Does right to integrity apply?

Subject: RE: Does right to integrity apply?
From: Jim Dixon
Date: 10 Dec 08 - 01:01 PM

Thanks to those who pointed out that the "compulsory license" I described in my first post (although I didn't use that term) doesn't apply until AFTER the song has been published. That's an important point that I didn't know or consider. And it looks like I was wrong in my belief that a compulsory license entails a license to change a song as much as you like.

I am happy to see that there are people on Mudcat who seem to understand the nuances of copyright law better than I do. Maybe I should have kept my mouth shut, so to speak. I hope I didn't mislead anybody.

I'm surprised that we haven't heard again from Mysha, who started this thread.

Subject: RE: Does right to integrity apply?
From: Richard Bridge
Date: 10 Dec 08 - 04:46 AM

Nerd puts it well. In the UK the PRS routinely sue premises for performing songs in public (usually by the use of records or broadcasts) without a PRS licence, and the principle is exacly the same as if the music were performed live.

In the UK the expression "derivative work" is not used with the same mantra-like pattern as in the USA but I think the UK law on adaptations comes to much the same as the US on derivative works. It leads to a big fuss sometimes when a perfomer thinks he is performing a traditional work, and the PRS says that a licence is needed to perform a copyright arrangement...

Subject: RE: Does right to integrity apply?
From: JedMarum
Date: 09 Dec 08 - 11:37 PM

Well Nerd - thanks for the info. I believe that is what Richard Bridge is saying above, as well.

I cannot imagine how permission to perform "cover" songs in public would ever be enforced - and I know it is ignored on an almost universal scale. So much of music performance flies beneath the radar ... and I suspect that is almost the rule for the Folk-style genres.

I don't see the usefulness of requiring permission for performance. It seems unreasonable and impossible to enforce. As a songwriter it is not a protection I seek.

Protections against material changes to my work, for someone else publishing it - that seems appropriate, and protection against loss of my intellectual property seems appropriate. And I feel comfortable that publishing and copy right laws provide those protections.

Subject: RE: Does right to integrity apply?
From: Nerd
Date: 09 Dec 08 - 07:15 PM

Jed,

technically, a person DOES need your permission to perform your songs in public...but by joining a PRO (ASCAP, BMI, etc), you assign the PRO the right to give that permission and collect the requisite fee for you.

Dick, that's not quite true. Copyright has to do, literally, with the right to make copies. Permissions and payment are just the mechanics of how those rights are administered.

There is indeed something to stop you from changing a song: in accepting a compulsory license to record a song, you agree not to change the song's "fundamental character." You also agree that your work does not qualify as a derivative work to be copyrighted itself. If a songwriter felt that you HAD altered the song's fundamental character, he could sue you for infringement...but it would cost everyone money and do no one any good, so this rarely happens.   

It's unclear what you're saying about Dylan, but whatever it is I think you've misunderstood the law. It's not true that "if it's changed enough you can copyright it again."

What Dylan did when using traditional material was to copyright his own songs based on the fact that the traditional material was not subject to copyright because it was in the Public Domain. So only the parts he wrote are protected, not the traditional parts; they are by definition excluded from his copyright.

If Dylan copyrighted the same song twice in two different versions (is this what you're saying?) then the second is a "derivative work," and as such the second copyright only protects the new bits. The older bits are still protected by the copyright on the first version, and their protection will expire when it expires. This is an important distinction, because otherwise you could extend the length of copyright on songs indefinitely just by adding more verses and "copyrighting all over again."

Subject: RE: Does right to integrity apply?
From: dick greenhaus
Date: 09 Dec 08 - 05:58 PM

Copyright has to do with permissions and payment. Once a song has been sung, there's nothing to stop a singer from changing it--in fact, if it's changed enough, the singer can copyright it all over again. See Dylan, among others.

Subject: RE: Does right to integrity apply?
From: JedMarum
Date: 09 Dec 08 - 05:53 PM

As for singing other people's published material without permission, no matter what the legal issues are - it certainly is the common practice around the world. And as a songwriter it is a practice I support.

I receive written requests from folks who ask if they can sing my song in some show or just regularly with their band. I always say yes, thanks for asking - and you don't actually need my permission if you're not publishing it. It's nice people ask. I'm always happy to hear someone is singing my songs - but I don't feel it is necessary.

I've had a few requests from people who want to use my songs or recordings in local films or performances that essentially "not for profit." Again I always say yes. I always write a note that says they can use the song, and that note becomes an agreement from me, outlining the use of the material, sort of informal contract. I am sure that others have done so without asking, for these type of projects - and they've posted Youtube videos from shows. I do not discourage this, even though a few of the videos are not ones that I would put up!

The few projects that people have asked for license to use my music that do generate income I have always been contacted early on and asked to sort out the licensing - and agreed for payment.

Subject: RE: Does right to integrity apply?
From: JedMarum
Date: 09 Dec 08 - 05:45 PM

I have always felt honored when someone else plays or records my songs. Maybe I've been lucky that no one has done anything but good to them, or maybe I'm too biased to tell the difference!

Subject: RE: Does right to integrity apply?
From: GUEST,larry reynolds
Date: 09 Dec 08 - 04:54 PM

As a songwriter who is not wealthy, very well known, or particularly reticent to speak my mind (probably resulting in one or more of the previous two traits, I will say that it is difficult to hear one of your tunes butchered either live or in recording media.

Most of the folks who have recorded or performed my songs have done a good job, but once in a while I have had somebody just decide they wanted to change my lyrics, just 'cus.

Most distressing.

Larry

Subject: RE: Does right to integrity apply?
From: Richard Bridge
Date: 09 Dec 08 - 04:46 PM

Murray, there can be few aspects of asininity so egregious as the assumption that the law does not apply simply because you wish it did not.

You need to look a sections 106(1) 104(6) 106(4) 106A and 114(c) of Title 17 (USA). Your ignorance if not your stupidity might thereby be alleviated. You might also consider the Berne convention, if that would not be inconsistent with your insularity.

Further, yes, of course composers or their successors in title have often objected to the reproduction or performance of their works. How else would they derive money? Of course the right to enforce thieir rights and collect money may be assicned or licensed, in which case teh assignee or licensee (eg the Harry Fox Agency) may enforce and collect.

Jed, you too need to consider S 106(4) - but at least your words were not asinine.

Nerd, thank you for the reference to S 115(2). We have not got an equivalent in the UK. I should have emembered it but it is a long time since I read Title 17 from end to end (as I have done) or indeed Nimmer (the premier US copyright textbook) as I have also done - and indeed Nimmer is now three volumes longer than when I last read all of it!

Subject: RE: Does right to integrity apply?
From: Murray MacLeod
Date: 09 Dec 08 - 03:30 PM

the idea that permission is required from the composer of a published song to perform said song is so absurd, that words fail me.

I would also query that permission is required to record said song.

I know the law is an ass, but jeez, there are limits even to legal asininity ...

Subject: RE: Does right to integrity apply?
From: JedMarum
Date: 09 Dec 08 - 03:17 PM

... as I think Richard stated above, the venue is responsible for paying performance royalty fees that are collectively estimated and paid out by ASCAP and BMI and the like.

Subject: RE: Does right to integrity apply?
From: JedMarum
Date: 09 Dec 08 - 03:04 PM

I am certain that I do not need permission of the composer of a published song to perform that song in public.

Subject: RE: Does right to integrity apply?
From: Stringsinger
Date: 09 Dec 08 - 03:01 PM

Aside from the issue of the "Compulsory License", songs can be altered if
they are shown to be derived from earlier sources. In the case of a Dylan
song, or Woody Guthrie for example, many of the tunes derive from
antecedent ones. Even some of the subject matter for some of the songs
in the text that exist prior to the song in question can be altered.

Scarborough Fair, for example. The Canticle of Simon's is copyrightable
and can't be altered, but the song for the most part is in public domain as
a folk song. You could write another "Scarborough Fair" and not lose in court.

Folk music by definition requires that the songs change, mutate, or are
rewritten to accommodate later times historically. These become "variants"
of a possibly original text that has become anonymous or in public domain.

Frank

Subject: RE: Does right to integrity apply?
From: Spleen Cringe
Date: 09 Dec 08 - 02:52 PM

If you love it, let it go...

Subject: RE: Does right to integrity apply?
From: jeffp
Date: 09 Dec 08 - 02:37 PM

No. Publishing a song involves putting it into tangible form.

Subject: RE: Does right to integrity apply?
From: Jim Dixon
Date: 09 Dec 08 - 02:18 PM

Question: Is performing a song in public equivalent to publishing it?

Subject: RE: Does right to integrity apply?
From: Murray MacLeod
Date: 09 Dec 08 - 02:10 PM

Richard, I recollect that you said once before that permission would be needed to record a song and put it up on Youtube.

No layman is going to read through the whole of that Copyright Act you linked to, so what I would like to ask is, has there ever been a Test Case in the UK where a composer has denied a performer's request to perform a song or is the whole thing a bit, well, "theoretical" ?

Subject: RE: Does right to integrity apply?
From: Nerd
Date: 09 Dec 08 - 11:54 AM

Caveat: previous posters here are correct that the compulsory license only kicks in once a recording of the song has already been published. I can't, for example, go find the first song Paul Simon copyrighted and record it, if it has never been recorded before. This restriction has the effect of forcing the first person ever to a record a given song to get direct permission from the composer--unless he or she IS the composer. Once that first recording is published, others can record it simply by paying the licensing fee.

Subject: RE: Does right to integrity apply?
From: Nerd
Date: 09 Dec 08 - 11:49 AM

By the way, the original question on "right to integrity" is covered in this section of the code:

"A compulsory license includes the privilege of making a musical arrangement of the work to the extent necessary to conform it to the style or manner of interpretation of the performance involved, but the arrangement shall not change the basic melody or fundamental character of the work...."

Obviously, there is room for interpretation as to what changes the fundamental character of a work. So the answer in the US seems to be...right to integrity applies only to a limited extent.

Subject: RE: Does right to integrity apply?
From: Nerd
Date: 09 Dec 08 - 11:45 AM

Richard,

The U.S. has what is known as a "compulsory mechanical license" in its copyright law for "nondramatic musical compositions." This means that the owner of a copyrighted song is required by law to permit others to record that song. In return, those who record the song are required to

1) notify the author before distributing copies

and

2) pay a licensing fee set by the Copyright Royalty Judges

Most of the fees are administered by the Harry Fox Agency in the US, so in practice as a recording artist you usually deal with them rather than the composer.

You can see the section of the copyright code that covers this,

here

Note that this compulsory license applies only to recordings, not public performances. Public performances are controlled by a different process. Usually, composers WANT their works to be performed publicly, and want to get paid for that. So they join a Performance Rights Organization such as ASCAP or BMI. That organization then administers the performance fees, which are generally paid by the venue, not the performer. So the club where I sing a Bob Dylan song is paying ASCAP or BMI an estimated blanket fee annually, and in theory Bob Dylan is getting a piece of that.

Subject: RE: Does right to integrity apply?
From: jeffp
Date: 09 Dec 08 - 11:45 AM

Because it isn't. We have a different law here.

Subject: RE: Does right to integrity apply?
From: Richard Bridge
Date: 09 Dec 08 - 11:18 AM

Er - Jed it certainly is in the UK, and why do you say that it is not in the USA?

Subject: RE: Does right to integrity apply?
From: JedMarum
Date: 09 Dec 08 - 09:32 AM

Once a song is published, a composer's permission is NOT required for someone else to perform it.

Subject: RE: Does right to integrity apply?
From: AllisonA(Animaterra)
Date: 09 Dec 08 - 09:30 AM

As far as recording goes, the law is the law. But what about just performing it?

Of course, different song writers have vastly different opinions. Recently I have had several conversations with and about songwriters ranging from, "All songs are to be shared, and once someone else sings it, they can do what they want with it," to "You can sing my song, but please give me the courtesy of singing it as I wrote it. I know what I wanted to say in the song, and that's how I want it to be heard and known".

Both are valid, I think. I agree with dwditty that a simple email is a respectful way of communicating with the songwriters.

Allison

Subject: RE: Does right to integrity apply?
From: JedMarum
Date: 09 Dec 08 - 09:05 AM

In the US, a simple explanation - as Peace indicated above says that once a composer has published a song (that is, made available for public sale more then 2000 copies) then anyone else can publish the song by securing a mechanical license (paying the per track fee of about 90 cents/track). Permission is NOT required. However; you are not free to change the song. I know in practice, minor changes are quite common - but material changes to another person's require written permission.

Subject: RE: Does right to integrity apply?
From: Richard Bridge
Date: 09 Dec 08 - 08:36 AM

Since the UK act has no compulsory ecording right, then, subject to the terms of MCPS membership the author can prevent any reproduction or performance he wishes, on whatever grounds he likes (although injunction is an equitable remedy).

Subject: RE: Does right to integrity apply?
From: Darowyn
Date: 09 Dec 08 - 04:17 AM

From the UK act, and to cut pages of definitions short, a writer or composer has two moral rights.
1. To be recognised as the author of the work.
2. To prevent any derogatory use of his or her work.

This is the definition of derogatory:-

"the treatment of a work is derogatory if it amounts to distortion or mutilation of the work or is otherwise prejudicial to the honour or reputation of the author or director."

Whether anyone would actually go to law about the order of verses is doubtful- would it amount to distortion or mutilation?
It would cost a lot of money to have this decided in court.
I have only ever heard of this provision used to forbid the use of songs for advertising products which a writer would not want to be associated with, or for use in political campaigns to which the writer is opposed- thus damaging his or her reputation.
Cheers
Dave

Subject: RE: Does right to integrity apply?
From: GUEST,Peace
Date: 09 Dec 08 - 01:13 AM

"Does the writer of a song have an exclusive negative right to perform it? That would make all covers copyright violations."

Song writers/authors have what was called (and may still be called) 'first recording rights'. However, after a writer has recorded AND released a song, it can be done by anyone provided the royalties are paid. I don't think that law has changed. It can be done by another provided the author signs away the right to record the song first.

Subject: RE: Does right to integrity apply?
From: dwditty
Date: 09 Dec 08 - 12:03 AM

Well, first off, the whole business is run by lawyers, so you know there is no absolute answer to all this - leaving room for litigation guarantees future work. Yes, I am cynical about this topic.

That being said, I licensed several songs when I made a cd (self produced). I found most songs on songfile.com (Harry Fox Agency), and it was a simple matter to click, enter credit card info, etc, and I printed the license. Some songs were not listed on songfile, and I had to go to the publishers directly. No problems, except trying to license Simple Twist of Fate which was published by Ram's Head Music, which subsequently disappeared. When I finally found Dylan's publisher, I licensed the song, and their agreement stipulated that I had to send a copy of the finished CD so they could verify that I did not change the song.

So I guess the answer is....'It depends."

I had recorded a song, but could not find any information on the publisher and, therefore, could not license it....it never made it on the CD.

The bottom line is, if you are going to use a song, you must license it. A friend included some music (Springsteen, I think) in a home video of her kids. She put it on Facebook, and was told within days that she was in violation of copyright laws and to remove it immediately. She was mad, but she had to comply as she did not have a license to use the music.

Obviously the laws were written long before the internet and the ability for people to easily produce versions of songs and display/perform/sell/etc. them publicly. WHile the writer certainly deserves to be paid for his/her work, it seems the system need to change.

Hey, here is an idea. Since everyone has or has access to email, allow the person to wish to use the music in some way to communicate with the artist and determine if and what the charge to do so should be. Oh wait, I forgot about the lawyers....damn, it will never fly.

dw

Subject: RE: Does right to integrity apply?
From: Sandra in Sydney
Date: 08 Dec 08 - 11:01 PM

* Can a writer forbid the singing of his songs?
* Can a writer forbid the singing of altered versions of his songs?

I knew a songwriter who would have loved to forbid a group to sing one of his songs as they re-arranged the verse order, destroying the sense! He asked them several times not to change the sense, to no avail. Adding insult to injury when they booked him at their club, they asked if he was planning to sing that song when introducing him. When he said no, they said, Good, we want to sing it!

I recall a guest adding to a thread, saying s/he was the author of a song on the thread & IT WAS WRONG & mustn't be sung that way. The only change I could see was a simple "can/may" type word substitution, the kind of thing I've heard in many a singing session, or even on CDs - 2 by singer/songwriters who changed words in their own songs

sandra

Subject: RE: Does right to integrity apply?
From: Richard Bridge
Date: 08 Dec 08 - 10:07 PM

The UK used to have a scheme somewhat similar to the USA's compulsory licence for re-recording copyright works. It was under S. 8 of the Copyright Act 1956. It no longer exists and there is no similar scheme under current UK law.

It applied to a work or adaptation of a work and permitted the recording of that work or a similar adaptation and thus did not cover the making of material alterations.

If the MCPS administers a work it may be possible to get a licence to record that work from them. The standard MCPS licence does not permit the making of substantial alterations to a work and some at least MCPS members reserve the right of first recording so that no MCPS licence to record the work is obtainable until after the first recording is made with the prmission of the copyright owner or his licensee.

Subject: RE: Does right to integrity apply?
From: Richard Bridge
Date: 08 Dec 08 - 09:55 PM

For UK purposes

As to moral rights see sections 77 and onwards of the Copyright Designs and Patents Act 1988 as amended

here

Subject: RE: Does right to integrity apply?
From: Barry Finn
Date: 08 Dec 08 - 09:48 PM

My understanding in part is that the copyright/owner has the right to deny any recordings or use of their material(s) but once they give permission for the first time then others are free to record or use as long as they abide by the above stated guidelines. Feel free to correct me if I'm off on this one small part of a whole can of worms.

Barry

Subject: RE: Does right to integrity apply?
From: GUEST,Val
Date: 08 Dec 08 - 05:31 PM

Disclaimer: my understanding is as a Yank who is not a lawyer - both of which mean I'm probably wrong.

If you change "CAN" to "MAY" in the above, I believe the answer is "Yes" to all. Copyright law says that someone who creates an original work, and who places this work in tangible form (tape recording, writing, etc - something that exists outside the mind of the creator & the ears of the audience), then the creator has exclusive and total right to permit or deny ANY use of ANY PART that work. (Note that if the "creator" borrowed a part - such as setting new words to an old tune - then his/her rights only apply to the part which he/she created.)

There are a few VERY LIMITED exceptions detailed in the "Fair Use" regulations (such as excerpting a small piece for editorial comment or review, or some educational uses in formal scholastic settings).

Now, CAN a composer enforce such restrictions? Well, that's a whole 'nother issue. And on the third hand (so to speak) is the debate between "legal" and "correct" in the structure and enforcement of laws.

Many composers probably do not feel the need to maintain absolute control over their creations, and will happily allow others to perform the songs. It's a common attitude, but by no means universal.

The Creative Commons organization was formed to facilitate ways in which composers can communicate to users what things the users may freely do with the composition, and also to facilitate communication between users and composers so the users can gain permission for greater use of the composition. (For example, a composer could say "I grant you permission to perform this song for free, but before you perform it for pay contact me for permission and we'll work out a contract.") Note that (in my understanding) Creative Commons does not create, deny, nor enforce any legal rights - they just make it easier for copyright holders to manage their own legal rights without resorting to the sometimes Draconian and even Totalitarian policies of Industry.

Of course, everything you have just read may be wrong. Consult a qualified legal counsel if you're concerned.

Subject: RE: Does right to integrity apply?
From: Jim Dixon
Date: 08 Dec 08 - 05:30 PM

I'm guessing you are in the UK. I only know a bit about American copyright law, and I know that in the US you DON'T need the copyright holder's permission to record a song, provided you are willing to pay the "statutory" royalty rate of 9.1 cents per copy. (That's assuming the song is not longer than 5 minutes. See ASCAP.com for details.)

Of course large record companies always try to negotiate a rate that is lower than that, and in exchange for the low rate, they might agree to certain conditions. Any negotiated rate should be part of a written contract.

Folk musicians who are self-publishing a CD, and dealing in much smaller quantities, usually don't bother with a contract. Say you plan to make 500 copies of your CD, and it contains one copyrighted song written by someone else. You could just pay the songwriter $45.50 up front, and then you wouldn't need his permission.

As a courtesy, you should ask anyway, and as a courtesy, the songwriter should say yes (in my opinion). Then you send the songwriter a check along with a copy of your finished CD, as soon as it's available. (The check is required; the CD is customary.)

As long as you send the check, you have fulfilled your legal obligation, and the songwriter has no legal basis to object, even if you make a mess of the song.

Of course if a songwriter thinks you made a mess of his song, he's free to say so, but then he's acting as a critic, like anyone else, not as a songwriter with special privileges.

Subject: Does right to integrity apply?
From: Mysha
Date: 08 Dec 08 - 02:34 PM

Hi,

In this thread, about improving the lyrics of Isle of Hope, Guest with no name claimed: No one has the liberty to change the authors composition without licence no matter the reason

Is that correct (apart from the interpretation of the rules of punctuation)?

Does the writer of a song have an exclusive negative right to perform it? That would make all covers copyright violations. Or is this right given up when registering the song with one of the music rights management organisations? But then, what Guest with no name refers to here, is right to integrity, which is a moral right, and therefore usually can not be signed away.

* Can a writer forbid the singing of his songs?
* Can a writer forbid the singing of altered versions of his songs?
* Is the singing of a copyrighted song forbidden unless the writer allows it?

Most folk writers seem to regard it as a complement if their work is assumed to be traditional, yet, fifty to a-hundred years after the death of the writer is a long time, and a lot of folk music would be in copyright and could be restricted that way.

                                                                Mysha