fidelity.
The Constitution delegates power over copyrights to Congress,
which through the years composed a large and sometimes-difficult
concerto of laws. Here are some of the ideas you need to know to
put music on your Internet site. Music adds to interest and
helps to attract and hold audience attention. It also increases
legal risks.
THE LICENSING GAME
When a Web site uses music without permission of the
copyright holder, the site's owner can get stuck for
"direct" infringement. The owner can be hauled into
court, compelled by injunction to stop misbehaving, and forced
to pay damages, costs and attorney's fees.
Still, the owner can hire an attorney to make sure that
required licenses are in filing cabinets.
Some people, such as Web site operators and hosts, may
unknowingly commit "vicarious" infringement if they
have a right-of-site supervision and if they stand to gain
monetarily. "Contributory" infringement occurs when
someone knows that a site contains infringing information and
actually encourages people to download or make use of it.
A specific piece of music often travels with serious
copyright baggage. A particular tune may be performed by five or
six recording artists with an equal number of bands and
orchestras. Each artist and each band has a copyright in the
tune. It's important to get permission of the right artist and
band before putting the tune on your Web site.
FINES AND IMPRISONMENTS
Most infringements by businesses on the Web probably will be
by mistake. Serious and intentional incidents, however, are
criminal. Penalties range to $500,000 and five years in prison
for first offenses, and double after that.
In the complicated world of copyrights, it's worth being
careful.
Statutory complexities and severe punishments stem from the
power and wealth of the music industry, which takes the Internet
very seriously. It's no place for a casual approach, or for
doing your own lawyering. Copyright matters fall within the
territory of intellectual-property lawyers, people who
specialize in copyright, trademark and patent law.
If you plan a serious business Web site, your lawyer should
help draw up your site development agreement. The contract needs
a provision that the site developer will be responsible for
getting all necessary licenses for use of copyrighted music.
Then, counsel should participate along with your site
developer to make sure that licenses are legally sufficient and
meet the necessities of your site.
TRIPPING OVER TYPES
Copyrights permit five kinds of licenses -- mechanical,
synchronization, master use, performance and digital
performance.
One Web site may need one type of license, a second may need
two or three of them. However, once a copyright owner allows
public performance of the work, licenses can be compulsory and
at a statutory rate.
Getting the compulsory license at the statutory rate requires
technically-correct notice to the copyright's owner or, if not
found, to the U.S. Copyright Office in Washington. They must go
to the owners of different rights, and they must relate to the
correct type of license.
A synchronization license, for example, allows music in synch
with visual images, as happens all the time in commercials and
movies. Master-use licenses transfer the rights of singers and
musicians to big record companies in exchange for royalties.
Without a performance license, works can't be played publicly.
To add another layer of complexity, Congress, in 1995, created
digital performance licenses.
LICENSED TO PERFORM
Two long-standing agencies, ASCAP and BMI, usually take care
of licensing performing rights. They audit markets, collect
money and distribute it to their members. A third agency does
much the same in Europe.
ASCAP and
BMI propose standard Internet-use agreements,
copies of which are on the companies' Web sites.
Back in those Wild West days, it was easy to tell who won the
gunfight. Things aren't that easy anymore. The Web often seems
easy to use. Legally, though, things changed. They will never be
the same again, not in the law of copyright and not in much
else.
More than a century ago, western business people with
problems hired gunfighters and "negotiated" by
fighting things like New Mexico's Lincoln County War of 1878.
For business people who want to get on the Web today, there's no
need for gunfighters nor wars. You need an intellectual property
lawyer.
