Copyright and Royalties with Mark Quail

Below is an interview with Mark Quail, a lawyer based in Toronto, on copyright and royalties for songwriters.  Though the answers are specific to Canada, the same considerations apply worldwide as you produce your music and collaborate with others.

Mark’s legal practice is restricted to Entertainment and Media related matters, particularly music law and software/computer applications law.

What rights do you automatically have for your music, and what you might need to register for to protect?

In Canada, all rights related to copyright stem from the Copyright Act (the “Act”).  Once you have written an original song (ie you have not sampled someone else’s work, or lifted elements like melody, harmony and rhythm from another musical composition) and you have either created sheet music for the work or otherwise “fixed” that work on tape or a digital file, and assuming you have met the citizenship qualifications, then there’s a series of what are called “economic rights” that automatically present themselves to you:

1.  you have the sole right to produce or reproduce the work or any substantial part thereof in any material form whatever, to perform the work or any substantial part thereof in public or, if the work is unpublished, to publish the work or any substantial part thereof (S. 3.(1) of the Act);

2.  to produce, reproduce, perform or publish any translation of the work (S. 3.(1)(a) of the Act);

3.  to convert it into a dramatic work, by way of performance in public or otherwise (S.3.(1)(c) of the Act;

4.  to make any sound recording, cinematographic film or other contrivance by means of which the work may be mechanically reproduced or performed (S.(1)(d) of the Act;

5.  to reproduce, adapt and publicly present the work as a cinematographic work (S. 3.(1)(e) of the Act;

6.  to communicate the work to the public by telecommunication (S. 3.(1)(f) of the Act);

7.  to rent out a sound recording in which the work is embodied (S. 3(1)(i) of the Act; and lastly

8.  to authorize any such acts (post script of S. 3.(1). 

You do not need to register your work to receive copyright protection in Canada but if you do there are important benefits that are derived from registration such as proof of ownership, notice to infringers and use of the copyright certificate as courtroom evidence.  To register there’s a form to complete with the Copyright Office and a fee to submit.  Applications for registration can be made online these days.

What considerations should you have when collaborating with others (writers, other artists/performers), or releasing something on a compilation album?

Collaborating with other writers:  I’m of the opinion that clear communication about what the splits should be at the end of the session are essential.  Do not leave the writing session without a written document signed by all participants setting out the name of the work and the shares that each is going to receive.  “How do you decide who gets what?”, you might ask.  That’s up to the participants if they anticipate anything but an even split between all parties.  It’s true that there’s convention that says the composer(s) of the music of the music gets 50% and the writer(s) of the lyrics gets the other 50%.  But this is not law.  The split could be anything the parties decide.  I asked Nile Rodgers one time how the songwriters in the big leagues share the credit.  He said he prefers an even split between all participants.  His comment was to the effect that it could be the smallest contribution that makes the song a hit like simply adding “Yowsah, Yowsah, Yowsah” to the chorus.  So he preferred the “equal share” route.

Releasing tracks on compilations?  Again, set out the terms for the deal in writing.  Include, among other things, the royalty rate, territory, the Term (ie length of time you’ll permit the track to be sold as part of the compilation), whether there are packaging deductions to be assessed in calculating the royalty (get packaging deductions excluded for digital sales).

What’s the general process if you do find someone using your work without permission?

I’d suggest contacting a lawyer right away if you want the infringement to stop.  There’s a whole host of variables when such a thing happens (like the territory where the server hosting the infringing work is based, maybe there’s a major label in the picture, whether you already have the copyright registration done, etc).  The lawyer in your home jurisdiction will be able to guide you, it’s not something you can do “at home”.

About Mark:

Mark’s legal practice is restricted to Entertainment and Media related matters, particularly music law and software/computer applications law. Whether your business involves sound recordings, music publishing, digital music rights, club & concert performances, merchandising, sponsorship or computer program development agreements, he can help.  Find him at markquail.com