Intellectual Property: Whose Song is it Anyway?

Copyright provides protection for original creative works. Its basic provisions are set out in the Copyright Act of 1976. It is actually a “bundle” of rights. Copyright owners, or those they designate, are the only ones who may exercise these rights which are: the right to reproduce the work in either copies or phonorecords, the right to prepare derivative works (new arrangements, for example), the right to distribute copies or phonorecords of the work to the public, the right to display the work, and the right to publicly perform the work.

These rights are secured automatically upon the creation of the work in a fixed form. Publication is not required, nor is registration with the Copyright Office, though such registration makes fighting infringement easier.

These rights may be assigned to others; composers, for example, often give publishers the right to publish their works and administer their copyrights. Copyright law also provides for the recovery of copyrights that are assigned to others after a certain amount of time has elapsed. The copyright owners, or those they designate, may extend various licenses to users. These include mechanical (recording), non-dramatic performance (also known as small rights), grand rights (for use in dramatic performance; opera and ballet are included here), synchronization (use in a soundtrack), print (sheet music), and commercial licenses (use in advertisements).

There are various limitations to the copyright owner’s exclusive control over the work. Most important is the concept of “fair use,” which provides for use of the copyrighted work in such activities as criticism, commentary, parody, news reporting, teaching, scholarship, and research. The limitations of fair use have been developed through court cases. The factors used to determine if a fair use defense applies are: the purpose and character of the use (is it commercial or non-profit?), the nature of the work, how much of the work is used in relation to the whole, and the effect of the use on the potential market for, or value of, the original.


Intellectual Property: Whose Song is it Anyway?
by Heidi Waleson
©2000 NewMusicBox

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