(Originally published in Franklin, Weinrib, Rudell & Vassallo’s Newsletter, The Report, Winter 2005-2006)
Scene: Counsel is advised by a client that a license has already been obtained for the use of a piece of recorded music in an audiovisual production such as film, television or home video.
The attorney asks, “For which copyright did you obtain clearance?” and receives a confused look. He then explains that although the right to use a musical composition may have been cleared, one must also obtain the right to use the particular recording or, vice-versa, that a license to use a recording may not eliminate the necessity to secure rights to the underlying composition. While in some instances one of those rights alone may suffice, the exceptions are rare, and before we get to them, let us study the basics of what these two copyrights are about and how they are identified.
The copyright symbol most familiar to the public is the ©. It predates the symbol P in a circle by several decades. The © represents protection for U.S. works under copyright, except phonorecords. In fact, until 1972 there was no copyright in the United States for phonorecords. The protection of these rights fell under state laws of unfair competition or intellectual property rights, but were not covered by federal copyright protection.
In 1972, Congress expanded federal protection of copyright to phonorecords, thereby preempting state laws on the subject. This did not affect pre-1972 recordings which remained the subject of state, not federal laws, for decades to come. So the client must still obtain some form of license for pre-1972 recordings, unless they have fallen into the public domain.
In distinguishing between these two rights, there are different federal copyright symbols and different parties to approach for clearances. As this article focuses on music, we are only going to discuss the usage and copyrights applicable to compositions and the recordings of same, though the © applies to books, design copyrights, art, and other written forms of expression as well.
There are also differences between © and P in a circle rights in the applications of the law. For instance, the US Federal copyright law, even when establishing protection for 1972 recordings, initially gave no recognition of public performance rights in phonorecords; hence, owners of that copyright could not prevent and thus did not derive income from recordings, such as via radio play. There have been amendments to that with the coming of the digital age. But, by and large, concepts are similar for P in a circle and © rights in terms of the rules of ownership, term, assignment, mortgage, etc.
An example of how the song is different from the recording: Suppose the tune “Stollen Rolls” is composed by the songwriting partnership of Baccarat and Heimlich, who licensed it to be recorded for Voice Records, by the artist Mike Juggler. The composition, which the writers created, is covered by a © copyright. However, the recording made by Mike Juggler for Voice Records is covered by phonogram copyright represented by a P in a circle notice of ownership.
Where do these symbols reveal themselves? The c on the label/package/cover of that record denotes the notice of ownership of the recording itself (the phonogram copyright). Whereas ordinarily a © is expected to appear on films and books, as well as on print folios or sheet music for songs, it is not necessary on phonograph records containing a performance of that song, as that is not deemed the “publication” of the songs.
Should the reader recall having seen these notices on CDs, records and tapes, the © on the labels, packaging or covers is really being used as an identifying mark indicating ownership of the artwork and not the song; however, if the package contains written lyrics of those songs, a © symbol would appear there because that indeed is a “publication” of the lyrics which merits a copyright notice.
But the potential licensee of these rights will need to ascertain which entity actually owns or controls these rights, for the purpose of licensing the usage of each of them.
The next issue of this newsletter will give some details on this subject and advice on how to go about seeking rights from the appropriate parties.