Creativity, You & the Law

by Terry Wilhite

Have you ever used somebody else's song or picture on your Web site and wondered, "Do I really have permission to use this?" While we're not here to provide specific legal advice, we can offer you some general guidelines, encourage you to seek legal counsel for your projects and point you to some resources to help you stay within the parameters of the law.

Let's pull out a few letters from our mailbag and ask Alan Durham to respond to them. He is an assistant professor at the University of Alabama School of Law where he teaches courses in intellectual property.

Question: On occasion I have put background music on some of the pages of my church Web site, using simple MIDI files downloaded from the Internet.  I checked with CCLI (Christian Copyright Licensing International) and was told its license has no jurisdiction on the Web. I checked with the webmasters of several sites that make these tunes available as MIDI files, and they claimed that there are no legal constraints on the use of the music since the MIDI arrangements are so much different from the originals. I'm skeptical of that opinion, but can't find an authoritative answer that isn't in confusing legalese. 

Alan Durham: Any kind of complicated copyright issue should be referred to a lawyer-and copyright issues that involve computers very often are complicated! I will say generally, though, that computer users such as Web site operators need to be concerned about copyright issues when they are creating their own material from pre-existing materials. Text, photographs, videos, drawings, and music are all potentially subject to copyright. Music can be a particular concern, because the song, the arrangement, and the performance may all be the subject of separate copyrights. In other words, even if the song you used is safely in the public domain, the recording you borrowed may not be. There is also more than one way to infringe a copyrighted piece of music. You can infringe by "copying" the music (e.g., downloading it to your own computer without permission), "performing" the music (by making it available on your Web site for others to hear), or by creating a "derivative work" (such as your own new arrangement). Some uses for personal enjoyment or in a non-profit setting may qualify as "fair use," which the law permits, but this is a very difficult area to define. A non-profit use may still be an infringing use. As for the reader's question, the skepticism here is justified. As long as the MIDI arrangement is "substantially similar" to the copyrighted tune, the arrangement may be an infringement. If you can still recognize the tune, chances are it is similar enough. You would be better off to use public domain tunes (maybe a hymn tune or a piece by Bach), turned into a MIDI arrangement by someone who is willing to give it away.

Question: I've written a song and want to copyright it. What do I need to do to get a copyright?

Alan Durham: Once the song is "fixed in a tangible medium of expression," it is automatically copyrighted. Writing the song down or storing it in a computer should suffice. There are advantages, however, to registering the copyright, such as the ability to bring suit against an infringer. Registering a copyright requires filling out a form, paying a small fee and depositing a copy or two of your work. You can get the information you need on-line from the U.S Copyright Office (www.copyright.gov).

Question: I'd like to perform songs written and copyrighted by other people and produce my own CD. Who do I obtain permission from to use these songs?

 Alan Durham: Licenses to perform most copyrighted musical works can be obtained from organizations such as ASCAP, BMI, and SESAC. Each performance rights organization has its own catalog of available works. BMI, Broadcast Music Incorporated (www.bmi.com), licenses more than 3,000,000 musical works in all styles of music. BMI licenses music for radio, television, cable, Direct Broadcast Satellite, and pay-per-view services, Internet content providers and Web developers, as well as public venues such as restaurants. ASCAP, the American Society of Composers, Authors and Publishers (www.ascap.com), is a similar organization.  These organizations typically offer "blanket licenses," which, for a single fee, give the licensee the right to perform all of the works in that organization.

Terry Wilhite is a music and multimedia specialist. He welcomes your e-mails at writeme@terrywilhite.com.

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