A couple years back, “Weird Al” Yankovic did a parody of “You’re Beautiful” by James Blunt, titled “You’re Pitiful” which was to be the first single on his latest album. As always, Al had asked the artist for permission to do the song (although he does not have to, per the copyright laws, so long as he pays the royalties to the right people) and Blunt agreed – apparently Blunt was also quite pleased with Al’s parody. However, at the last second, Blunt’s record label vetoed the parody. Al’s response was to pull the song off his album and, instead, he released it as a free download on his website. Whether or not he was required to pay royalties as a result I don’t know (I assume he did), but he certainly did not make any money off the song.
Yes, he would still have to pay royalties. I seem to recall he also ran into this kind of trouble over “Amish Paradise” when Coolio’s label gave permission without asking him or something. I don’t know why Yankovic goes through this process and I don’t really get what point he’s trying to make when he does something like this.
Weird Al says in his FAQ that parodies are allowed by law, but he gets permission for two reasons:
- He wants to have a good relationship with the artists and writers he parodies.
- By getting permission he can get a songwriter credit (and the accompanying royalty) on his recordings.
ETA: The original writer gets his or her royalty as well.
As I understand it, he prefers not to make any enemies in the music world, and so he always makes it his business to request permission from the artist before going ahead with recording a parody. It would certainly be simpler for him to just go ahead and do whatever he wants without asking permission and just pay the royalties as required. Since the Coolio incident, he has made it his personal policy to speak to the artist directly – of course, with the James Blunt situation, the artist gave his blessing and it was Atlantic Records who said no, so I suppose in some cases you can’t win either way. Although again, I assumed he would have to pay royalties on the free release of the single on the 'Net.
ETA: The point by Doug K. about the songwriting credit is also a good one that I wasn’t aware of – more money for Al! w00t!
If he is doing it in order not to make enemies, it seems strange that he would release the recording for free after being denied “permission.” It’s rather a middle finger kind of gesture, isn’t it?
This part of it doesn’t make total sense to me and I have a feeling there’s more to the story. If Blunt owns the composition/publishing rights to the song, then there is no one else who has “veto” power (“veto” in scare quotes, just as a reminder that in this situation, no one has veto power.)
The issue here is whether what Yankovic is doing is a parody or a derivative work. If it’s a parody, he owes no royalties at all.
Yes, this is my understanding as well. It’s quite clear that his songs are parodies and he doesn’t owe anyone anything. As others have stated, he asks for permission because he wants to maintain goodwill. This discussion on this board also illustrates the dangers of asking permission where none is legally required. The public now thinks he is required to ask for permission and to pay royalties.
So is writing down a song in sheet music form, the same as a recording, or do they have separate copyrights? Recordings can vary greatly from sheet music. If I hear a live performance where no recording device is present and someone records and writes down the song, does that person then own the copyright to the sheet music?
In my previous example, does the ethnomusicologist own the copyright to the recording of the previously unrecorded folk song?
Is this true - aren’t music royalties owed regardless of which lyrics are sung over them?
A composition is a single work and a fixation is a fixation regardless of whether it is written down on paper or recorded. And note that the writing need not be in traditional western sheet music form. It just has to be perceivable in some way. I believe that jazz, for example, is not notated in traditional sheet music form, but there are still ways of writing it down.
If you make a recording, then the sound recording itself becomes a (derivative) work, but that it can serve as the fixation for both the sound recording work and the underlying composition work.
Each new recording is a separate derivative work, but the basic underlying musical composition rights belong to the original composer. Performers who create a sound recording have rights in the recording only (the composer also has rights in any derivative work – including a sound recording – based on the original composition).
No. Rights in the musical work belong to the composer. Someone transcribing a performance has no rights.
Just to expand on this a bit, yes, if you’re talking about a band playing live covers of other people’s music, then it’s the venue’s responsibility to pay their dues to ASCAP, BMI, or SESAC. But if you want to release a CD and sell it, and it includes covers, then you go through the Harry Fox Agency. Last time I checked, it costs the cover artist 9.1 cents per song per album pressed to do this. So if you released an album with 10 songs on it and you didn’t write one of those songs, and you made, say 1,000 CDs, you would owe $91 to the original composer. But if you wanted to release a full album of covers, sticking with 10 songs, then you owe $910, which is why you don’t see that happening too often.
The lyrics may be parodies but the underlying *music *is not. Weird Al is legally required to pay licensing and royalties for it and he has directly stated in many Q&A sessions that he pays them.
I think you may have gotten this part backwards. Last time I looked into this, the public seemed to think he just parodied whatever he wanted and were surprised that he did the extra credit work of getting the artists’ “permission.”
But the the law we are discussing is “copyright”. A musical performance on its own is not a recording. If you perform a piece you don’t have a copyright until it’s been fixed in tangible form.
From: Copyright Basics for Musicians - New Hampshire Law Firm Gallagher, Callahan & Gartrell
“For a new song or other work, copyright begins at the moment of fixation — when the music and lyrics have been set down on paper, recorded, or stored on a computer. Copyright protects the musician even if the song is never registered with the Copyright Office.”
So does the ethnomusicologist in my example own the copyright? What if he didn’t record the song when the old lady sang it, but remembered it and performed and wrote it down later? Doesn’t he own the copyright then? I’m not asking if it’s moral, I’m asking if it’s legal.
Then there’s this: “The copyright in the composition is distinct from the copyright in the sound recording. Generally speaking, the sound recording can be thought of as the master — the recorded performance of the composition. When registering a newly published song, the musician should be sure to protect the copyright in the composition separately from the copyright in the sound recording.”
Hmm. That complicates things. It kind of goes back to my original question.
What law did you think I was talking about?
I think that was my point.
It depends. If all the ethnomusicologist did was transcribe a work that someone else created, then, no he doesn’t hold any rights under copyright law. However, if the ethnomusicologist contributed some original, creative content in the transcription, then he holds rights, but only with regard to the original material that he created himself.
Note, however, that if the ethnomusicologist did add original material, the work would be a derivative work, and the original creator has exclusive rights to prepare derivative works.
Under the law, if you come up with an original, creative work, then you have rights in it. You don’t have rights in it if someone else came up with it (unless that person signs those rights over to you).
What’s the complication? The very post of mine that you replied to makes this distinction. A musical composition is a work. A sound recording of that composition being performed is another work; specifically, it’s a derivative work. Section 115 of the Copyright Act allows you to make such a sound recording without the permission of the composer, so long as you comply with certain requirements, including paying royalties.
You wrote: “Under the law, if you come up with an original, creative work, then you have rights in it. You don’t have rights in it if someone else came up with it (unless that person signs those rights over to you).”
This is what I’m getting at. Do you have a cite for this law? I can’t find this idea anywhere in the law I’ve looked at. Instead, the law seems to make a distinction between “creator” and “copyright holder”. You logically feel that if you create a piece in your head and play it for someone you automatically hold copyright. I’m asking if that is legally correct. I’m not sure it is.
If your statement is not legally correct, then it means that someone could play a piece for you and you could write it down later and claim copyright as long as they haven’t published it first. A performance on its own is like an idea and an idea cannot be copyrighted.
Copyright Law of the United States of America
and Related Laws Contained in Title 17 of the United States Code
Circular 92
Chapter 1
Subject Matter and Scope of Copyright
§ 101. Definitions
No, a performance is not an idea. Indeed, public performance is one of the exclusive rights held by the author. Thus, it can’t be like an idea. And you are missing something by focusing on “performance.” Performance doesn’t matter, for the purposes of initiating copyright protection. Fixation matters. As soon as a work is fixed, the copyright invests in the author:
Note that is no requirement that the author be the one creating a fixation with his or her own hand. It can be done by someone else.
Anyone could claim it, but if you asserting authorship, you are asserting that you are the one who created the original expression. The question of the actual author not being able to prove that you wrote down his or her work is merely a question of evidence.
There is a distinction between the two only if the original author has transferred his or her rights to another party. Indeed, under Section 203, the original author or creator holds termination rights. That means, the original author is acknowledged as having some kind of continuing status. The author is always the author.
And don’t confuse “fixation” with “publication.” You don’t have to publish a work in order for it to be fixed in a tangible or perceivable medium.
Furthermore, remember that even if federal law requires fixation in order for exclusive rights to attach, state law is allowed to protect works that have not been fixed, such as unpublished works, or those ephemerally communicated, such as in a conversation or broadcast. This implies again that the author is the one who created the original expression, not the person who happened to write it down or the person running the tape recorder.