Benn Jordan

Below is an article which was initially written for a larger site, but I decided that most of the biggest misconceptions have to do with musicians, rather than users:

Before I dive in, I am not an attorney. For over a decade I’ve been a professional producer and owner of a music publishing company.  Without going into detail, I’ve sued for copyright infringement, I’ve been sued for copyright infringement (unsuccessfully), and I negotiate licensing and copyright contracts more than a musician would ever like to. In fact, the reason I don’t normally use an attorney for these negotiations is because, while an IP lawyer can translate a contract, he or she doesn’t necessarily understand copyright value.  At least not on a scale I would trust when it means the difference of $500 and $40,000 to use a recording for a television commercial. The world of music licensing is a unique one that can only be learned with experience, and it is an industry much smaller and more incestuous than one might imagine. That being said, obviously nothing said here (or anywhere on the web) should be considered legal advice.

Copyright VS. Copywrite
In many discussions, on both internet forums and around a dinner table, I’ve heard someone break down the specific differences between copyright and copywrite. Some say that copywrite is the musical notes, while copyright is the recording. Others go as far to say that copywrite applies only to literature. Well, no matter what you think copywrite is, you’re wrong. In fact, it isn’t even a real word. “Copywriting” and “copywriter” applies exclusively to someone writing to promote a product or service. For example, a piano moving company will hire a freelance copywriter to nicely describe their services in a way that would make you trust them with your piano and credit card information. It has nothing to do with intellectual property, or copyright.

“It Is Legal To Download Content You Previously Purchased On CD/DVD/iTunes/etc”
I think this misconception is born out of common sense. You bought the intellectual property, so it would be ridiculous to consider downloading it from a torrent site as piracy. Guess what, it is considered piracy, it is illegal, and it is ridiculous.  I’ve read a lot of posts about people eagerly awaiting a PC confiscation only to one-up the feds with a matching CD collection. Unfortunately, that wouldn’t prevent the charges, it wouldn’t work in your favor in court, and it most likely wouldn’t even reduce your penalty. It is, however, legal to copy a CD to your computer or download something from iTunes and re-encode it to an MP3. However, you legally cannot make a tangible duplication (burn another CD).

“If An Artist Samples Less Than 3 Seconds Of A Copyrighted Song, It Falls Under Fair Use (And Other Fabricated Fair Use Perversions)”
This specific topic is so well spread and argued that, to me, it feels like a scientist arguing with a creationist.  There are all sorts of different versions of the myth:  Some say 7 seconds, some say 1 second, and some say the trick is changing the pitch down or up a note. Whenever I’m somehow involved in this debate, I always make note to ask where they heard such bullshit. Astonishingly, the number one answer to that question is “college”. This means that all the way up the hierarchy to your trusted professor, nobody seems to understand fair use. I have at times, with a foil hat on my head, imagined that these misconceptions have been spread on purpose to make lawyered-up music publishers and film studios money.
So let’s set the record straight. You cannot legally sample music without clearance. It begins and ends there. If someone were to take a tiny clip of one of my songs, pitch it down to 10% speed, reverse it, and slam 8 minutes of echo on it, I could sue their pants off (not that I would, or even be able to detect such a thing). For you electronic musicians out there, also understand that a lot of sample and loop libraries do not clear their samples for professional use. This means that if you use a drum loop from a library you shelled out $499 for, and you end up licensing that song to, say, a tampon commercial, the original copyright holder can, and probably will sue you.  Always check the clearances before purchasing (or pirating) a sample library.

Another very weird fair use misconception is the “Ask Three Times Rule”.
I get a lot of emails asking to use my music for college films, performances, even feature length films explaining that they have no budget. I have a nice little graphic on my site explaining the terms and conditions of using my music that these people usually ignore, choosing to send me an email anyway. If I drew up a license for every one of these requests I’d have to quit working and spend my life switching between Gmail and Microsoft Word. So, like an asshole, I ignore them. But once in a while, something strange happens:
A few days after the first email, I’ll get the same email again, but with “second request” at the end of the subject line. Then, a few days later, I’ll get a “third request”. Then I never hear from them again. This never even became a conscious thought until my friend, who has a degree in dance and worked for a large dance company mentioned the “Three Notices Rule” for music used in performances. It turns out, not only her university, but one of Chicago’s largest dance companies was under the impression that if nobody responds to your clearance request three times, you legally have clearance. I thought she simply misunderstood something until I thought about all the emails that matched this strange set of false rules. To be clear, you cannot use music for a performance unless you have a license agreement. Even if you get a response saying “go for it!”, that provides you with nothing in the terms of US copyright law.

“It Is Legal To Reuse Public Domain Material”
The short explanation:  Usually, but if you’re not sure, don’t.
The medium explanation:
First things first, figuring out if something is public domain can be very difficult. A few months ago I got the idea to pitch an in-house produced version of Gershwin’s “Summertime”. As of 2012, George Gershwin has been a corpse for 75 years, thus making his writings public domain. But wait a minute, the Copyright Terms Extension Act of 1998 now comes into play, extended these terms to life of the author plus 70 years and for works of corporate authorship to 120 years after creation or 95 years after publication, whichever endpoint is earlier. Copyright protection for works published prior to January 1, 1978, was increased by 20 years to a total of 95 years from their publication date. Go ahead, take an Advil.

To make matters more confusing, while copyright is very important, it doesn’t always cover potential trademarks or source identifiers. Let’s imagine McDonalds abandons their horrible major scaled “I’m Loving It” jingle and popularizes the first 9 notes to Beethoven’s “Fur Elise” as their new mnemonic. That doesn’t make it copyrighted by McDonald’s, but you would find yourself in quite an entanglement if you went on to produce a dubstep remix of “Fur Elise” (yawn) that made its way to a Wendy’s commercial. This plays a much larger role in visual art, where copyright and trademark blend a lot more often.

Finally, there are 2 sides to every music license, the master and the synchronization license. The master is the song itself, and the synchronization is the recording. Pretty much any version of “Fur Elise” that you can buy or download is still covered by synchronization. The music is public domain, the recording is not. Stick to MIDI files, I guess.

Thanks for reading. I hope someone out there learned something. There are about 200 more misconceptions that I could cover here, but I’ll save that for another installment.