COPYRIGHT REQUIREMENTS FOR MEDIA REPLICATION/DUPLICATION

Because of the Internet and other technological developments, there are many creative ways in which individuals can easily infringe on another’s intellectual property rights when creating their own works, sometimes without even being aware of the infringement. Due to the current legal environment in the media industry, it is very important for you to assure that proper permissions have been secured for any CD and DVD replication order. Failure to properly license intellectual property used in a replication order can result in significant monetary legal damages against you and any other party involved in your transaction, including brokers. This is true even if you are not aware that you have infringed on someone else’s rights. Keep in mind that it is ultimately your responsibility to make sure you have all the applicable intellectual property rights.

Brief Overview

There are precautionary steps you must take for duplicating/replicating all software, video and audio media. For Software products the quickest way to determine if a product requires licensing is to go to the vendor website and investigate. Audio is a bit more complicated as there are several things you may need to investigate before the duplication process begins. The Harry Fox Agency (www.harryfox.com) is a service that allows you to register and make payments toward the reprocessing of a song. The website www.songfile.com is available to determine if a song can or cannot be used for duplication/replication. Compulsory licenses may also be required if the song has been recorded by another artist. For video duplication/replication, a videogram license or synchronization license must be provided as most major motion pictures have a registered copyright.

What is a License?

A license is a legal means for an intellectual property rights (IPR) owner to grant permission for a specific use of their intellectual property. The rights to software products, recorded audio tracks, published music and motion picture assets not in the public domain are all owned by a person or organization. If you wish to utilize any of these assets on your disc order and you are not the IPR owner, you must secure the rights to do so through a license from the IPR owner.

A license can take the form of:

• Formal letter from the IPR owner on their letterhead indicating the specific use granted for their property
• A copy of the original purchase order from the IPR owner with a detailed description of their product / audio tracks.
• Formal document of registration from an organization that serves as a licensing clearinghouse
• Copy of a contract or formal agreement that exists between the user of the property and the owner of the property

What must be licensed for use and who can grant that license?

Software products, recorded audio tracks, published music and motion picture assets may all need to be licensed for use. Determining whether licensing is needed may require performing research with licensing clearinghouses, Internet search information, copyright searches or an agency that specializes in this activity. Intellectual property law can be very complex and may not always be very definitive. In all cases, proof must be demonstrated to Kopy-Rite’s satisfaction that appropriate licensing has been granted to the individual or organization that has procured the CD or DVD replication order. Kopy-Rite reserves the right to request additional information in order to verify the licensing information being provided, as well as to contact the underlying rights owner to confirm the validity of the license.

Software: The licensing needs for software products are determined by the vendors creating the product. Most commercially available packages require a Software Distribution Agreement. This is different from the End User License Agreement that you traditionally see when you install a software package on your computer. Some freely distributed programs still require distribution licensing even though they are free (like web browsers). You should consult the software vendor to find out their specific requirements. Some software companies allow you to register for a distribution license of their products on the web.

Some of these popular computer software programs are:

• WinZip - www.winzip.com
• Macromedia Shockwave & Flash Player - www.macromedia.com
• Adobe Acrobat - www.adobe.com

Audio: Recorded audio tracks require two different types of licensing:

• License for the recorded track from the artist
• License for the published song used in the recording from the music publisher

The recorded track license must demonstrate a chain-of-title from the actual recording artist or organization representing the artist to the individual or organization procuring the DVD or CD order. NOTE: All recorded tracks created since 1972 are protected by Federal copyright, so performing a copyright search may be helpful in determining the current IPR owner. Use of a published song on an audio recording requires a per copy fee to be paid to the music publisher. These fees are called mechanical royalties. Mechanical royalties can be paid directly to the publisher, or the publisher can establish a relationship with an agency to handle the negotiation of royalty payments, collections and disbursement to publishers.

In the United States, mechanical royalty payments can be registered and made through online services like Songfile www.songfile.com or through the Harry Fox Agency (HFA) (http://www.harryfox.com). Songfile can be used strictly through the Internet for limited quantities and specific uses. Songfile will send an email response with appropriate registration information. Kopy-Rite would require a copy of this email. HFA can be used when Songfile is not applicable. Please consult Songfile’s site to determine when it can or cannot be used. HFA can also provide a license for song use and that document should be submitted to Kopy-Rite with the corresponding replication order. In the future, HFA activities will be available through the Internet.

A term commonly used in the music industry is Compulsory License. This is when a published song has been previously recorded by an artist and another artist wishes to re-record it. Federal copyright law allows for a compulsory license, which gives an artist the ability to re-record a song and pay a predefined mechanical royalty rate as established by the Federal Government. Compulsory licenses only apply when the song has already been recorded by another artist.

The Harry Fox Agency (HFA) has now made it easier and faster for you to obtain mechanical licenses - all you need is a PC with Internet access and a credit card. Please be advised that the information you request can be obtained by visiting the website www.songfile.com. The www.songfile.com web site gives you direct access to HFA's database of songs. Most songs listed on the web site are available for immediate mechanical licensing. You can now have most licenses within two days. Prior approval from the music publisher is not required, but proof of license registration with agencies like Harry Fox is required. In these cases, the agency license document should be submitted to Kopy-Rite. The Harry Fox Agency (HFA) has now made it easier and faster for you to obtain mechanical licenses - all you need is a PC with Internet access and a credit card. Please note, if you wish to manufacture more than the 2,500 units that Songfile allows, you may apply for additional licenses to match those additional units up to 10,000 maximum.

Sampling is when portions of a previously recorded audio track are utilized in creating a new audio track. For tracks to be sampled, appropriate audio licensing for the sampled track are required from the recorded track IPR owner and music publisher.

Audio utilized from production music libraries also requires licensing for replication. The licensing may be in various forms depending upon the music library vendor. Traditionally, a Master Use Agreement will be issued by the music library vendor when the specific usage fees for the chosen music are paid. This documentation should be submitted to Kopy-Rite with the corresponding replication order.

Video: Legal protection for video and motion picture assets was established under Federal copyright law since 1912. Most major motion pictures will have a registered copyright. Even though a motion picture can have a terminated or expired copyright, other aspects of the work may still be covered through other copyright protection (i.e. musical soundtracks, use of the likeness of individuals, etc.). Addressing the copyrights of a motion picture can be very complex and may require legal assistance.

When putting together a multimedia application that involves video and music, music licensing may also need to be provided. If a recorded audio track is used in conjunction with a video and the resulting product is to be sold to the public the following license(s) would be needed from the IPR owner(s):

• Videogram license for the recorded track must be provided from the IPR owner of the recorded track
• Synchronization license must be provided from the music publisher.

You may go on-line for copyright forms at www.1cweb.1oc.gov/copyright or to speak to someone regarding copyright questions at (202) 707-9100.