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THE COPYRIGHT BLOG

 

A STATEMENT FROM SONY ATV

To use commercial music in any way will require a licence from the copyright owners or their licensing partners. To use music without a licence in place will leave the users/ company/ competition open to legal action by the copyright owners who are within their right and very protective of their copyrights, which their songwriters and artists have produced. The same legal standpoint is the same around the world.

Any element of intellectual property would require a licence for its use, from musical compositions and recordings, song lyrics, images such as album covers, artist names and brand logos etc.

With music used in your industry, each mix within the medley would need formal consent from our songwriters.

In short, any use or reference to commercial music in a mix requires a license, including lyrical content, cover versions and the originals. Any use without a license is illegal and will open the user up for legal action.

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MUSIC LICENSING EXPLANATION

Music Licensing can be a complicated copyright to understand when you don’t understand the ins and outs of how licensing works. In simple terms, music copyright is a law that says two things.

  • 1) If you create something, then you own it, and
  • 2) as the owner, you can decide what happens to it.

So, if anyone wants to use a piece of music, they need permission from the owner, a license.

When it comes to licensing music for an industry like Cheerleading where music is being edited/manipulated and mixed together, you require direct approval from the rightsholder which involves finding out who owns the rights and then contacting them directly to negotiate terms, but with such low budgets and short time frames, this just isn’t feasible which is why ClicknClear has developed a simple and easy to use licensing platform together with the music industry.

Before we explain more about the solution, we’re first going to explain a bit about music licensing and how it specifically works in music mixes for sports.

When clearing music, there are 2 main music rights that must be cleared before use; one being the Publishing Rights (the musical composition) and the other being the Master Rights (the recording). You must obtain approval from ALL Rightsholders involved in the work, before use. Here is a video which explains this further.

As a music producer or coach, you require the right to edit the music together, alter the tempo, add sound effects and voiceovers. Once this license is in place, the producer can freely edit the music together and create a mix for a team. Further to this, as these music mixes are used in events (at competition) a performing rights license also needs to be cleared. Performing rights cover the music being played in a venue and are cleared for all types of ‘public performance’ including live performance. This license can be obtained through the venue (if it’s included in hire) or the collecting society from your country and is the responsibility of the Event Producer holding the event. Each venue has different licenses in place so it is advised that Event Producer’s check this when hiring the venue to ensure they are covered.

If all of these licenses are not in place then the producer, the team AND the EP are breaking the law and are at risk of legal action.

 

THE SOLUTION

ClicknClear have worked very closely with the music industry and cheerleading professionals in order to create a legal solution that caters specifically for mixing music for sports. The licenses that are in place allow music mixes made for this industry, to affordably include commercial music, whilst enabling artists and rightsholders to get paid for their work and intellectual property.

ClicknClear have deals in place with almost 30 rightsholders and are signing up more labels and publishers each week. This music has been pre-cleared for use in sports mixes meaning you can now license music and lyrics to use in your mix legally and affordably, at a click of a button. The system is set up so that both music producers and coaches can license music they wish to use depending on individual needs and requirements. These licenses also cover the use of the mix being used in context with a video of the routine on YouTube.

 

WHAT THIS MEANS FOR YOU:

As a Coach you can use www.ClicknClear.com to search for music you wish to use in your mixes. You can create playlists and send them to your producer so that they can license the music, or you can license it yourself.

Once this has been done, you will receive a license agreement, either from your music producer or directly from the site, which you will need to keep for your records.

As a Producer, you need to use www.ClicknClear.com to license the music on behalf of the teams you work with and send the license agreements to your clients. Keep in mind that licenses are only valid per routine mix, so you will need to license each song every time you use it in a mix.

For any questions, please email info@ClicknClear.com.

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AN IN DEPTH LOOK INTO COPYRIGHT LAW FROM A MUSIC LAWYER

WHAT IS COPYRIGHT?

UK copyright law is set out in the Copyright, Designs and Patents Act 1988 (“CDPA”). The primary purpose of copyright law is to reward authors for the creation of original works, that is, works where the author has expended independent effort to create the work.

 

COPYRIGHT AND RECORDINGS/COMPOSITIONS (MASTER & PUBLISHING)

In the context of music, the following categories of works are protected under UK copyright law:

  • Original literary or musical works (section 1(1)(a) CDPA) which are recorded in some way (i.e. written lyrics and compositions/musical notation)  (section 3(2) CDPA); and Sound recordings (section 1(1)(b) CDPA).

A piece of music will, therefore, often have at least two separate copyright protectable aspects (i.e. the musical composition and the sound recording).

 

OWNERSHIP OF COPYRIGHT

The general rule is that the first owner of copyright will be the author (section 11(1) CDPA).

For sound recordings, the author will be taken as the producer of that recording (section 9(2)(aa) CDPA), meaning the person who made the arrangements necessary for making the sound recording (section 178 CDPA).

Song writers and producers will often assign the copyright they own in their compositions and recordings to music publishers and record labels respectively.

 

DURATION OF COPYRIGHT

Copyright protection generally runs from the date of creation or recording of the copyright work until the relevant expiry date.

For literary and musical works, the expiry date is 70 years from the end of the calendar year in which the author dies (section 12(2) CDPA).

For sound recordings:

  • the expiry date is 50 years from the end of the calendar year in which the recording is made; or
  • if, during that period, the recording is published, 70 years from the end of the calendar year in which it was first published; or
  • if, during that period, the recording is not published but is played or communicated in public, 70 years from the end of the calendar year in which it was first so made available.

(In determining whether a sound recording has been published, played or communicated in public, no account is taken of any unauthorised act (section 13A(2) CDPA)).

 

WHAT DOES COPYRIGHT PROTECTION GIVE?

There are two different classes of infringing act − acts of primary infringement and acts of secondary infringement. Acts of primary infringement are "strict liability" offences, meaning that no knowledge or intention is required to be shown on the part of the defendant to establish liability. For acts of secondary infringement, the defendant is required to have had certain specified knowledge, or reasonable grounds for having such knowledge, at the time of the offence.

Acts of primary infringement, which can only be carried out with the consent or licence of the copyright owner, include: 

  • Copying a copyright work.
  • Issuing copies of the copyright work to the public.
  • Renting or lending the work to the public.
  • Performing, showing or playing a copyright work in public.
  • Communicating the work to the public.
  • Making an adaptation of a copyright work or doing any of the acts listed above in relation to an adaptation.

(Section 16(1),(2) CDPA)

It is also an infringement of copyright to authorise another to do any of the restricted acts (section 16(2) CDPA).

Infringement arises where one of the restricted acts is committed in respect of the whole or a substantial part of the work, either directly or indirectly (section 16(3), CDPA).

 

INCIDENTAL INCLUSION

Copyright in a work is not infringed by:

  • Its incidental inclusion in an artistic work, sound recording, film or broadcast (section 31(1) CDPA); or
  • The issue to the public of copies, or the playing, showing or communication to the public, of anything whose making was permitted under section 31(1) (section 31(2) CDPA).
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However, a musical work or lyrics, or elements of a sound recording including them, will not be regarded as incidentally included in another work if they have been deliberately included (section 31(3) CDPA).

 

COLLECTING SOCIETIES

PRS and PPL are the collecting societies in the UK. Each country has their own for example ASCAP AND BMI in the US.

PRS for Music administers the rights of composers, lyricists and music publishers in relation to their songs and instrumentals. PRS pays royalties to its members when their work is performed, broadcast, streamed, downloaded, reproduced, played in public or used in film and TV.

PPL administers the rights of performers, session musicians, singers and record labels in relation to their recorded music. Whereas PRS manages the rights in musical compositions, PPL licences the use of recorded music when it is played in public or broadcast on the radio or TV and then distributes the fees to its performer and record company members.

 

LICENSES REQUIRED TO EDIT AND ADAPT MUSIC

As outlined above, the act of copying or adapting someone else’s work is a restricted act, which can only be carried out with the consent or licence of the copyright owner.

An adaptation of a work is also sometimes referred to as a derivative work. For a musical work, the restriction on adaptations/derivative works includes making a new arrangement of the work or making a transcription of the work for new instruments or voices, as well as creating a new version of an existing track or song through editing, remixing and sampling. Only the copyright owner has the right to authorise adaptations and reproductions of their work, including the making of derivative works.

Accordingly, in order to create a derivative work, permission from the copyright holder by way of a licence is required in order to avoid copyright infringement claims. The only exception to this is if the creation of the derivative work falls under one of the fair dealing defences.

Fair dealing defences include copying parts of a work for the purpose of research or private study and the creation of a parody or pastiche of the original work. However, where a derivative work is being used for a commercial purpose (e.g. performing it at a live event) then such use is extremely unlikely to be considered fair dealing.

 

LICENSES REQUIRED TO PLAY MUSIC IN A VENUE

Venues are required to have a licence with PRS and PPL to cover the music that is played at live events where the audience are charged a fee to view the event. These licences cover the public performance of compositions and recordings which are in the repertoire of PRS and PPL respectively.

However, these licences do not cover the use of music that has been altered in any way, such as by editing, mixing or adding effects, as well as unauthorised arrangements and adaptations. The copying of a copyright work in such a way amounts to an act of primary infringement outlined above and a licence is, therefore, required from the copyright owner.

In addition, if the music is to be synchronised with some kind of visual media then a synchronisation licence will also be required.

 

CONCLUSION

In order to perform remixed and edited tracks at a live event, the following permissions will be required from the copyright owners of the tracks being used:

  • - to create a derivative work/adaptation of the original track;
  • - to copy the track onto different formats (i.e. mp3);
  • - to perform/play the edited/remixed track to the public (i.e. at live events);
  • - to perform the edited mix with a choreographed routine; and
  • - (if applicable) to synchronise the edited/remixed track to visual media.
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ClicknClear ensures that it obtains the above permissions from rights holders via licences so that the music used during cheerleading routines is fully cleared. Using music in a pre-recorded mix that has not been cleared in such a way may result in a copyright infringement claim being made by the copyright owner(s) against the person playing the mix at an event and/or the individual who made the mix.

Have questions? Get in touch.

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