the June 9 edition of the Business Guardian, Dr Hollis Liverpool,
the winner of many Calypso Monarch competitions, said that
copyright owners, including those in T&T, have five exclusive
rights in relation to their music and lyrics.
Three weeks ago, Liverpool, whose calypso name is Chalkdust,
identified three of the exclusive rights: the right to reproduce
their work, the right to distribute their work and the right
to perform their work.
This week, Chalkdust concludes his presentation with the last
two exclusive rights and some thoughts on how new technology
affects five the rights.
to make a derivative work
The fourth right of a copyright owner is the right to make
a derivative work. A derivative work is simply one that is
derived from another.
For example, one may compose parody lyrics to a well-known
song. Calypsonians Cro Cro and Pink Panther, for example,
used the melodies of Gypsy (Little Black Boy and Captain the
Ship is Sinking) with new parody lyrics to bring about new
works that parodied the UNC and Gypsy himself.
Although the melodies they used were copyrighted original
works, their parody lyrics constituted new works. One can
understand the concept better if one looks at a film made
from a novel. Any film so made constitutes derivative work.
A new version of a work that is considered to be public domain,
or a new version of a copyrighted work produced with the consent
of the copyright proprietor is regarded as derivative
work and, as such, is copyrightable. Thus, last year, Maximus
Dan produced a derivative work when he recorded
Gypsys song entitled The Soca Train.
This brings us to the popular question of sampling
which is, in fact, another form of derivative work, and which
has become quite
ever-changing world of music
with the advent of digital technology.
Sampling is the process of dubbing portions of previously
recorded music into new recordings. New recordings that utilise
licensed samples of an earlier copyrighted recording would
naturally fall within the area of a derivative work. Sampling
is usually a musical work taken from the body of an original
song and recording, ranging from a few seconds to more extensive
time periods. Sampling, it must be understood, is a form of
infringement to copyright when it makes illegal use of not
only the songs music and,or lyrics but the sound recording
itself; moreover, it infringes the right of the publisher
of the music as well as the owner of the copyright. Such sampling
is wrong because it infringes the fair use of
the music since substantial identifiable portions of another
persons work are utilised without permission.
One of the areas whereby copyright owners gain compensation
for their work is that of issuing licenses to those who wish
to use such works, whether they like it or not. In many cases,
such compulsory licenses are issued to users of the work by
a copyright organisation or some such body that is given the
responsibility by the owner to issue same.
In T&T, Cott, as the national collecting agency, is usually
given the task of issuing such licenses by copyright owners.
One such license is that of mechanical rights which actually
mean the rights to reproduce songs in records. Mechanical
rights therefore demand that once a song or a work has been
recorded, the publisher of such work is required to license
it to anyone else who wants to use it in records for a specific
payment. The royalties thus accrued are known too, as mechanical
royalties, and are computed in a most complex manner based,
in most cases, on the wholesale price of records.
The term mechanical rights arose from the idea of mechanically
producing sound from mechanical devices in the early
20th century. Even though devices have not reproduced sound
mechanically since the 1940s, the name has stuck, and the
mechanical royalties still refer to monies paid to copyright
owners for such manufacture and distribution of records.
The payments of mechanical rights are facilitated in most
cases by music publishers. As such, this brings us to the
area of publishing and publishing rights. A few years ago,
Calypsonians Terror, Kitchener and Sparrow, made the headlines
when it was made known to all by the print media, that these
calypsonians had sold their publishing rights to Barbadian
Eddy Grant. Did these singers need a publisher? What does
a publisher do?
Well, very often, musicians and music composers need someone
to take care of their business while they spend most of their
time creating. Accordingly, the songwriter assigns the copyright
in the song to a publisher, who in return will carry out all
the administration rights: finding users, issuing licenses,
collecting money and making mechanical deals. Traditionally,
the publisher splits all income with the writer; his 50 per
cent is for his overhead expenses as well as his profit.
Publishers collect monies from printed sheet music, from performance
deals, mechanical royalties, from commercial usage of works,
from radio and television fees, from print music licences,
from foreign sub-publishing and from synchronisation and transcription
Sub-publishing is the concept of making deals with other publishers
in foreign countries to publish the works of their clients,
while synchronisation fees refer to licenses to use music
in timed synchronization with visual images. A
classic example is a song in a motion picture, where the song
is synchronised with the action on the screen. It also includes,
however, television commercials, home video devices, but not
radio commercials. Radio commercials are not synchronised
with visuals and as such, are known as transcription licences.
The fees for synchronisation licensces are based usually on
the usage and importance of the song. The importance of publishing
and publishing rights can be gleaned from the fact that in
the 1990s, following their Copyright Act of 1992, the government
of Jamaica decided to put measures in place to obtain the
publishing rights of all the outstanding folk songs of their
land, lest perhaps these rights were snapped up by money-grabbing
publishers. T&T needs to follow suit, particularly in
regard to the outstanding calypsoes and folksongs that underscore
our heritage. The National Carnival Commission as well as
the Ministry of Culture might one day be sued for using, at
their shows, a calypso by Kitchener or a folk song of Edric
Connor without the permission of the publisher.
All will agree, therefore, that the business of music is an
ever-changing and dynamic field. Its consumers include listeners
as well as amateur and professional performers. With new technology
being introduced yearly, the industry continues to grow toward
unexpected heights. With the rapid and continuous growth of
the industry, however, music makers and the public need to
understand the rights that accrue from creating music for
public use, particularly because copyright owners ought to
be able to live decently and with dignity from the royalties
that their creativity has engendered.
Dr Hollis Liverpool is an associate Professor of History,
University of the Virgin Islands, St Thomas. USVI. He is the
reigning Calypso Monarch and in the world of calypso he is
better known as Chalkdust.
Cott is indebted to him for his contribution.