by Howie Cockrill, Esq.
Here at MELON, we're working around the clock to bring you articles to help you navigate the pocked landscape of the entertainment and technology industry.
And what better way to celebrate the holidays than a copyright article on the exclusive rights set forth in Section 106 of the 1976 Copyright Act?!
In previous articles here on MELON, we have discussed at great length “who” is entitled to copyrights.
(see “Who Is An Author,” “Joint Ownership,” “Works for Hire,” and “Assignments Of Copyright”.
In this article, I want to focus not on the “who” but the “what” of copyright. This article will lay out the specific rights that the term “copyright” encompasses.
INTRODUCTION
Many people think of copyright as only a single right, like the right to remain silent or the right to an attorney in criminal law.
However, it is much easier to wrap you’re head around copyright if you think of copyright, not as one single right, but as a bundle or group of rights.
Where does this notion of copyright as a bundle of rights come from?
U.S. CONSTITUTION & COPYRIGHT
Certainly not from the Constitution, which directly provides for the protection of intellectual property and indirectly provides for the creation of a copyright system.
Article 1, Section 8, Clause 8 of the U.S. Constitution, also known as the “IP Clause,” states that Congress has the power to:
Promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.
Clearly the founders intended for authors and inventors to have the exclusive right to their works. However, the notion of multiple copyrights does not appear in the Constitution.
CONGRESS & COPYRIGHTS
The U.S. Congress first provided for multiple copyrights in the Copyright Act of 1790, when it gave authors the exclusive right to publish and sell “maps, charts and books.”
Thus, initially copyright’s “exclusive rights” only encompassed the right to publish and sell.
As technology has affected how art is made and disseminated, Congress has tried to adapt copyright law (albeit slowly) in a way that protects and incentivizes artists while also ensuring that the public has access to the art.
Regardless of whether these attempts to adapt have been successful, the notion that authors and artists have certain “exclusive rights” (plural) has remained a constant.
1976 COPYRIGHT ACT, SECTION 106
The current version of these exclusive rights is in Section 106 of the Copyright Act of 1976.
In addition to calling them the “exclusive rights,” many people refer to them as the “Section 106” or “106” rights.
Here is the actual language of Section 106:
Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:
(1) to reproduce the copyrighted work in copies or phonorecords;
(2) to prepare derivative works based upon the copyrighted work;
(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
(4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;
(5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and
(6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.
“D.R. D.A.P.”
In case you’re eyes are glazing over, “DR. DAP” is a helpful pneumonic device to remember the exclusive copyrights.
D.R. D.A.P. stands for:
1. Distribute
2. Reproduce
3. Display (publicly)
4. Alter
5. Perform (publicly)
This means that for any work that is copyrightable (i.e., any original work that is fixed in a tangible medium) – the author of that work has the exclusive right to distribute, reproduce, display, alter and publicly perform the work.
As you think of copyright as a bundle of rights, remember that the bundled rights can be separated from one another and each right can be chopped up into pieces according to territory and time.
For example, a copyright owner may sell or license the right to publicly perform his work in Asia for 3 years to Party A and in Canada for 10 years to Party B.
He may then sell or license to Party B the right reproduce his work in Europe for 6 months, all the while retaining the right to distribute the work himself throughout the world.
WHAT RIGHTS APPLY?
D.R. D.A.P. just lists all the potentially applicable exclusive rights.
However, not all of these rights will be applicable to all kinds of art, simply because of the limitations of certain kinds of art.
For example – the public performance right does not apply to painters, nor does the display right apply to musicians.
Also, it is absolutely crucial that parties entering agreements for the use of copyrighted works have a solid grasp of this concept of multiple exclusive rights.
For example – if you want to sell someone else’s music on your website (music that is not in the public domain), you will need a license (permission) from the copyright owner. What rights should this license give you?
- You will need the right to reproduce the music, if you are selling digital downloads/copies.
- You will need the right to distribute the music, because you are sending it out over the internet.
- If you want to also stream the music on your website, you will need the right to publicly perform the music.
SECTION 106 & MUSIC
Speaking of music, there are special rules for music in the Section 106 rights.
As I mentioned before, there are 5 exclusive rights belonging to the copyright owner – D.R. D.A.P.
In any given music track, there are 2 separate copyrights – 1 for the
underlying composition and lyrics, and 1 for the recording of the
composition/lyrics.
For each of those copyrights, DR. DAP applies.
Regarding the “P” in DR. DAP, the performance right is applied to the 2 music copyrights in a peculiar way.
The songwriter / publisher has the exclusive right to the public performance of their composition, whether the song is performed by an analog transmission (like AM/FM radio) or by a digital transmission (like internet radio).
The musician / record label has the exclusive right to the public performance of the recording of the composition. However, this right only extends to performances via digital transmission – not analog.
Thus, as of the time of this article, musicians/record labels only get paid for public performances via satellite and internet radio (i.e., digital) transmissions.
They do not get paid for public performances on AM/FM radio because they do not have a public performance right for analog transmissions.
Note that I said, “as of the time of this article.”
This imbalance in the application of the Section 106 performance right to recorded music is a very controversial topic – and one which the RIAA and SoundExchange lobby very hard to change.
Because the sale of music has been steadily declining over the past several years – the thought of collecting an additional performance royalty for analog transmissions is extremely appealing the copyright owners of recorded music.
As you might imagine, the National Association of Broadcasters (respectfully) disagrees with the RIAA’s perspective and will fight tooth and nail to avoid paying a performance fee to record labels.
WHO CARES?
Whether you are a copyright owner or someone who wants to use copyrighted material – understanding what rights are encompassed by the term “copyright” is vital to protecting yourself and your business, getting your art out to the public, and of course maximizing your profits.
In fact, when you think about each of the exclusive rights in copyright, you should also be thinking about dollar signs.
Each exclusive right represents potential income for a copyright owner.
But because the copyright owner often has enough on her plate without trying to keep all these rights straight, middle men have cropped up to help administer these rights.
For example, in the music industry
- the Harry Fox Agency collects reproduction royalties for songwriters and publishers,
- ASCAP, BMI and SESAC collect performance royalties for songwriters and publishers, and
- SoundExchange collects performance royalties for digitally transmitted music for musicians and record labels.
Whether you are keeping track of the exclusive rights, or whether you hire someone to do it for you, having a firm grasp of what copyrights you have and what copyrights you need is at the heart of making a living in the entertainment business.
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