Exam 2 EIP

Subject Matter of Copyright, Songwriter Agreements, Songwriter Royalities, Minimum Delivery, Advances and Recoupment, Music Publishing, Admin and Sub-Pub Agreements and Royalty Calculations, Works of Authorship, Copyright Formalities

What is protected under copyright?

Original works of authorship fixed in a tangible medium of expression

What constitutes a work as “original”?

The work was not copied, was the author’s own creation, it does not need to be good or novel

Work of Authorship must…

Be an independent creation that originates from the author with minimal amounts of creativity, an idea expressed into tangible means

Fixed in a Tangible Medium of Expression

Must be able to be perceived i.e. heard, read, viewed, etc. and sufficiently permanent such as CD, Hard Drive, or Paper

Fixation and Video Games

The work is fixed in a tangible medium when the program is embodied in the “read only” memory device

Chapter 11 of the Copyright Act

Addresses Bootlegging, prohibits the recording (audio or audiovisual) of live performances without authorization from the performer

What is a Derivative Work?

A “derivative work” is a work based upon one or more preexisting works consisting of editorial revisions, annotations, elaborations or other modifications which, as a whole, represent an original work of authorship.

Compilation

Work formed by the collection and assembling of preexisting materials or of data that is selected, and arranged in a way that results in a work that is an original work of authorship.

Collective Works

A work in which a number of contributions, separate and independent works in themselves, are assembled into a collective whole.

Are Collective Works a type of Compilation?

Yes

Not protected by Copyright

Names, Slogans, Short phrases, Ideas, Government works, Facts

Merger Doctrine

When an idea can be expressed in only one or very few ways, the idea is said to merge with the expression, and the expression is not protectable under copyright.

Independent Creation

The copyright law doctrine that recognizes it is possible for two people to create the exact same or substantially similar works without copying from each other.

Types of Songwriter Agreement Deals

Exclusive Songwriter Agreement, Single Song Agreement

If a songwriter fails to meet the minimum delivery requirement in an exclusive songwriter agreement, the music publisher typically has the right to…

(1) Suspend the term of the agreement (2) Exercise the next option period and add the missing songs to that next option period (3) Terminate the agreement

Why must you review approval rights in the songwriter agreement before granting a license?

Songwriters often have approval rights over certain types of uses of their songs.

Songs that are Subject to an Exclusive Songwriter Agreement

Prior Compositions (schedule A songs), Term Compositions, Acquired Compositions

Advances paid to songwriters are recoupable, but they are NOT…

Refundable

If the songwriter does not earn enough in royalties to recoup the advances, does the publisher get the money back?

No

Pure Songwriter Agreement Contract Period

12-month contract periods

Pure Songwriter Agreement Delivery

Minimum Delivery of X amount of songs per year/option period

Pure Songwriter Agreement Advance

Advance in 12 installments

Artist/Writer Agreement Delivery

Delivery and Release, songwriters must have a specific number of songs commercially released by a major label before their contract option can advance or terminate

Artist/Writer Agreement Advance

Advance in 2 installments

Artist/Writer Agreement Term

Term matches artist agreement

Advances paid to a songwriter are _____ from royalties payable to the ____.

Recoupable; Songwriter

If the songwriter has a co-publishing agreement, the advances are…

recoupable from the portion of the so-called “publisher’s share” of the income that is payable to the songwriter.

Single-Song Agreement

An agreement between a songwriter and a music publisher where the songwriter assigns a specific song to the music publisher

What do Music Publishers do?

Acquire Songs, Exploit the Song and Secure Uses, Administer Copyright and Copyright Protection, and Pay the Songwriters

What is Acquiring Catalogs?

Purchase existing catalogues of songs and take over all of the songwriter agreements

Retention Period

The period of time after the end of the term during which the administrator or sub publisher will retain rights in songs for which they secured.

Collection Period

The period of time after the term or retention period during which the administrator or sub-publisher can collect income earned during the term of the agreement. The collection period applies to all songs under the agreement.

At-Source-Accounting

Requires the sub-publisher to pay the copyright owner based on the total amount collected at the source. This helps prevent double-dipping when a sub-publisher represents multiple territories.

Due Diligence

The process of reviewing a music publisher’s financial records (income received, royalties paid) and contracts prior to deciding whether to purchase the music publisher.