Music on hold (copyright)
From Wikipedia, the free encyclopedia
 |
This article may require cleanup to meet Wikipedia's quality standards. Please improve this article if you can. (December 2006) |
 |
This article or section may contain original research or unverified claims. Please improve the article by adding references. See the talk page for details. (September 2007) |
When selecting sources of music on hold, copyright issues need to be considered.
In the US, and where copyright laws are practiced in other foreign countries, music created and composed by the author(s) is granted copyright protection. Such copyright protection has existed since just after the turn of the 20th century and most music written prior to 1900-1910 - from impressionism back to baroque and antiquity are said to be "in the public domain." Use of any said music prior to the creation of these copyright laws may be presumed to be free for use by all - although individual titles may have been later copyrighted through a change in the composition or arrangement. The use of copyrighted music is not for free use in the public domain.
All music written after this period, which is copyrighted under multiple acts of congress, are owned by the author(s) or their assignees. The use of this music is protected and controlled in order that the owner may derive usage income. Specific to telephonic MOH (music-on-hold), the US laws currently protect the copyright owners from unlawful, unpermitted use of their music titles in over-the-phone broadcast. Any person or business wishing to use current, popular, post 1900-1910, copyrighted music for MOH purposes may only lawfully do so by obtaining permission from the owner. Currently, performance rights societies such as ASCAP, BMI and SESAC will sell blanket permission to use music titles in their catalog for MOH purposes -- for an express annual fee - calculated by size and frequency of usage. Failure to obtain this paid permission is a violation of US copyright laws.
This same copyright protection is also true in the rebroadcast of any radio program. As mentioned earlier, the broadcaster has been assigned a narrow and specific usage license to air copyrighted song titles. This does not include permission to any person or business to re-broadcast that program on telephonic MOH. The broadcaster may not promote such unlawful use and is not an owner who has any lawful right to grant MOH usage permission. They do not hold the ownership of the title and have no right to license use in any way. Those who plug radio broadcast into their telephone MOH without first obtaining paid permission through the owner's agents (ASCAP, BMI or SESAC) are stealing unlawful use and may be prosecuted under existing federal laws.
Unbeknownst to most people, a second copyright exists when it comes to licensing use for telephonic MOH. A piece of music, as mentioned above, is copyrighted and may be licensed for use as a music title and is understood to be a combination of melody, harmony and, where applicable, lyrics. However, neither radio listeners nor MOH listeners could hear this music unless it was recorded - providing a delivery medium whereby the "music" becomes a "performance." As mentioned elsewhere, in countries such as the US, where said copyright laws are enforced, nearly every recording of a song title holds its own "mechanical copyright."
For most of the 20th century, music was recorded in studios, produced by record company executives, producers, arrangers and engineers who were hired to deliver the artist's finished recordings for mastering and duplication - for sale on the varied mediums: 78, 45 and 33 RPM vinyl, reel-to-reel, 8-track tape, cassette and compact disk. To protect their investment, the record company's (or their production replacement in the 21st century) obtain a mechanical copyright in order to protect and control the recording with which they derive usage and sales income. (For those still uncertain of the difference between "song title" and "mechanical" copyrights, consider the Capitol Records lawsuit for copyright infringement against Nike some 20 years ago. Nike legally obtained permission to use the Beatles song title "Revolution" from the title's owner, Michael Jackson. They used the Capitol Records owned recording of the Beatles' performance, but failed to obtain and pay for permission and use. Capitol Records sued and prevailed because Nike ONLY had a license to use the title and did not have a license to use the mechanical recording.)
Therefore, persons or businesses wishing to play music that falls "in the public domain" are still legally required to obtain permission to use the mechanical recording of this music, from the mechanical copyright holder. And where the use is of copyrighted music, the same applies. In all cases, before a song title may be broadcast on a telephone MOH, said use must be approved and licensed from BOTH the "song title" copyright owner (if it is NOT in public domain) and the "mechanical" copyright owner.
It is generally known within the on-hold industry that some performance rights societies, with regional offices and staff, both monitor and prosecute persons and businesses that infringe on the copyright of title holders in their libraries. ASCAP and BMI are both aggressive about this, from time to time. It is not known whether any record companies are currently or actively monitoring and prosecuting violators of their mechanical license. Be advised that their current disinterest or inactivity regarding protection of their rights should not be misunderstood as permission to infringe on their mechanical copyrights.
- - - - - - - - - - - - -
The author of this informative article (above) is slightly misleading in using the word “title” when he means “song.” He is correct that songs can be copyrighted. But song titles cannot be. That is, the Henry Mancini/Johnny Mercer song “Moon River” is copyrighted; however, the title “Moon River” is not copyrightable. Anyone can legally write a completely different melody with completely different words and name it “Moon River.” That new composer/lyricist can copyright the words and music of his new song but he cannot copyright the title.
In addition to the Paul McCartney song "Yesterday," ASCAP lists another 95 songs with that same name/title.
Bulletin 34 from the U.S. Copyright Office clearly summarizes U.S. Copyright law when it says, “Names, titles, and short phrases or expressions are not subject to copyright protection. Even if a name, title, or short phrase is novel or distinctive or if it lends itself to a play on words, it cannot be protected by copyright." www.copyright.gov
See "Francis, Day & Hunter Ltd. v. Twentieth Century Fox Corp" in Wikipedia regarding a title not being copyrighted.
- - - - - - - - - - - - -
"musical composition" is the term used by the copyright office to refer to the written (or tabulature) non-recorded version of a musical work. "Mechanical recording" is deprecated in favor of "musical recording".
Additional references: [1]
