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Music & Electronic Media Intellectual Property Guidelines
- General Information
- Examples of Prohibited Content
- Frequently Asked Questions — Musical Recordings
- Frequently Asked Questions — Other Electronic Media
- Additional Information
- Sources for Information
- Report Copyright/Trademark Infringement
General Information
What is a Song?
A song is a musical composition and consists of lyrics and/or music that can be written down as words (for the lyrics) or musical notes (for the music and for the melody to which the lyrics are sung). The person who writes the song is the songwriter or composer. A song can be performed by many different people many different times. For example the song "Landslide" has been performed by the Dixie Chicks, Smashing Pumpkins, and Fleetwood Mac.
What is a Sound Recording?
A sound recording contains a performance of a song written by a songwriter or composer. The performance brings life to a song that otherwise could only be read as sheet music. A recording captures a one-time event that can never be duplicated in the exact same way. For example the performance of the song "Landslide" by the Dixie Chicks.
Who is a Producer?
A producer creates the performance of the recording in a concrete form that can be listened to over and over again.
What are Mechanical Royalties?
Mechanical royalties are payments for the reproduction and distribution of recordings including recordings reproduced on CDs or distributed over the internet in the form of downloads or streaming. Regardless of whether a song is newly performed or a copy of an original recording, it is still subject to mechanical royalties. The amount of mechanical royalties is negotiated directly with the owner of the song or the publisher of the song.
Who collects Mechanical Royalty payments?
Mechanical royalties are either collected by the publisher/owner of the song, directly from the recording company or through the collection services of a mechanical rights agency, such as the Harry Fox Agency, AMRA, OR ACEMLA. A standard licensing form can be obtained through HFA's website.
Who sets the rate for Mechanical Royalties?
The negotiated amount is normally based on the statutory rate contained in the United States Copyright Act. The statutory rate is subject to increases from time to time under the regulations made by the United States Copyright Office. The current rate is 8.5 cents ($.085) per song and in some instances can be negotiated down to ¾ that rate to $.06 per song.
What is the American Federation of Musicians & American Federation of Television and Radio Artists?
These are unions established to represent feature artists, side artists, producers, and mixers in contract negotiations, music rights enforcement and other union activities. If your music was recorded under the jurisdiction of any union you will need to make sure all monies due are paid to these respective unions prior to your use of the CafePress.com service.
Examples of Prohibited Content
Because of intellectual property laws, CafePress.com has certain rules regarding the types of merchandise that you can make and sell through its service. For example:
- NO use of songs, recordings, movies, data, software or other electronic media without explicit authorization. For example, you cannot use samples of Britney Spears recordings, source code from Microsoft Windows, screen shots of the Terminator without permission. You also cannot modify the work of an intellectual property right holder without permission to avoid infringement, (e.g., Weird Al Yankovic creating Eat It from the Michael Jackson's song, Beat It).
- NO media with sexually explicit content which does not comply with the CafePress.com Questionable Material & Prohibited Content Guidelines.
- NO video taped recording of shows, live performances, sports events, theatrical performances, pay-per-view or other events without permission, (e.g., Recording a NBA game on VCD and selling it through your store).
- NO use of famous person's voices or likeness without their authorization (e.g., Rants of celebrity or recording of celebrities or other third parties without their authorization).
Frequently Asked Questions — Musical Recordings
I own the recording rights, so I don't need permission to use the song.
A musical recording includes two different types of copyrights, one to the recording and one to the song that is being recorded. Therefore, you must obtain a license from the owner of the song (usually, the songwriter or the songwriter's publisher) in order to record the song on a CD. You will also have to pay "mechanical royalties" to the owner of the song for each CD sold that includes the song.
I am signed with a record company; can I still distribute my music through CafePress.com?
If you are signed with a record company you may need to obtain a written consent form from that company allowing you to distribute your music through CafePress.com. In most instances the record company will hold the rights to each member of the group. To be sure you are in compliance, please check with your record company prior to the commencement of items being sold through your account.
I am recording a cover song, so no license is required.
A cover song is a new recording of a song that another artist has already recorded. This means that you will need a license to use the song, and you will still need to pay mechanical royalties to the owner of the song. Certain provisions of the Copyright Act require the owner of a cover song to give you a license (in exchange for payment) as long as you comply with those provisions. This rate must be paid for songs that you cover unless you negotiate a different amount directly with the owner of the song. If you choose to rely on the statutory compulsory license, the Copyright Act contains many other requirements with which it can be difficult to comply. Accordingly, it is usually easier to go directly to the owner and negotiate a license, if that option is available to you.
My recording contains "Samples" of other recordings and songs; is a license required?
If your recording contains samples of other musical recordings you will need to obtain permission to use these samples in your recording.
I am creating a "Compilation" CD so no license is required.
Compilations are small parts of several songs put onto one CD. They are treated similarly to copying the recording of a third party and will require a license from the publisher of the recording in order to be used in the compilation.
Do I need permission from people who helped me record the CD when it was all my idea?
Each person who contributes to a recording may be creating a separate copyrightable product. Each person retains the rights to their contribution unless they grant them to you in a written agreement. All of the contributors to a recording, including performers, producers and mixers, must explicitly consent to your ownership and use of the recording. Even if the recording is your idea, copyright law may not recognize you as the sole author unless you obtain a written agreement from each contributor acknowledging that you own the recording, including "work for hire." The agreement should also give you the right to use the recording in any format and in any medium you choose. To help ensure that the agreement is enforceable, it is advisable to pay each contributor a fee for their services and their grant of rights to you.
I wrote most of the words and music for my CD so no license is required.
The written words and music contained on a CD is treated very similar to a recording. Each person who has contributed in writing the song may have a vested interest in the music. Accordingly, a license which grants you the right to use their work in your CD may be required.
I am signed with a music publisher. Do I still have rights to the songs I wrote?
If you are signed with a publisher, you may have transferred your rights to the publisher under your agreement with them. Accordingly, you should check the agreement you signed with your publisher to determine if you are required to obtain their permission to self publish or self distribute (through your CafePress.com store) the songs you wrote.
I recorded the music at a concert I attended, so it is ok to use.
Unless you obtain an agreement from everyone who has contributed to the CD it cannot be reproduced. Generally, you cannot record concerts without the authorization of the performer. You may also need permission from the venue to bring recording equipment into the concert.
Will CafePress.com retain the rights to my music if I stop using the service?
CafePress.com is not a music publisher and will not retain the rights to your music. You are giving CafePress.com a limited license to reproduce your music on your behalf through its network. Once you cease your use of the CafePress.com music program, CafePress.com will cease its use of your songs and recordings.
Do I have to obtain a copyright for my creative work?
Current copyright law does not require you to register a creative work in order to hold a valid copyright for that work. However, a registration maybe required before you can file a lawsuit for copyright infringement. In addition, if you register your work within 5 years after the initial release of the work, you will have stronger evidence of the validity of the copyright. Essentially, that means that it will be easier to prove that you own the work.
Do I need a lawyer to register for a copyright?
To register a work for copyright, you may file an application with the Copyright Office of the United States. The application must include copies of the work and the appropriate filing fee. For more information, you can access the Copyright Office website at http://www.copyright.gov.
Frequently Asked Questions — Other Electronic Media
I am writing a software program, so I don't need a license.
If the software you are creating contains elements of a third party software or is a derivative of a third party's work, you may be required to obtain permission from the other software company prior to the sale of your software.
Do I need permission from people who helped me create my VCD or Data Software?
Each person who contributes to your Video CD (VCD), software program or the like may be creating a separate copyrightable product. Each person retains the rights to their contribution unless they grant them to you in a written agreement. All of the contributors to an end product, including performers, producers, software engineers, programs, developers and other contributors must explicitly consent to your ownership and use of their work. To help ensure that the agreement is enforceable, it is advisable to pay each contributor a fee for their services and their grant of rights to you.
Additional Information
For additional information and FAQ's on Intellectual Property, please visit our Copyright, Trademark and Intellectual Property Guidelines. For additional information on Questionable Material and Prohibited Content, please visit our Questionable Material & Prohibited Content Guidelines. For additional information and FAQ's on Publishing, please visit our Publishing Intellectual Property Guidelines.
Sources for Information
For additional information on Copyrights, please visit the United States Copyright Office Library of Congress at http://www.copyright.gov. For additional information on Mechanical License agreements visit the Harry Fox Agency at http://www.harryfox.com.
Intellectual Property Rights Policy
We encourage intellectual property rights owners to contact us if they believe that their rights have been infringed by a user of our service. We also encourage our users to contact us if they suspect that another user is infringing the rights of a third party. Please visit our Intellectual Property Rights Policy for information regarding the procedure to notify us of a potential infringement by a user of our service.