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Musical work / sound recording copyright

 
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madstudio
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PostPosted: Wed May 08, 2013 11:21 pm    Post subject: Musical work / sound recording copyright Reply with quote

Hi,
great forum. I hope you can help me with some professional advices.
Actually, I am the complete author of a composition (melody, lyrics, arrangement) and I gave the rights to a record label to publish it a few years ago.
I also shot a music video for the same song.
However, I noticed that the video on youtube has been flagged because of copyright infringement.
It was connected with audio material, so they allowed me to keep the video without the audio itself as I own the rights for the video part.
The question is: can I modify my own recording and start a new copyright without any troubles in the future and upload a new version?

If yes, can you elaborate about that?
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AndyJ
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PostPosted: Thu May 09, 2013 9:38 am    Post subject: Reply with quote

Hi Madstudio,
It is important to say that I know very little about the Serbian law on copyright (pdf), other than what I have read in the English translation of it. That is to say I don't know any of the caselaw or judgments by the courts which reflect how the law applies to specific situations. So on that basis, this is my understanding of the situation which applies in this case. And it is worth mentioning that although US law generally governs the actions of Youtube, I don't think that matters in this case, because you only need to be concerned about whether the complaint lodged with Youtube is valid, rather than their procedure after a complaint has been received. If you can show the complaint is invalid under Serbian law, then that should satisfy Youtube.
My second caveat is that I am assuming the record company is also based in Serbia. If it is not then things may be more complicated, especially when it comes to any contracts which may have been signed.
Serbian law recognises that you are the copyright owner of the music and lyrics you have composed. You also have all the moral rights that go with this.
When you 'gave the rights' to the record company this should have been done in a written contract otherwise it would not be valid under Serbian law (Articles 60-85). Also there must have been a payment to you for this transfer. I am not sure exactly what rights you gave. You say 'to publish it', but I don't know if you mean to publish the score and lyrics on paper, or permission for a singer/band to perform your song and have it recorded. These are two different rights which you are able to control. Since this is a record company, I'm going to assume the latter, and that the company subsequently made a recording using a singer and their musicians. This recording is known as a phonogram in the legal jargon, to differentiate it from your work. Under Article 125 of the Serbian Copyright Act, the owner of copyright in the phonogram would be the record company:
Quote:
Article 125
The producer of a phonogram shall be understood to mean any natural or legal person, that
has organized and paid for the production of the phonogram and that bears the responsibility
for the first recording of a sound or a sequence of sounds.
This means that only the record company can issue copies of the phonogram they produced. There is some additional Serbian law (pdf) on this specific issue but as it is only available in Serbian, I can't comment on it.
Depending on how the contract was worded, you may or may not be entitled to record your own version of the song. If the contract gave exclusive rights to the record company, then this would exclude you from also making a recording, whether in sound alone or in a music video. However if the right you transferred was non-exclusive then you are entitled to also produce your own recording. You will need to check the contract to see what it says.
Assuming you transferred a non-exclusive licence to the record company, then you may certainly upload your recording to Youtube. The problem probably arises where the record company has used robot software to track down sequences of music which match recordings in their catalogue and which automatically sends out take-down notices, without checking details like whether they have exclusive or non-exclusive rights to the song.
You should contact the record company and ask them to make sure this doesn't happen again if you re-upload your video.
I hope this helps to clarify matters.
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madstudio
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PostPosted: Thu May 09, 2013 1:50 pm    Post subject: Reply with quote

Dear Andy, thanks a lot. I translated contract (somehow) hope that it will be good enough. Here it is:
I, the undersigned, XXXXX from Belgrade,
as a performer, recording owner and holder of the legal release of Music
track under title "XXXX" performed in the Serbian language, (author of the composition,lyrics and arrangement) give
approval to the (record company xxxx) from Belgrade that stated
music track can be released, distributed and commercialized within
musical hits compilation release entitled "xxxxxxxx"
in Serbia and abroad without any kind of content and timing
restrictions.
Approval for the release of a music track recorded in Serbian language under
the title "XXXX" is given without any fees and includes a license to operate,
reproduce and distribute this musical piece in a CD release format and
(record company xxxx) as phonogram producers will be holders of producer rights and accordingly, holders of release rights related to matrix recording of the musical track covered by subject edition titled "THE BEST of xxxxx."
Also, I, irrevocable state and certify under penalty of perjury that I hold all necessary rights to the use of music track called "XXXX" as part of this compilation release titled "THE BEST of xxxxx".
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AndyJ
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PostPosted: Thu May 09, 2013 3:50 pm    Post subject: Reply with quote

Hi Madstudio,
Bearing in mind that this is a translation of the contract (I assume the contract was written by the record company for you to sign) there does not appear to be anything in it which makes that an exclusive licence, which would prevent you from making your own recording.
The copyright law I included a link for in the last post (you can find the Act here in Serbo-Croat which you may find easier to follow) makes it clear in Article 62(4) that an exclusive licence must be explicitly stated in the contract,
Quote:
(4) Where the contract does not state whether exclusive or non-exclusive licensing is implicated, concerned licensing of pecuniary rights shall be deemed to be nonexclusive.
and this would not appear to be the case in the part of the contract you have translated.
I think it would be sensible to contact the record company to clarify this point and assuming I am correct, ask them to make sure they (or their robot program) don't challenge your video on Youtube, as you are entitled to publish your own version of your song.
One other thing concerns me. The contract says "title "XXXX" is given without any fees". Does this mean that you weren't paid at the time the contract was signed, or does it mean that no royalties will be expected arising from sales of their album, or both? It does not seem sensible for you to have given away a licence for others to make money from your work, with no remuneration for you. I hope the record company is at least paying your royalties on the sales of their album!
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madstudio
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PostPosted: Thu May 09, 2013 4:18 pm    Post subject: Reply with quote

Thanks Andy. The translation I posted here is complete contract, not just part. So, it must be as you stated, they don't have exclusive licence.

Quote:
I think it would be sensible to contact the record company to clarify this point and assuming I am correct, ask them to make sure they (or their robot program) don't challenge your video on Youtube, as you are entitled to publish your own version of your song.

Of course, I will contact them and ask about this subject, but do I have to change something in my original recording or I can proceed as it is. It's not a big deal to rerecord certain instruments or parts of my song but do I have to do that, or just to mix it again with slight changes?

I hope that I don't ask too much Smile
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AndyJ
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PostPosted: Thu May 09, 2013 4:38 pm    Post subject: Reply with quote

Hi Mad,
No you don't need to change anything in order to record your own work, assuming that you are using all your own original work, and especially the arrangement you mentioned in the first post.
The important point is that both your version and the record company's version can co-exist, and each of you will have separate rights to prevent others from copying your respective recordings.
Good luck with your project
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Last edited by AndyJ on Thu May 09, 2013 8:41 pm; edited 1 time in total
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madstudio
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PostPosted: Thu May 09, 2013 4:53 pm    Post subject: Reply with quote

Great, thanks again and I will post here when I solve this issue. All the best and cheers.
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bkatz
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PostPosted: Wed Jul 09, 2014 2:34 pm    Post subject: HELP WITH MUSIC COPYRIGHT OFONE'S OWN COMPOSITION Reply with quote

Hello

Please can yu answer following?
iI am trying to find out how to protect a piece of music in the uk. would it a good idea to egister with more than one site incase one compnay folds ? Is this okay and acceptable to do?

wHAT ABOUT USING THE UNITED STATES copyright office? Is this okay and would ths be acceptable in a court of law in the uk. Ie using a certificate provided by themas proof of the date work was created/completed.

I am also intersetd in the bearne treaty relationship between england and the usa.

Does anyone know of any goOd copyright sites here in the uk?

Many thanks
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AndyJ
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PostPosted: Wed Jul 09, 2014 4:54 pm    Post subject: Reply with quote

Hi bkatz
I'm not sure why you think it is necessary to register your work; it certainly isn't a legal requirement in the UK or elsewhere in Europe. If this just extra insurance on your part, then obviously you could register your work with as many companies as you like (and can afford), but you need to be aware of the limitations of these services. By registering a work, all you will have proved is that, at a certain date you possessed a copy of the work and claimed it was your own creation. There is no verification that you didn't in fact pinch it from a friend or that you hadn't found it on some obscure Bulgarian music site.
You can certainly register your work with the US Copyright Office, and a certificate from them would satisfy a UK court that you had registered your work at a certain point in time, but the same caveat would apply, as with the commercial registration sites. The advantage with using the US Copyright Office is that, should you wish to take action over an infringement which occurred in the USA (or an infringing copy of your work was held on a server located in the USA) then a Federal court would be able to award you statutory damages if you won your case. However as a non-US citizen you would automatically be entitled to that advantage even if you hadn't registered.
There are separate procedures for filing published and unpublished works with the US Copyright Office, so make sure you read up on the terms and conditions before submitting your application (which costs $35 if you do it online). I understand that there is currently a backlog on all applications.

The Berne Convention has actually been signed up to by 167 countries, including the UK and the USA. The UK (or Great Britain as it was known as then) was among the first signatories, while the USA did not accede until 1989. However Great Britain and the USA were signatories to an earlier treaty known as the Universal Copyright Convention of 1952, and also had a number of bi-lateral agreements dating back to the end of the nineteenth century.


Afternote. Sorry, I forgot to answer your final question. If you want to learn more about copyright as it applies to music, take a look at these sites:
Music Law Advice
Discography
and Bemuso

and for more general information try the Intellectual Property Office copyright section
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digiman999
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PostPosted: Sun Jun 21, 2015 4:13 pm    Post subject: Reply with quote

Provided you

i) only licensed it to the record label (rather than 'assign', which means sell/no longer yours)
ii) haven't let said record label have exclusive rights to being the only person who can record your composition
iii) own the composition CR 100%

then you can make however many recording you like.

Regarding the video's audio, sounds like you don't own that, the record label does, and thus you don't have the rights to upload that audio in a video (even if the video & composition are yours). Ensure your composition is registered with PRS For Music, because they have to pay you royalties per stream (min 1p threshold). Use YouTube statistics to track how many plays your YT video has had, document it, and if the PRS hasn't paid you after 6 months of each quarter, contact them to hassle & provide the evidence they owe you royalties.
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