This page contains information on copyright of interest to persons creating audio for use on the Web and in interactive media. Here I will provide some general principles you should understand when creating your own audio content or using someone else's.
DISCLAIMER: Please be aware that I am not a lawyer. These guidelines are researched and should be of assistance to you but they should not be relied on as the sole source of legal advice for any work you do.
Copyright law exists to encourage the creation of new artistic works by providing a financial incentive to the creators. If you produce original music, video, art, or literature, then you own the copyright. That means that Congress confers upon you the exclusive right to copy and sell what you own. If anyone else copies or sells your content (or any portion of it) without your permission, you can file suit and collect substantial damages ($500 to $100,000 per infraction). You own the copyright, so you control how your work is used. That means you are free to use it in any work you do. Of course, if you own the copyright for a piece of music, that also means you can sell that copyright to another if you so desire.
If you are producing original audio for a client, you need to have a clear written agreement about who owns the copyright for the completed work. In general, any thing you do for a client that is labeled as a work-for-hire belongs to the client entirely unless you expressly exclude portions of the work that are under license to others. That means that when you complete an audio project for a client and they pay your invoice, they have purchased the rights to your music. At that point, the client owns the copyright and you don't. The point here is to communicate clearly in writing with your client so that no misunderstandings arise later.
Copyright law grants content creators exclusive right to copy and sell their content for a limited time. When the first U.S. copyright law was passed in 1790, the term of copyright was only 14 years with a possible extension of another 14 years. Over time, a number of political and economic factors have persuaded Congress to extend the term of copyright. Today the copyright of a work endures for a term consisting of the life of the author and 70 years after the author's death. In 1998, the Sonny Bono Copyright Term Extension Act was passed to help align U.S. copyrights with international copyrights. As a result, nothing new will pass into the public domain until January 1, 2018. This new law is often called the "Mickey Mouse Law" because of Disney's interest in it. Without this law, Mickey Mouse would have entered the public domain on January 1, 2003. Donald Duck, Goofy, and many others would follow. The point here is that copyright is a matter of law and the term of copyright can be changed through legislation.
Another way to legally add music to a Web site or media project is to use public domain audio files or purchase CDs or DVDs containing royalty-free audio. Public domain audio can be used without any restrictions. Royalty-free audio, however, has some restrictions. Generally you receive a license when you purchase CDs of royalty-free music. That license allows you to use the music in the products you produce for your clients but specifically prohibits you from reselling the music itself. In other words, the music still belongs to the company that sold you the CD, they are just licensing it for use by you and your client.
Sometimes you can find Sample CDs at your local music store but you can preview and purchase so much more using the Internet. Here are some links to get you started.
If you just have to use content that is owned by another, then you will have to approach the copyright owner for permission. In this regard you have to consider the different types of licenses. The mechanical license covers use of a composition and protects ownership of the composition regardless of who performs it. For example, if you are a piano player and you record I Got Rhythm (1930) from the Gershwin songbook, you will have to pay a mechanical license fee even though you are the performer on the recording. On the other hand, if you record Maple Leaf Rag (1899) by Scott Joplin, there are no mechanical license fees to pay because "Maple Leaf Rag" is in the public domain. A special type of mechanical license is called a synchronization license. If you are using copyrighted music in a Flash animation or other interactive media, you will need to negotiate a synchronization license with the copyright owner.
A second important type of license is the Master License which covers use of existing recorded performances. If you wish to use an excerpt from a CD performance of any work, you must have a Master License. Even if the work being performed is in the public domain, the recorded performance of that work can still be copyrighted. That means that if you create and record original performances of public domain works, then you will own the rights to those recordings.
In almost all cases, the Harry Fox Agency is your contact to negotiate a license to use someone else's music content or performance. The Harry Fox Agency is in charge of licensing for the National Music Publishers Association (NMPA). NMPA is also a great place to learn more about copyright and licensing.
Many people have heard of the Fair Use provision of the copyright law. This provision allows scholars, critics, and teachers to copy portions of copyrighted works for the purposes of teaching, criticism, and scholarship but not for performance. The excerpts must not comprise a part of the whole which would constitute a performable unit such as a section, movement or aria. In no case can the excerpt be more than 10% of the whole work. The number of copies distributed can not exceed one copy per student.
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