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From The Desk Of Shelly Harris...

by Shelly Harris

"COPYRIGHT LAW - Part Two"

      In this second part of the discussion of copyright law (as it pertains
to musicians), I will address: "Fair Use," situations where co-writers are
involved, situations where non-writers are considered co-owners, the
potential effects of partnership or collaboration agreements on copyrights,
and formally registering your copyright.

     Fair Use: This term often applies nowadays to the practice of
"sampling," or borrowing only small portions of another entity's copyrighted
song for inclusion in your songs.   For example, certain portions of riffs,
or lyrics, may be "sampled" but not the essence of the work. However, just
what the essence of a work is...is not easy to determine in advance. Your use
will be more apt to be considered "fair" or permissible if your version is
part of a parody, but, in any event, the legal standard for what will be
allowed (without a license from the copyright holder) is very subjective and,
therefore, dangerous!

     It has been determined that limited borrowing is also permissible when
criticism or press coverage are concerned, but, even then, only a portion of
the lyrics, songs, or music may be used. Unfortunately, no set standard has
been determined, so copyright infringement in such cases are reviewed by the
courts on a case-by-case, fact specific basis. The rule of thumb is: When in
doubt, obtain a prior license/permission from the copyright holder!

     Situations where co-writers are involved: Unless there is an agreement
to the contrary, co-writers are considered co-owners, even if the
contributions are unequal. On top of that, only the permission of one
co-owner is required to grant a license for the use of the song(s) to anyone
else who may want to use or record if for any purpose (i.e. it will not be
under collective control, although the subsequent profits must still be
shared).   Keep in mind, however, that if you do not decide and agree on the
percentage of each co-writer's contribution for purposes of royalties and
licensing, it may be presumed that each writer's contributions are equal.
Absent an agreement between the writers, it could ultimately require a
lawsuit to determine the value of each writer's actual contribution and
corresponding stake in the profits.

     Situations where non-writers are considered co-owners: Sometimes a well
known artist will demand co-writing credits when the writer is eager to have
him or her perform the song. Also, if the band earns money from publishing
their songs, all band members--including non-writers--will receive
royalties/profits from the band songs if the partnership agreement states
specifically that all songwriting income is shared. These are important
issues to consider before recording! Which leads us to...

     The potential effects of partnership or collaboration agreements on
copyrights: Remember, if you do not come up with a system for allocation of
the songwriting credits and profits yourselves, someone else--usually via
legal action--may ultimately be forced to do it for you. Even though it is
often uncomfortable to broach this issue with your band members, it is
definitely best to be up front with each other with what each person wants
and expects in advance!

    One way to circumvent such problems is to execute a collaboration or
co-writer agreement, which will detail the percentages of contributions for
each song, and it may also detail how the rest of the non-writing band
members are to share (or not share) in any potential profits as well.
However, a more comprehensive way to handle this problem--and others--is to
address them in advance via a system that is incorporated into a band
partnership agreement. The more complete details of drafting and/or
executing the all-important "Band Partnership Agreement" (or a "Corporate
Resolution" if you will be operating as a corporation) will be discussed in a
future column.

    How and when to register your copyright: Although registering of your
copyright is not mandatory, it will definitely better secure your rights, as
well as secure any potential "statutory damages" in the event of a valid
infringement suit. Since it is relatively inexpensive, in many cases it is
best to register a copyright just after a CD has been pressed so that the
songs and the recorded versions of the songs can (sometimes) be copyrighted
simultaneously. There are a variety of forms that must be chosen from with
the Federal Trademark and Copyright Office, depending on your particular
circumstances. Next month I will give you more precise details about the
sometimes complex procedures for application, as well as the best ways for
minimizing your fees if certain conditions exist.

     Finally, I would like to extend a hearty "congratulations" to Chicago's
esteemed veteran Blues/Rock guitar virtuoso, Don Griffin, who was just named
the "Blues/Rock Artist of 1999" by Real Blues, one of the three best known
(and internationally distributed) magazines in the genre. Keep in mind that
Don "beat out" other more publicized artists in the genre (i.e. Kenny Wayne
Shepherd, Jonny Lang, Johnny Winter, etc.) for such an award. Reportedly,
the staff at Real Blues was so wowed by Don's recently released third solo
CD, Play It Loud (currently available via Amazon.com) that they they created
a new category this year that would fit him. Not surprisingly, with the new
release - as well as a major headlining Australian tour last year--Don is
finally in the throes of generating the major label interest he has long
deserved.