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Published on August 27th, 2014 | by Millennium Magazine Staff

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The Next Big Hit

Protecting and Exploiting (In a Good Way) Your Musician-Client’s Intellectual Property

By William (Will) Bee Ravenel Lewis

South Carolina has produced or been home to numerous nationally and internationally known recording artists and songwriters including Dizzy Gillespie, James Brown, Chubby Checker, Eartha Kitt, Maurice Williams (of the Zodiacs) and, more recently, Hootie and the Blowfish, the Marshall Tucker Band, Edwin McCain, Jump Little Children, Cravin’ Melon, Quiana Parler and Danielle Howle. Like all aspiring artists, each of these acts had to start the rise to fame somewhere.

For the singer/songwriter, the rise to stardom typically begins with dreaming up lyrics and an accompanying melody. The artist then captures those two components on something as simple as a napkin or the insert of a matchbook to something as modern as a laptop or smart phone application. One way or the other, once those original lyrics and/melody have been “fixed” by the songwriter in “any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device,”[i] that songwriter has created a potentially valuable piece of property. That property is federally protected and may, in the future, generate numerous streams of income.

What happens when that next great singer/songwriter (for purposes of this article, “Felicia Silverfolk”) arrives at your office with a sheet of paper in one hand covered with lyrics, chords and melodies representing potentially the next blockbuster song and a thumb drive in the other hand containing a recording she made of herself singing the song? She begins asking you for broad advice as to what she owns, how she can profit from what she owns and where she goes from here as a musician. This article addresses these often complex questions and provides guidance as to when a general practitioner should perhaps seek assistance from a lawyer whose practice centers around such issues.

What does Ms. Silverfolk own and how does she initially best protect her ownership interests?

 Ownership

Ms. Silverfolk is the proud owner of two separate pieces of intellectual property. Title 17 of the United States Code, also known as “The Copyright Act,” provides the foundation for Ms. Silverstone’s ownership rights, and for generating various streams of income from her creations. We purposefully refer to “creations” in the plural because Ms. Silverstone owns two distinct pieces of intellectual property, each protected by federal copyright law. The sheet of paper she has presented you with is protected by way of 17 U.S.C. § 102(a)(2), in that copyright protection subsists in “musical works, including any accompanying words …” The recording on the thumb drive she has presented you with is separately protected by way of 17 U.S.C. § 102(a)(7), in that copyright protection additionally subsists in “sound recordings.”

Federal registration

A common misconception is that Ms. Silverfolk must actually do something further than she already has (writing down the words and music and recording the same) to actually “have a copyright” for her works. Laypersons often confuse a nebulous notion of “copyrighting” with the actual act of “federally registering the copyright.” In other words and by way of example, this author often hears the question, “What do I need to do to copyright my song?”

As alluded to in the introduction, pursuant to 17 U.S.C. § 102(a)(2), as soon as Ms. Silverfolk wrote down the melody and accompanying words, she became the proud owner of a copyright in the same. As soon as she recorded the melody and accompanying words, pursuant to 17 U.S.C. § 102(a)(7), she became owner of a separate copyright in the sound recording. The better questions thus would be, “What do I need to do to protect my ownership interest from potential infringers, whether such infringer does so intentionally or unintentionally?[ii] Do I need to federally register my copyrights?” The latter question, if asked at all, is often followed with “Can’t I just put the song in an envelope and mail it back to myself keeping the envelope sealed, to prove when I wrote the song (a/k/a “the poor man’s copyright”)?

“The poor man’s copyright,” as it is often called, may end up providing some form of evidence in a subsequent suit as to when Ms. Silverfolk first created the work that is alleged to have been infringed upon. However, it is not unheard of for an alleged infringer’s expert to testify as to an “after the fact” alteration of the envelope by your client to make a false claim. On the other hand, federal registration provides simple, inexpensive[iii] evidence of the timing of creation, and more importantly, is a prerequisite to filing a copyright infringement lawsuit in federal court—the only court with jurisdiction over such a claim.[iv]

It is recommended that Ms. Silverfolk not wait until she believes someone has infringed upon either her musical composition and/or sound recording before federally registering her copyrights. If she registers prior to an alleged infringement or within three months of her publishing[v] the work, and if successful in her suit, she may be entitled to statutory damages “in a sum of not less than $750 or more than $30,000” per infringement,[vi] and possibly her attorneys’ fees,[vii] as opposed to simply actual damages and recoupment of the infringer’s profits, resulting from waiting until after learning of the infringement to register the work.[viii]

What ownership rights does she have and for how long?

 Musical composition

 As soon as Ms. Silverfolk captured her music and lyrics on paper, she proudly vested herself with various exclusive rights with respect to her musical composition. They include the exclusive right to do and authorize (by way of licensing or transfer of copyright to third parties) 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)  … to perform the copyrighted work publicly; and

(5)  … to display the copyrighted work publicly.[ix]

Sound recording

Pursuant to Section 114 of Title 17 U.S. Code, of the five rights enumerated above with respect to Ms. Silverfolk’s musical composition, only the first three enumerated rights apply to her sound recording copyright.[x] In other words the owner of a sound recording copyright has no general public performance right nor does she have a “display” right, as a sound recording is “heard,” not “displayed.” However, Section 106 of Title 17 sets forth one additional exclusive right for owners of sound recording copyrights, and that is “in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.”[xi]

Duration of exclusive rights

As to the length of Ms. Silverfolk’s exclusive ownership rights, with respect to her musical composition copyright, the clock began ticking when she captured the music and lyrics on the sheet of paper. With respect to her separate copyright in the sound recording, the exclusive ownership rights clock began ticking when she actually recorded her musical composition. Unless she transfers ownership of her copyrights to a third party in compliance with 17 U.S.C. § 204(a),[xii] her ownership endures for the rest of her life plus the 70 years subsequent to her death. After those 70 years, her works enter the public domain and her heirs or transferees lose their exclusive rights enumerated above. Therefore, it is during those terms of copyright ownership that she (or her heirs or transferees) must capitalize upon the exclusive rights that come with such ownership.

Exclusive rights and resulting streams of income

 Ms. Silverfolk’s exclusive rights specified in 17 U.S.C. § 106 provide the foundation for the streams of income that may be generated from her musical composition copyright and the copyright in the sound recording of her musical composition. Either selling or licensing the exclusive rights to third parties creates those streams of income. You may be called upon to explain to Ms. Silverfolk how, from a practical standpoint, she may capitalize upon her rights and assure that the streams of income generated flow into her coffers.

Public performance royalties for musical compositions

As a result of Ms. Silverfolk’s exclusive right to perform her copyrighted musical composition publically, 17 U.S.C. § 106(4), she has a right to collect royalties generated as a result of any person or entity performing her song publically, whether such performance is by way of a live band performing a “cover” of her song, a radio broadcast of her song, or a re-broadcast of her song by a commercial establishment over its sound system to its customers.

Ms. Silverfolk most certainly will want to know how such royalties practically will end up in her pocket. Will she have to negotiate a license with every artist, radio station, website, television station, and restaurant/bar/convenience store that wants to broadcast her beautiful musical composition to the public? Most certainly she will not. Most importantly, she needs to join one of two performance rights societies (a/k/a PROs) [xiii] responsible for collecting public performance royalties and distributing them to their members. There are actually three PROs in the United States—The American Society of Composers, Authors and Publishers (ASCAP),[xiv] Broadcast Music, Inc. (BMI)[xv] and SESAC, the latter being invitation only.

Unless Ms. Silverfolk has signed a publishing deal with a music publisher (discussed below), she will want to form a simple publishing company such that when she registers to become a member of BMI or ASCAP, she will complete two separate registrations: one as a music writer and one as a music publisher. This is because when these PROS collect public performance royalties, they always, after deducting administrative fees, allocate 50 percent of the funds to the publisher and 50 percent to the writer of the song, even if the publisher and writer are one in the same! Such allocation makes more sense in the context of a writer entering into a publishing deal with a publishing company. The PROs want to make sure that regardless of the writer’s deal with the publisher, the writer is still getting at least half the proceeds generated from the public performance and will send the “writer’s share” directly to the writer, as opposed to the publisher, under almost all circumstances.

The PROs typically collect these public performance royalties by way of blanket licenses issued for a fee to airlines, restaurants, bars, retail stores, amusement parks and other similar establishments, and by negotiated payment from radio and television broadcasters and the like. For example, if a new bar opens and wants to have live bands covering other musicians’ songs, a smart bar owner will purchase a license from all three PROs that will pretty much guarantee any song publicly performed at the bar is licensed either directly through one of the PROs previously mentioned or via foreign affiliates of the PROs previously mentioned. Even if the establishment merely wants to play recorded songs over its loudspeakers, if it meets a certain square footage and number of speakers requirement described in detail in Title 17, it must obtain these same blanket licenses.[xvi]

Therefore, Ms. Silverfolk may concentrate on her art of writing and recording music and leave it to her chosen PRO to collect and distribute to her the share of public performance royalties to which she is entitled. How her share of royalties is calculated by her PRO and distributed to her is beyond the scope of this article, but suffice it to say it is for the most part proprietary, extremely complex and far from precise (until Ms. Silverfolk reaches the level of a star where it becomes much easier to capture specific instances of her song being performed publically).

Public performance royalties for digital sound recording broadcasts

If Ms. Silverfolk intends to market for sale and/or broadcast her recording of her musical composition,[xvii] she needs to make sure she is well-positioned to collect royalties generated due to her exclusive right “in the case of sound recordings, to perform the copyrighted work publically by means of a digital audio transmission.”[xviii] In other words, if her sound recording finds its way to be played on non-interactive digital radio stations such as Sirius-XM Satellite Radio,™ Pandora™ or the music stations typically found on the upper channels of digital cable television, Ms. Silverfolk, as the owner of the sound recording copyright, is entitled to an additional public performance royalty each time her song is played, over and above the royalty she gets from her PRO as the writer/publisher of the song.[xix]

To collect her digital performance royalties, Ms. Silverfolk simply needs to open an account with the entity SoundExchange (www.soundexchange.com) and register all of her songs. SoundExchange is “the independent nonprofit performance rights organization that collects and distributes digital performance royalties to featured artists and copyright holders … (of sound recordings).”[xx] SoundExchange collects negotiated fees from those who publically broadcast by way of digital transmission and then pays its registered featured artists and sound recording copyright holders such as Ms. Silverfolk.

Mechanical license fees

Let’s assume some time has passed now and Ms. Silverfolk has remained fiercely independent (not having signed a publishing or recording deal) and has sold several copies of her recording of her song. She makes an appointment with you and tells you that the local band Juicy and the Raunchies has informed her that they are planning on making their own recording of her song and selling it to their fans. Can they do that without her permission? (Recall that Ms. Silverfolk has the “exclusive right[] … to reproduce the copyrighted work in copies or phonorecords,”[xxi] so it would seem she could prevent them from doing so.)

Not so fast—Ms. Silverfolk must be made aware of Section 115 of Title 17—“Scope of exclusive rights in nondramatic musical works:  Compulsory license for making and distributing phonorecords.” Since she has already distributed recordings of her musical composition to the public, under Section 115, “any other person, including those who make phonorecords or digital phonorecord deliveries [e.g. record labels] may, by complying with the provisions of this section, obtain a compulsory license to make and distribute phonorecords of the work.”

In other words, Ms. Silverfolk, as owner of the musical composition, has the right of first publication. After that, anyone may re-record and distribute copies of her musical composition as long as the third party accounts to Ms. Silverfolk royalties due to her by statute as discussed below. Such third party may either go through a notification process to obtain the compulsory license (notification to the owner and the copyright office), or the third party may obtain what is known as a mechanical license from Ms. Silverfolk or her designated agent.[xxii] (If Ms. Silverfolk does not give permission, the third party may still revert to the notification process and re-record the musical composition anyway.)

Whether she provides a mechanical license directly to the third party or the third party goes through the compulsory licensing process, Ms. Silverfolk is entitled to statutory “mechanical royalties” for each copy made of her musical composition and for each digital sale of the subsequent sound recording by Juicy and the Raunchies containing her musical composition. Such rate, as set by Copyright Royalty Judges, is currently 9.1¢ per copy or 1.75¢ per minute of playing time for compositions five minutes or longer.

Synchronization license and master license fees

Any time a third party wishes to use Ms. Silverfolk’s musical composition in a publicly broadcast film (even something as simple as a YouTube™ video), television program or commercial, or radio commercial, the third party must obtain from her (since she is the publisher/owner of her musical composition) a synchronization license.[xxiii] There is no statutory rate for this license and the cost is subject to the relative bargaining strengths of the parties involved as well as the intended use of the musical composition. Such license can be quite lucrative for Ms. Silverfolk depending upon the level of sophistication of the entity wishing to use her musical composition and the budget such entity has for the project at hand.

If the third party seeking to use Ms. Silverfolk’s musical composition wishes to also use Ms. Silverfolk’s actual recording of the musical composition, the third party must also obtain from Ms. Silverfolk a master license for use of the sound recording since it is licensing the use of her “master” recording.[xxiv] Typically the master license costs the same as the negotiated synchronization license. In other words, if the parties agree that the synchronization license will cost $2,000, the person or entity seeking the license may expect that the master license will cost an additional $2,000. Negotiation of such licenses can be complex and requires knowledge of the prevailing rates in various media. As such, it is recommended that a general practitioner consult with an entertainment lawyer on such negotiation and related matters.

In summary, as Ms. Silverfolk owns the underlying musical composition as well as the sound recording, she is entitled to two separate and distinct royalties should someone wish to use her sound recording and musical composition in conjunction with film/television/radio. Keep in mind that in such circumstance she would also be entitled to public performance royalties every time the video or radio broadcast containing her musical composition is broadcast to the public.[xxv]  But what happens to all of these streams of income if Ms. Silverfolk decides to enter into a publishing and/or record deal?

Publishing deals and record deals

Entire books are written on both publishing deals and record deals. There are various types of publishing deals such as exclusive publishing deals, co-publishing deals and administrative deals. Beyond the extremely complex major label record deals, there are independent label deals as well as quasi-record deals such as development deals. Suffice it to say that beyond simply explaining the basics of a publishing or record deal to Ms. Silverfolk, it is highly recommended that the general practitioner consult with an attorney that has experience in negotiating these type of deals. They generally are very industry specific and typically are quite complex as the initial drafts presented to artists often have been prepared and revised many times over (based on the ever changing industry) by very smart industry lawyers who obviously have stacked the initial terms in favor of their publishing/record label clients.

Going back to our hypothetical, as Ms. Silverfolk is an excellent songwriter yet has very little contacts in the entertainment field, she may be interested in a publishing deal. At its most basic level, Ms. Silverfolk typically would be expected to transfer copyright ownership in a catalogue of her musical compositions to the publishing company and agree to write a certain number of songs exclusively for the publisher during the period that she is under contract. In return, she may receive monthly or quarterly advances of money that are recouped by the publisher by way of royalties generated from third party use of the songs in the catalogue. Once advances and other agreed upon costs have been recouped, typically the publisher and Ms. Silverfolk’s will share in future royalties 50/50.

The publisher is responsible for seeking out opportunities for Ms. Silverfolk’s songs to be “exploited”—a positive word in this sense, whether through synchronization licenses, print sheet music, procuring a recording artist to record the songs resulting in mechanical and public performance royalties, and so on. In such a scenario, Ms. Silverfolk, as the writer, may expect that when her PRO collects public performance royalties, half will go to her publisher (“the publisher’s share”) and half will go to her (“the writer’s share”).

If an A&R (Artist and Repertoire) person from a record label approaches Ms. Silverfolk and offers her a “record deal,” what may she expect? If it is a major record label she may expect to be presented with a proposed contract that could be used as a paper weight full of negotiable points that could either make her career for years to come or break her before she ever gets out of the starting gate.

In its most basic form, Ms. Silverfolk agrees to record a certain number of albums over a period of time in exchange for monetary advances from the record label. Those advances are recoupable from future royalties resulting from the sale and other exploitation of the sound recording. Once such advances are recouped, Ms. Silverfolk will also share in subsequent royalties generated from the sale or other exploitation of the sound recording. The label almost always obtains full copyright ownership over the sound recordings of the artist.

As a result of the label’s ownership of the sound recording, a film/tv producer that wants to use the sound recording in his or her film must go to the record label to negotiate terms for a master license, as previously discussed. Often, the label and the recording artist, by way of the original recording contract, negotiate a more even split regarding royalties generated from licensing as compared to royalties generated from sales. Nonetheless, the point is that as Ms. Silverfolk does not own the copyright in the sound recording, she is not directly entitled to master license royalties, but rather is only entitled to what you negotiated for her in her agreement with the record label.[xxvi]

If Ms. Silverfolk signs a record deal and, as a singer/songwriter, is expected by the label to sing her own musical compositions, either she or her publisher (if she transferred copyright in the underlying musical composition to a publisher) is still entitled to mechanical royalties generated from her record label’s pressing and distributing hundreds of thousands of copies of her sound recording of the song she wrote. The difference is that in negotiating the record deal, the record label typically will only agree to pay 75 percent of the statutory mechanical rate (remember 9.1¢ generally per song) due to Ms. Silverfolk or her publisher with respect to songs she wrote. Such is known in the agreement as the “controlled composition clause” and details regarding the same are, again, extremely complex. If not negotiated properly, Ms. Silverfolk could remain unrecouped with respect to her initial advances for many years resulting in no streams of income.

Copyright termination rights

If Ms. Silverfolk signs a typical publishing deal, most likely she will transfer ownership of her copyright in her musical composition(s) to the publisher. If she signs a record deal, she will agree either that any recording she makes is created as a “work for hire” for the label, meaning that the label owns the sound recording from its inception, or that she transfers any copyright ownership in the sound recording she may have to the record label.

By way of the 1976 Copyright Revision Act and the 1998 Term Extension Act, singer/songwriters/artists were given the right to terminate transfers of copyright in their intellectual property after a certain number of years and as long as strict provisions in Title 17 were/are followed in the process. The process, time period and various calculations differ depending upon whether the copyright protected material came into existence prior to or after January 1, 1978.[xxvii]

Since Ms. Silverfolk’s ownership in the underlying musical composition and sound recording (assuming neither were created as a work for hire) clearly came into existence after January 1, 1978, she generally will have the right to terminate her transfers 35 years after she signed the transfer agreements but no later than 40 years after such agreement, irrespective of any written agreement between her and a third party to the contrary. Notice of intent to terminate the transfer must be sent to the current owner no less than two years before the termination date stated in the notice but no more than 10 years before such date.

Conclusion

Ms. Silverfolk may, in fact, have the next mega hit in her hand as she walks into your office with her sheet of paper and thumb drive. Her first major step to success was to pay a visit to her wise counselor before venturing further into her chosen profession. The next major step in her progression toward financial success is for you to educate her on how to capitalize upon her precious intellectual property whether she takes the “indie” route of maintaining ownership over her musical compositions and sound recordings, or actively seeks out publishing and/or record deals. Ultimately, no matter the path she takes, she will do so with eyes wide open and at least a basic understanding of how her streams of income may be affected by the choices she makes.

William (Will) Bee Ravenel Lewis practices Entertainment and Creative Arts law at Lewis Law Group, LLC in Charleston. He is also an Adjunct Professor of Entertainment Law at The College of Charleston.

[i] 17 U.S.C. § 102(a) (2012).

[ii] In Bright Tunes Music Corp. v. Harrisongs Music, Ltd., 420 F.Supp. 177 (S.D. N.Y. 1976), the district court found that former Beatles guitarist George Harrison, “subconsciously” (as opposed to intentionally) infringed upon the song “He’s So Fine,” made famous by the Chiffons, by way of his hit “My Sweet Lord.” Aff’d 722 F.2d 988 (2nd Cir. 1983)(“Intention to infringe is not essential under the copyright act.”).

[iii] Generally, the cost of registration electronically via www.copyright.gov is $35.00 for a single work or for “multiple unpublished works if they are all by the same author and owned by the same claimant.” See Circular 4, United States Copyright Office, http://www.copyright.gov/circs/circ04.pdf (last visited May 21, 2014).

[iv] See 17 U.S.C. § 411(a) (2012) (“[N]o civil action for infringement of the copyright in any United States work shall be instituted until preregistration or registration of the copyright claim has been made in accordance with this title.”).

[v] “‘Publication’ is the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. The offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display, constitutes publication. A public performance or display of a work does not of itself constitute publication.”  17 U.S.C. § 101 (2012).

[vi]17 U.S.C. § 504(c)(1) (2012).There could be a potential increase in statutory damages, per infringement, to a sum of not more than $150,000.00 if the court finds that the infringement was committed willfully. See 17 U.S.C. § 504(c)(2) (2012).

[vii] See 17 U.S.C. § 505 (2012) (award of attorney’s fees in judge’s discretion).

[viii] Early in her career it may be difficult for Ms. Silverfolk to prove any substantial actual damages resulting from infringement of her work, and it may turn out that the infringer did not substantially profit from subsequent sales of the infringing work. As such, the benefit of potential statutory damages (as well as potential attorneys fees) as a result of registration prior to such infringement begs for immediate registration of the copyrighted works.

[ix] See 17 U.S.C. § 106(1)-(5) (2012).

[x] With various limitations as set forth in 17 U.S.C. § 114(b) et. seq., but beyond the scope of this article.

[xi] See 17 U.S.C. § 106(6) (2012) (emphasis added). This latter provision, as discussed in greater detail below, means, for example, that if Ms. Silverfolk’s sound recording is broadcast over traditional “terrestrial” radio, it will not generate any public performance royalties for her (however broadcast of the underlying musical composition over terrestrial radio will, in and of itself, generate public performance royalties for her pursuant to 17 U.S.C. § 106(4) (2012) (as applicable to musical compositions but not sound recordings)).  On the other hand, if the sound recording is broadcast over digital radio, such as Sirius Satellite Radio™, such will generate public performance royalties both for the musical composition under 17 U.S.C. § 106(4) (2012), and, in this instance, also for the sound recording pursuant to 17 U.S.C. § 106(6) (2012).

[xii] Such subsection requires that “[a] transfer of copyright ownership, other than by operation of law, is not valid unless an instrument of conveyance, or a note or memorandum of the transfer, is in writing and signed by the owner of the rights conveyed or such owner’s duly authorized agent.” See 17 U.S.C. § 204(a) (2012) (emphasis added).

[xiii] As set forth in the Copyright Act, “[a] ‘performing rights society’ is an association, corporation, or other entity that licenses the public performance of nondramatic musical works on behalf of copyright owners of such works, such as the American Society of Composers, Authors and Publishers (ASCAP), Broadcast Music, Inc. (BMI), and SESAC, Inc.” See 17 U.S.C. § 101 (2012).

[xiv] American Society of Composers, Authors and Publishers, www.ascap.com (last visited May 9, 2014).

[xv] Broadcast Music, Inc., www.bmi.com (last visited May 9, 2014).

[xvi] The PROs are relentless in protecting their members’ rights to public performance royalties. If the establishment does not qualify for exemption from licensing under Title 17, yet refuses to pay for a license, the establishment can be assured that the PROs will pursue litigation for copyright infringement on behalf of their members, which could easily spell financial disaster for the establishment.

[xvii] (as opposed to signing a record deal and re-recording the musical composition, which would result, in almost all cases, in the record label owning the new sound recording copyright).

[xviii] 17 U.S.C. § 106(6) (2012) (emphasis added).

[xix] Recall the same does not apply if her song is played over traditional “terrestrial” radio. In that case, she simply would be entitled to royalties due to the writer/publisher for public performance of the underlying composition.

[xx] See SoundExchange, www.soundexchange.com/about/ (last visited May 21, 2014).

[xxi] See 17 U.S.C. § 106(a) (2012).

[xxii] The largest third party designee for collecting issuing mechanical licenses and issuing mechanical royalties to owners of musical compositions is The Harry Fox Agency, Inc. It describes itself as “the premier music publisher agent for mechanical licensing in the United States.”  See  Harry Fox Agency, www.Harryfox.com/public/Publisher.jsp (last visited May 8, 2014). Ms. Silverfolk, as her own publisher, should affiliate her publishing company with Harry Fox and let them handle the administrative task of issuing mechanical licenses and collecting her royalties.

[xxiii] This requirement comes from Ms. Silverfolk’s exclusive reproduction right. See 17 U.S.C. § 106(1) (2012).

[xxiv] This requirement also comes from Ms. Silverfolk’s exclusive reproduction right with respect to her separate copyright in the sound recording. See 17 U.S.C. § 106(1) (2012).

[xxv] There is an exception to the right to public performance royalties when the film is shown at a movie theatre but discussion of the same is beyond the scope of this article.

[xxvi] The record label is also entitled to royalties generated from digital performance of the sound recording much as the way as was previously described when discussing Ms. Silverfolk’s ownership of her sound recording.

[xxvii] See 17 U.S.C. § 203 (2012).

Article originally appeared in the South Carolina Lawyer and is reprinted with permission from the South Carolina Bar.

George Fulton, photography.

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