainly concerned with the legal ramifications of the jingle work I have completed this trimester. Creative Commons was born in response to the ever expanding, or depleting, boundaries relating to IP use thanks to the Internet and digital formatting. CC has created copyright licenses, free to the public that allow content creators to determine which rights they reserve, and which rights they do not for the benefit of recipients or other creators. I have used a lot of CC protected material in my jingles, in the form of sound effects and Foley gathered from free audio sites like freesound.org. There are several different kinds of licences under the umbrella of Creative Commons, some ask that the original author be attributed in exchange for unlimited and unrestricted use, others are stricter, asking for that use is non-commercial, or that the work created using the protected material is then shared on under the same conditions. I used such a large array of samples that it would be pointless to list all the licenses I have entered into for my jingles, but I can say the majority were Attribution Licences, that state I can use the audio without any restrictions or conditions, other than contributing credit to the original creator. This credit applies to all Creative Commons licences. In the jingle I created for the John Lewis advert (more in the following blog), I composed an orchestral, instrumental version of the song Forever Now by Cold Chisel. In the real world, this would need to be handled in much the same way as the cover I have mentioned above, although, because it is being used for advertisement this time, the royalties may be much higher, and usually covered by the company commissioning the creation the work.
I have found researching copyright incredibly interesting and important, and have only just brushed the tip of the iceberg. I have a lot more to learn and I will continue to study the many complex and intricate parts of this machine. The only problem is, it seems the laws and conditions change just as fast as I learn them, but that’s the industry we’re in I suppose.