Art export - UNDERSTANDING COPYRIGHT presented by Daniel Rosen - Artscape Daniels Launchpad
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art
LAUNCHPAD
LEARNING
ONLINE
export
UNDERSTANDING
COPYRIGHT
presented by
Daniel Rosen
What We’ll
Resident Expert
Daniel Rosen
Learn
04 / The Big Idea
06 / Copyright Basics
08 / What is Covered by Copyright
10 / How You Make Money From
Copyright
12 / Copyrighting Checklist
14 / Q+A with Daniel Rosen
Daniel Rosen is an artist and lawyer who has cultivated
a wealth of music industry knowledge first hand as a
producer and songwriter. In his professional practice as an
entertainment lawyer at Goldenberg Nahmias LLP, Daniel
uses his unique perspective to represent his clients, which
range from emerging and well-established artists to music
companies and film/television producers.
Exporting Art from Canada: A Legal Perspective 3
Copyright isn’t complicated, but
it does take some TIME and You don’t
EFFORT to fully understand it.
Protecting your work, tapping into your earning potential,
and having a successful career in your industry requires an
understanding of all of the rights involved in what you are
creating.
have to be
a lawyer to
The good thing is that copyright has been established around
the world for years, including how copyright owners can make
money from it.
understand
copyright.
Exporting Art from Canada: A Legal Perspective 5Copyright
Basics
WHAT IS COPYRIGHT? author of a work may contract “maker” of a sound recording their work or performance,
Copyright is a bundle of for certain rights (including as equivalent to an “author” of and to prevent the work or WHAT IS THE BENEFIT OF
rights that a person has ownership) in the work, which a work. performance from being REGISTERING A WORK?
in connection with a work means that sometimes the used in certain context the
(musical, artistic, dramatic author and the owner of the Just as is often in the case author or performer does not In my view, there really is none
and literary) or some form of work can be two different of works, contractual want (i.e. in association with a unless there is a commercial
other subject matter (sound people or entities. arrangements can be made in certain product or service). arrangement that requires
recordings, performer’s respect of the ownership of a you to do so.
performances, and broadcast Copyright does not just sound recording.
signals). subsist in works, but also DO I NEED TO While the Copyright Act
subsists in what is termed It is important to note that REGISTER MY WORK states that a certificate of
“other subject matter” under an author of a work and a WITH THE CANADIAN registration of copyright is
the Copyright Act. performer of a performer’s INTELLECTUAL evidence that copyright exists
performance have moral PROPERTY OFFICE TO and that the person registered
Sound recordings fall under rights under the Copyright Act. HAVE THE COPYRIGHT? is the owner of the copyright,
The next time you write that
this category, along with such evidence can be created
song, write down the lyrics or
performer’s performances There are three types of moral No. A work is automatically without registration (see the
get out your phone and record
and broadcast signals. rights: paternity, attribution, protected by copyright the note above regarding fixation
it. Registration of copyright
Ownership rules are different and integrity. Moral rights moment you fix it in any of your work in a tangible
is generally not necessary in
with respect to “other subject cannot be assigned but may material form. This is often medium of expression).
most cases unless a specific
matter”. be waived by the author or referred to as a “tangible
situation requires it (i.e. film
performer. medium of expression”.
distributors will require you to
For example, the first owner of
register the copyright to your
a sound recording under the Moral rights ensure an author This expression must be
film).
With respect to “works”, the Copyright Act is the “maker”, or performer can have their sufficiently permanent or
general rule is that the author defined as the person name (or a pseudonym) stable to permit the work to
of the work is the first owner who makes the necessary attributed in connection with be perceived, reproduced, or
of the copyright in the work. arrangements for the first the work or performance otherwise communicated.
However, individuals and fixation of the sounds on that (i.e. in the credits), prevent
organizations who are not the record. You can think of the distortion or mutilation of
Exporting Art from Canada: A Legal Perspective 7What is Covered
by Copyright?
There are four categories of works There are three types of other
covered by copyright. subject matter.
ARTISTIC WORKS LITERARY WORKS DRAMATIC WORKS MUSICAL WORKS PERFORMANCES SOUND RECORDINGS COMM SIGNALS
Includes paintings, Includes books, Includes movies, Sound recordings Covers the rights “Sound recording” means
Means radio waves
drawings, maps, pamphlets, essays, plays, screenplays, are often fixations of to transmit to the a recording fixed in any
transmitted through
charts, plans, dictionaries, lectures, scripts, characters, musical works. public, perform, material form, consisting of
space without any
photographs, speeches, tables, scenes, dialogue (a fix, reproduce (the sounds, whether or not of a
artificial guide, for
engravings, computer programs, script or screenplay original work or a performance of a work, but
reception by the
sculptures, and compilations of can be literary works reproduction) or rent excludes any soundtrack
public.
works of artistic literary works. too). out that work. of a cinematographic work
craftsmanship, where it accompanies the
architectural works, Any piece cinematographic work.
and compilations of for recitation,
artistic works. choreographic work
or mime, the scenic
arrangement or
acting form of which
is fixed in writing or
otherwise.
Any cinematographic
work and any
compilation of
dramatic works.
Exporting Art from Canada: A Legal Perspective 9How Copyright Relates to Making
Money in Music
Musical Work Royalties Sound Recording Royalties Performer’s
(“music publishing royalties” (“record royalties” or “master Performance
or “songwriting royalties”) royalties”) Royalties
PUBLIC PERFORMANCE SYNCHRONIZATION MECHANICAL STREAMING/SALES SYNCHRONIZATION PUBLIC PERFORMANCE
REPRODUCTION LICENSE
Collected by SOCAN. Collected from the producer Collected by record label (or
Collected and distributed
of movie/TV show (or other Collected by CMRRA and you, if you release it without a Collected from the producer
Derived from the broadcast by Re:Sound (or its affiliates:
or public performance of audiovisual work, i.e. an online SOCAN (which has recently label). of movie/TV show (or other
ACTRA RACS, Artisti, or
video). acquired SODRAC). audiovisual work, i.e. an online
a musical work (i.e. at a live Derived from when a sound MROC). For Performers, I
video).
event or on a radio station). Compensation is negotiated When a master recording recording is sold (in digital or would recommend ACTRA
directly with the producer containing a song is sold physical form) or is streamed Compensation is negotiated RACS, Artisti, and MROC.
and there are no “set” rates (i.e. when a record/digital on a streaming service (i.e. directly with the producer
(although there are industry download is sold). Spotify or Apple Music). and there are no “set” rates Derived from the broadcast
conventions). (although there are industry or public performance of
CMRRA/SOCAN also have
conventions). a musical work (i.e. at a live
direct licenses with music PUBLIC PERFORMANCE event or on a radio station).
streaming services, which
allow royalties that are similar Collected and distributed
to mechanical royalties to by Re:Sound (or its affiliates:
be paid to songwriters/ Connect Music Licensing,
publishers for the songs SOPROQ). For record labels,
embodied in the sound I would recommend Connect
recordings being streamed. Music Licensing.
Derived from the broadcast
or public performance of a
sound recording (i.e. at a live
event or on a radio station.)
Exporting Art from Canada: A Legal Perspective 11Copyrighting Checklist
Some useful questions to ask
yourself when creating.
1 5
Are there multiple people involved
What type of “work” and/or in the creation of the work or
“other subject-matter” am I other subject-matter? Are there
creating? contractual arrangements or
agreements regarding ownership?
2 6
When did the copyright If I want to exploit my work free
arise in my work or other of claims from anyone else, do I
subject-matter? Have have the necessary contracts and
I fixed it in a “tangible agreements in place to do that?
medium of expression”?
3 7
Are there certain licensing
Am I the first owner of the bodies that oversee the
work or other payment of certain royalties in
subject-matter? respect of the work or other
subject-matter I am creating?
4 8
Is there a contract that
assigns ownership or Are there certain people or entities
certain rights in the work that can help me exploit my work or
or other subject-matter to other subject-matter?
someone else?
Exporting Art from Canada: A Legal Perspective 13Q+A
with
Daniel Rosen
What is the one part of the
Copyright Act everyone
What is a common mistake
that artists make?
luck and some good advice.
Often artists are presented
Don’t take the first piece of
paper that’s thrown at you. It’s
understands the trials and
tribulations of being an artist, Don’t take the
should know? with exclusive deals that have an industry that takes a lot of I bring that perspective to my
Trying to find a shortcut to another party promising all work and sometimes you have representation of clients. first piece of
Section 3(1) of the Copyright success. In my view, there just sorts of things, including to just be at the right place at
Act. It lists what you can do as isn’t one - it’s just something
the owner of the copyright in that takes time, consistent
instant success and
connections.
the right time. I try to give young artists and
creative entrepreneurs the
paper that’s
I’m a creator...as
a work. This includes the right effort, and creating a high
to reproduce any substantial volume of work. Sometimes these promises someone who
tools to allow them to navigate
an industry that can be
thrown at
part of the work in any
material form, to perform the
The creative
can be true, but the deal has
to be fair. In my practice,
understands complex to navigate. Helping
young creators and emerging
you. It’s an
industries are tough... the trials and
work or any substantial part
of it in public, or, if the work is
I’ve had clients who haven’t
but my view is that all listened to my advice and tribulations of being
artists become equipped
with the tools to help them industry that
unpublished, to publish the creatives need to put have signed unfair deals. To succeed is something I enjoy
work or any substantial part
in the work, get good
have somebody go ahead, not an artist, I bring that doing, because at the end of takes a lot
of it. listen to you, and sign a bad perspective to my the day, as a lawyer you really
at their craft, and let deal after advising them not to
representation of should like helping people. of work and
It also includes a list of rights the quality of art find is frustrating.
unique to specific types of
works such as the right to
you a deal that will
The creative industries are
clients. My participation in the
programs at Artscape is just
sometimes
further your career.
convert a literary work
(i.e. a book) into a dramatic Artists like Ellie Goulding,
tough, and I understand why
someone would want to do
Why are you so engaged
with young artists and
my way of giving back.
you have to
work (i.e. a movie). Lady Gaga, and Katy Perry such a thing, but my view is
were creating music for years that all creatives need to put
creative entrepreneurs? It’s great to be providing
artists with a little bit more just be at the
before they broke through in the work, get good at their Because I’m a creator confidence to conduct their
to stardom. Their rise to craft, and let the quality of art myself – I’ve been a producer affairs as artists and to show right place at
fame was a slow and gradual find you a deal that will further and songwriter for over 10 them that the law may not be
process, along with a bit of your career. years. As someone who as confusing as they think. the right time.
Exporting Art from Canada: A Legal Perspective 15LAUNCHPAD LEARNING ONLINE CO-CREATING SPACE FOR ARTISTS WHO WANT TO THRIVE. Become a member: www.artscapedanielslaunchpad.com : @launchpadtoronto | : @launchpadTO | : @launchpadTO 130 Queens Quay E, East Tower, 4th Floor Toronto ON M5A 0P6 We acknowledge the support of the Canada Council for the Arts. Nous remercions le Conseil des arts du Canada de son soutien. For a guide to copyright in Canada: http://www.ic.gc.ca/eic/site/cipointernet-internetopic.nsf/eng/h_wr02281.html EDITOR Chris Penrose ART DIRECTOR Nabil Shash COPYWRITIER Alicia Roberts GRAPHIC DESIGNER Sebastein Miller PORTRAIT ILLUSTRATIONS Sofia Doudine COVER ILLUSTRATIONS Branded Fox
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