Tag Archives: Term of protection

Sampling and Remixes

The articles about arrangements in the “Good to know” series have so far focused on “conventional” arrangements of musical works. Sampling and remixes are two additional and specific forms of arrangement. What rights need to be secured when existing recordings are used to produce a new work? What agreements have to be contracted? Text by Claudia Kempf and Michael Wohlgemuth

Sampling and Remixes

From the copyright point of view, remixes and sampling are specific forms of arrangement. (Photo: Tabea Hüberli)

Sound samplings come in many different forms and techniques. But they all have one thing in common: they incorporate parts of a musical recording into a new work. This regularly raises the question whether such parts of works or samples are protected by copyright or – especially in the case of very short sound sequences – whether they may be used freely.

In the case of a remix, an existing production is taken and re-arranged and re-mixed. This may involve taking apart a whole work and putting it together again with the addition of new elements. Theoretically, the degree of re-arrangement in a remix may range from a simple cover version to a completely new arrangement. As a rule, a remix is simply an arrangement. Remixes generally keep a work’s existing title and add a tag which refers either to the form of use (radio edit / extended club version, or similar) or the name of the remixer (generally a well-known DJ).

By contrast with conventional arrangements, in addition to using an existing work to create a derived work or arrangement, samples and remixes also use an existing sound recording. Therefore, one must distinguish between two categories of rights: the rights of the authors of the original work on the one hand (copyrights), and the rights of the performing artists and producers of the recording on the other (neighbouring rights).

Securing the copyrights

In principle, copyright law protects entire works of music, as well as parts of works which meet the qualifying criteria, provided the term of protection of 70 years (after the death of the last deceased author) has not yet expired. The melody, a solo or other elements of a work can therefore be protected and may not be freely used if they qualify as a work of an individual character. This must be determined on a case-by-case basis. The more marked the characteristics of the sampled element, the less likely you will be able to use that element for free. The notion that two bars, nine notes or two seconds of music can be used for free is only a rumour since, regrettably, there is no clear delimitation defining when a part of a work has an individual character.

So if a protected part of a third-party composition is sampled and incorporated into a new work, and the part concerned has an individual character, the arrangement rights in the original work must be secured from the publisher or, in the case of unpublished works, the author. This is done through a sampling agreement or an arrangement licence.

In the case of a remix, a distinction is made depending on who creates the remix: the author of the original work or a third party. For copyright purposes, the original author is essentially free to create remixes of his own work. If, however, the original work was composed by several people, he will need permission from his co-authors to create a remix; and if the original work was published by a label, he will need the permission of the label to use the sound recording (neighbouring rights).

If the remix was created by a third party, a distinction must be made depending on whether the remix was commissioned or made on the remixer’s own initiative. In the latter case, the rights must be secured from the author or his publisher by means of an arrangement license (often referred to as a “remix agreement”).

Securing neighbouring rights

Since sampling and remixes borrow from pre-existing sound recordings, the rights in the recording and the artists’ performances must also be secured. As a rule, the rights of the performing artists are assigned to the record producer or the label when the production is made. These rights are also limited by a term of protection. Currently, the term of protection for recordings in Switzerland is 50 years after the first publication, provided that the recording is actually published for the first time within 50 years of the recording date. Otherwise, the recording date is decisive for the expiry of the term of protection. In the EU, however, the term of protection is 70 years. In the framework of the revision of the Copyright Act currently before the Swiss Parliament, it has been proposed to increase the term of protection under Swiss law in line with that of the European Union.

If the term of protection is still valid, the rights in the recording have to be secured. The rumour that “two seconds are fair use” is fundamentally false. However, there is controversy as to whether recording protection applies to the shortest sound sequences. The European Court of Justice is currently examining this very matter in “Kraftwerk vs. Pelham: Metall auf Metall”.

The rights in a recording are normally held by the record producer, i.e. by the party who bears the economic risk of the recording. The producer can be an artist himself (own productions), a record company (“label”) or a broadcasting company, and the corresponding rights must be secured accordingly. Colloquially, the rights in the recordings are often referred to as “master rights”.

NB. A work’s term of protection may have expired while the recording is still protected. In this case, the rights in the work no longer need to be secured, but the rights in the recording still do. This would also apply to recordings of natural sounds and animal cries, for example, which are not protected by copyright. In this case, the recording, as the economic output of the producer, is protected just the same.

Main points of a sampling agreement

Depending on the circumstances, the sampling agreement (also referred to as a “sample clearance agreement”) regulates the rights in a work and its recording. When these rights are all held by the same party, a single agreement can be made. As a rule, however, two agreements will be concluded: one with the author or his publisher, and the other with the record label. The following points must be covered:

  • Name and address of the contracting parties (pseudonyms if applicable)
  • Subject of agreement: work and/or recording. Duration of the sample. How exactly may the sample be used? Can it be altered?
  • Scope of licence: what rights are granted? Is the licence exclusive or non-exclusive? For which territory and for how long?
  • Rights splitting/licence shares: in most cases, rights are determined by the shares of the participants in the work. The authors of a new work and the rightholders of the original work are all entitled to a share in the new work. The sampling agreement must in any event indicate the splitting. In addition to this rule which depends on the economic success of the new production, the original rightholders may demand a lump-sum fee for the arrangement right. Moreover, the royalty for the use of the recording usually takes the form of a percentage per sold copy of the new production, or of a lump-sum fee.
  • Distribution timetable: when and how often are rights settled?
  • Warranties: the rightholder must warranty that he holds all the relevant rights in the sample.
  • Place, date, signature of rightholder
  • Governing law and jurisdiction

Main points of a remix agreement

A remix agreement must specify whether the remix is commissioned or the remixer is acting on his own initiative and applying for a remix licence. Depending on the premises, the agreements can be quite different. Moreover, in the case of a remix and depending on the circumstances, the rights in the work and the recording also have to be regulated. When these rights are all held by the same party, a single agreement can be concluded. As a rule, however, two agreements have to be made: one with the author or publisher, and the other with the performing artist or record label. The following points must be covered:

  • Name and address of the contracting parties (pseudonyms if applicable)
  • Subject of agreement: work and/or recording. Duration. Title of the remix. Credits.
  • Production terms: delivery date, special requirements (if commissioned)
  • Scope of licence: what rights are granted? Is the licence exclusive or non-exclusive? For which territory and how long?
  • Fees: as a rule, a lump-sum fee is agreed, more rarely a participation in sales and other licence fees such as sync fees.
  • Rights splitting: as the arranger of the newly created work, the remixer is usually (but not necessarily) given a share. Accordingly, the arrangement percentage indicated in SUISA’s Distribution Rules is applicable (see article “Arranging works protected by copyright”). In rare cases, if, for example, the remixer’s contribution to the new work is very significant, he will be granted co-authorship status in the remix. In these cases his participation may also be higher.
  • Distribution timetable: when and how often are rights settled?
  • Place, date, signature of rightholder
  • Governing law and jurisdiction

When does a remix or a work containing samples have to be registered with SUISA?

When filing an application to register a work with samples excerpted from a protected work, the sampling agreement (which does not have to be expressly designated as such) must be enclosed or – in the case of online registration – uploaded. The rights splitting must be clearly indicated in the sampling agreement. Otherwise, the new work cannot be registered.

NB. In contrast to conventional arrangements where the arranger is registered as such for the new work, it is general practice for works with samples to list all the authors as co-authors of the work. The authors and, if applicable, publishers of the work from which the samples are taken thus become co-rightholders of the new work. When applying to register a work, it is important to list all rightholders of the work from which the samples are excerpted or at least to clearly state which original work was sampled.

When filing an application to register a remix of a protected work, the remix agreement (which does not have to be expressly designated as such) must be enclosed or – in the case of online registration – uploaded. The remixer will only be granted a share of the earnings if the remix agreement clearly indicates that he is entitled to a share. If no percentage is specified, the remixer will be entitled to the share allotted to the arranger under the Distribution Rules. If no reference is made to any share, SUISA will record the name of the remixer in the original version with the comment that the remix is approved but the remixer is not entitled to any share. If a publishing house registers a remix of a work which it published in the original, SUISA waives the need for a remix agreement since the publisher can always secure the arrangement rights directly from its author.

Summary

In addition to the arrangement rights (copyright), remixes and sampling always also affect neighbouring rights, since they use existing recordings (containing the rights of performing artists). The rights in the recording may be held by the same rightholder as the arrangement rights (author or publisher), or by a third party (often a record company or label), and must be secured even for very short sequences. The more rightholders involved, the earlier one should start enquiring and securing the rights. Likewise, remix and sampling permissions should always be recorded as written agreements (which also facilitates registration of the works with SUISA) and should clearly indicate how rights are split.

SUISA assists its members in locating the rightholders. In the case of published works, it provides the publisher’s particulars so that he can be contacted directly. In the case of unpublished works, it forwards enquiries to the authors or their heirs. Enquiries should be addressed to: publisher (at) suisa (dot) ch Details of the producers of a recording can be found under the ℗ note on the recording itself.

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The articles about arrangements in the “Good to know” series have so far focused on “conventional” arrangements of musical works. Sampling and remixes are two additional and specific forms of arrangement. What rights need to be secured when existing recordings are used to produce a new work? What agreements have to be contracted? Text by Claudia Kempf and Michael Wohlgemuth

Sampling and Remixes

From the copyright point of view, remixes and sampling are specific forms of arrangement. (Photo: Tabea Hüberli)

Sound samplings come in many different forms and techniques. But they all have one thing in common: they incorporate parts of a musical recording into a new work. This regularly raises the question whether such parts of works or samples are protected by copyright or – especially in the case of very short sound sequences –...read more

Arranging works protected by copyright

Musical works in the public domain can be arranged at will. But works which are still protected by copyright, i.e. whose author has been dead for less than 70 years, cannot be arranged without permission from the rightholders. How does one go about obtaining such permission, and what points must be regulated in the permission in order to be able to register an arrangement with SUISA? Text by Claudia Kempf and Michael Wohlgemuth

Arranging works protected by copyright

To arrange a work protected by copyright whose author has been dead for less than 70 years, permission must be obtained from the rightholders. (Photo: Tabea Hüberli)

The author has the right to decide whether his work can be arranged; in other words, whether a “derived work” or an “arrangement” can be created from his or her original work. This right remains with the author and is not transferred to SUISA under the rights’ administration agreement. A person wishing to arrange a work must contact the author and obtain his or her permission to do so.

Authors generally transfer the arrangement rights to their publishers in the framework of a publishing agreement. On that basis, publishers may authorise third parties to arrange a work, or commission third parties to create a new version of the work. Publishing contracts should regulate whether the publisher may, under certain circumstances, authorise or commission an arrangement directly or whether the publisher must refer back to the author in each case. In the case of published works, therefore, the person to contact for permission is the publisher.

When dealing with successful international repertoires, obtaining permission may be a tiresome procedure, and may not always be crowned with success. Certain rightholders are happy to have their works arranged and more widely disseminated. Other rightholders attach great value to the “integrity” of their works and refuse virtually all arrangements. Either way, before an arrangement can be undertaken, sufficient time should be reserved for ascertaining the legal rights.

NB. If a number of requests have been submitted to the author or the publisher and no response has been received, it is wrong to presume that “silence means consent” and that the work can be arranged simply because “efforts were made” to obtain permission. As a rule, arranging a work without the rightholder’s consent constitutes a copyright infringement and may result in civil and criminal prosecution.

Even once the necessary permission has been obtained, the arranger is not always free to arrange the work at will. The permission may be restricted to a certain type of arrangement (e.g. translation of the lyrics into another language, shortening the work, remis, new instrumentalisation, etc.) Moreover, by law, even if they have permitted an arrangement, authors are entitled to defend their works against “distortion”. In such cases (often difficult to judge), it is the “moral rights” of the author which are at stake.

Key points of an authorisation to arrange

If an author or a publisher grants permission to arrange a work, this permission, consent, or authorisation should be recorded in a short written agreement. The agreement should cover the following points:

a) Name and address of the contractual parties (pseudonyms, if any)

b) Scope of permission: the work to be arranged must be clearly designated, as well as the extent to which the work may be musically or textually arranged. Moreover, the agreement should indicate whether and how the new work can be registered as an arrangement with SUISA.

Good to know: Registering a work as an arrangement only makes sense if the original is already registered with SUISA, and both works (original and arrangement) are to be used side by side (and independently). In the framework of the songwriting process, it is not unusual for “arranged parts” to be attributed to co-musicians although there is no original work which can be used separately. To avoid misunderstandings, it is advisable in such cases to let the co-musicians participate as co-authors rather than as arrangers.

c) Shares: Under SUISA’s Distribution Rules, for unpublished works without lyrics, the arranger is entitled to a 20% share; for published works without lyrics, the arranger’s share is 16.67%. For works with lyrics, the arranger’s share is 15% (unpublished) and 11.67% (published) respectively. In principle, the arranger’s share can be set freely. In practice, the arranger’s share lies between 0% and 25%. SUISA’s Distribution Rules provide for an exception in the case of arrangement permissions granted by publishers: here, the arranger’s share may not exceed the share in the regulatory distribution key. This is designed to avoid the share of the original author from being reduced too far. A rightholder may also permit an arrangement without granting any share of the distribution to the arranger.

d) Publishing an arrangement: In the case of arrangements of published works, it is advisable to specify in the authorisation whether the arrangement must also be published by the publisher of the original work (so that the publisher can retain control over the publishing rights). As a rule, the original publisher will insist on this. In that case, an additional publishing agreement should be signed between the original publisher and the arranger.

e) Rights warranties: Rightholders must warrant that they dispose of the necessary rights to grant the arrangement permission.

f) Place, date, rightholder’s signature

g) Governing law, jurisdiction

Special case: “sub-arrangements”

Sub-publishing agreements generally provide for the transfer of the arrangement rights from the original publisher to the sub-publisher. The sub-publisher is thus entitled to authorise or commission arrangements. In these cases, the arranger is registered as a “sub-arranger” or, with regard to new lyrics, e.g. in another language, as a “sub-lyricist”. Here too, SUISA’s Distribution Rules provide that the sub-arranger’s share may not exceed the share set in the regulatory distribution key.

How to register an arrangement with SUISA

For an arrangement of a protected work, the permission to make the arrangement must be filed – or uploaded in the case of an online registration – together with the registration form. The arranger will only receive a share of the royalties from a work if the permission to arrange explicitly states that the arranger is entitled to a share. If no percentage share is indicated, the arranger will be allocated the regulatory share. If there is no mention of the arranger’s participation, SUISA will record the arranger’s name under the original version, with a note indicating that an authorised arrangement exists but the arranger is not entitled to a participation. Accordingly, the arranger will not receive a share.

When publishers register new versions of works which they have published in the original, SUISA waives the need for an authorisation since the publisher has to settle the arrangement rights directly with its authors. The same applies for sub-publishing agreements.

Summary

To arrange protected works, therefore, you always need the rightholders’ permision – depending on the circumstances, such permission should be obtained from the author, the author’s heirs or from the publisher. Permission is the prerequisite for registering an arrangement of a protected work with SUISA.

SUISA offers its support in tracing the responsible rightholders. In the case of published works, SUISA will give you the publisher’s name and address so that you may contact the latter directly. In the case of unpubished works, SUISA forwards arrangement requests directly to the author or his/her heirs. Inquiries should be addressed to: publisher (at) suisa (dot) ch
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All comments will be moderated. This may take some time and we reserve the right not to publish comments that contradict the conditions of use.

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Musical works in the public domain can be arranged at will. But works which are still protected by copyright, i.e. whose author has been dead for less than 70 years, cannot be arranged without permission from the rightholders. How does one go about obtaining such permission, and what points must be regulated in the permission in order to be able to register an arrangement with SUISA? Text by Claudia Kempf and Michael Wohlgemuth

Arranging works protected by copyright

To arrange a work protected by copyright whose author has been dead for less than 70 years, permission must be obtained from the rightholders. (Photo: Tabea Hüberli)

The author has the right to decide whether his work can be arranged; in other words, whether a “derived work” or an “arrangement” can be created from his or her original work. This...read more

Publishing agreements: What do I need to consider?

Publishing agreements in Switzerland are governed by the Swiss Code of Obligations (OR) The respective statutory provisions on it are, however, not very detailed. In the case of music publishing agreements in particular, you cannot simply rely on the law. Besides, the contractual parties may also stipulate their own arrangements in the agreement. So what do you have to be aware of with respect to publishing agreements? Text by Nicolas Pont

Publishing agreements are concludes between all parties involved in a work: authors (composers, lyricists, arrangers) and a publisher. (Photo: Alexskopje / Shutterstock.com)

The publishing agreement is incorporated into the law (Art. 380 ff. OR). The legal provisions are, however, not mandatory, and the parties have a lot of room to manoeuvre for the negotiations prior to signing the agreement. In cases of doubt, it might help to refer to the commented version of the SUISA model agreement.

Publishers can be referred to as the “managers of a work” – as the entity or person whose duty it is to promote the work. They seek to maximise usage and exploitation, e.g. in the form of radio broadcasts, synchronisation with audiovisual works and sales of music score. In return for this promotional activity, publishers who are members of collective management organisations (CMOs) benefit from part of the royalties for the usage of the works. The publisher is thus included in the works registration as an interested party and obtains a percentage of the work remuneration.

Entering into agreements and contracting parties

SUISA’s model agreement can be used as a contractual basis and adapted as required, but usually, each publisher has its own agreement. SUISA members have the opportunity as authors or publishers to have SUISA’s legal department check their agreement prior to signature free of charge. Our legal department may correct any disadvantageous provisions and also provide details on the professionalism of the publisher.

The law assumes that the author is the individual that has created the work. This means that a group of authors cannot be considered as authors. Only an individual member of a band can be a contracting party and sign the agreement. In order for the works to be completely integrated as the subject matter of the publishing agreement, all who have contributed to the creation of the composition must therefore sign the publishing agreement.

Furthermore, attention should also be paid to the fact that arrangements of works already published are not automatically published with the same publisher. As arrangements must be protected in their own right according to the law, the publisher must acquire the rights on them in a separate agreement with the arranger.

Term of the agreement

The agreement may be in effect between 3 (minimum duration stipulated by SUISA) and up to 70 years after the death of the author (statutory term of protection for a work). It is generally in the interest of a publisher to sign an agreement which spans as many years as possible, whereas authors are interested in limiting the term covering the assignment of their rights. It is, of course, possible to enter into a three-year-agreement which – if it is not being terminated – can be extended on a rolling basis of one year. Such an option does not require any additional steps.

If you determine the term of the agreement, the investment of the publisher should be taken into consideration, e.g. in cases where music score is being published. In any case, the parties should be aware of how long they are bound contractually. Another important point is to realise how difficult it might be to dissolve an agreement prior to its end date if the parties end up having a conflict. It is absolutely vital that rightsholders inform SUISA in any case so that SUISA can adapt its documentation.

Remuneration for the publisher

The percentage for the publisher is jointly determined by the parties. There is only one mandatory provision: In accordance with SUISA’s distribution rules, the publisher may only receive a maximum share of 35% of the remuneration from performing and broadcasting rights (e.g. for concerts and radio broadcasts). Subject to this reservation, the parties are free to determine the percentage. If no percentages have been entered into the agreement by the contracting parties, those determined by the distribution rules shall apply.

Agreements often do not contain explicit percentages, but rather refer to the applicability of the distribution rules of the respective collective management organisation. In the case of agreements with foreign publishers who register their catalogues with the society in their country, this leads to the application of foreign distribution rules: For performing and broadcasting rights, a publisher in Germany therefore receives 33.33% (GEMA), and 50% in England (PRS).

The international umbrella association of the collective management organisations, CISAC, has set out a guideline for the distribution key between authors and publishers that publishers should not receive more than 33.33% for performances and broadcasts. The 230 CISAC member societies from 120 countries are free to adapt this key. Many societies, such as GEMA and SACEM already apply this recommended distribution. SUISA also wishes to adapt its rules and regulations to this CISAC guideline. The respective application for a change of the SUISA distribution rules has been submitted to the Swiss Federal Institute of Intellectual Property (IPI) at the beginning of 2016. The IPI approval is still pending and would not come into force before 2017.

An “admin publisher”, which merely creates a connection with a collecting society (i.e. completes work registrations, checks distribution statements and possibly submits complaints etc.) should, logically, receive a smaller percentage than a publisher who is also looking after the promotion and placement of the work and the search for a producer.

You should not forget to determine the distribution of such monies that are not being paid by the collecting societies (e.g. for synchronisation rights). These revenues are usually split 50/50 between the publisher and the author. Finally, the author usually receives a 10% share of the income arising from the sales of music score.

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All comments will be moderated. This may take some time and we reserve the right not to publish comments that contradict the conditions of use.

Your email address will not be published.

Publishing agreements in Switzerland are governed by the Swiss Code of Obligations (OR) The respective statutory provisions on it are, however, not very detailed. In the case of music publishing agreements in particular, you cannot simply rely on the law. Besides, the contractual parties may also stipulate their own arrangements in the agreement. So what do you have to be aware of with respect to publishing agreements? Text by Nicolas Pont

Publishing agreements are concludes between all parties involved in a work: authors (composers, lyricists, arrangers) and a publisher. (Photo: Alexskopje / Shutterstock.com)

The publishing agreement is incorporated into the law (Art. 380 ff. OR). The legal provisions are, however, not mandatory, and the parties have a lot of room to manoeuvre for the negotiations prior to signing the agreement. In cases of...read more