Intellectual Property Licensing for Media Replication
Because of the Internet and other technological developments, there are many creative ways in which individuals can easily infringe on another's intellectual property rights when creating their own works, sometimes without even being aware of the infringement.
Due to the current legal environment in the media industry, it is very important for you and Healey TMS to assure that proper permissions have been secured for any CD and DVD replication order. Failure to properly license intellectual property used in a replication order can result in significant monetary legal damages against you and any other party involved in your transaction, including brokers and Healey TMS. This is true even if you are not aware that you have infringed on someone else's rights. It is ultimately your responsibility to make sure you have all the applicable intellectual property rights.
Intellectual Property Licensing
- What is a license?
- What must be licensed for use, and who can grant that license?
- What is "Public Domain" and when does it apply?
- What does Healey TMS need from me?
What is a License?
A license is a legal means for an intellectual property rights (IPR) owner to grant permission for a specific use of their intellectual property. The rights to software products, recorded audio tracks, published music, and motion picture assets not in the public domain are all owned by a person or organization. If you wish to utilize any of these assets on your disc order and you are not the IPR owner, you must secure the rights to do so through a license from the IPR owner. If you are the actual IPR owner, you must state this in writing to Healey TMS through a Replication Rights Form (RRF) available on this site here. You must also provide Healey TMS with all necessary documentation to evidence your rights ownership.
A license can take the form of:
A formal letter from the IPR owner on their letterhead indicating the specific use granted for their property. A grantor of rights letter template is available on this site (in Word format) here.
A formal document of registration from an organization that serves as a licensing clearinghouse.
A copy of a contract or formal agreement that exists between the user of the property and the owner of the property.
What must be licensed for use and who can grant that license?
Software products, recorded audio tracks, published music and motion picture assets may all need to be licensed for use. Determining whether licensing is needed may require performing research with licensing clearinghouses, Internet search engines, copyright searches or an agency that specializes in this activity. Intellectual property law can be very complex and may not always be very definitive. In all cases, proof must be demonstrated to Healey TMS's satisfaction that appropriate licensing has been granted to the individual or organization that has procured the CD or DVD replication order. Healey TMS reserves the right to request additional information in order to verify the licensing information being provided, as well as to contact the underlying rights owner to confirm the validity of the license.
Software
The vendors who are creating the product determine the licensing needs for software products. Most commercially available packages require a Software Distribution Agreement. This is different from the End User License Agreement that you traditionally see when you install a software package on your computer. Some freely distributed programs still require distribution licensing even though they are free (like web browsers). You should consult the software vendor to find out their specific requirements. Some software companies allow you to register for a distribution license of their products on the web.
Audio - Recorded audio tracks require two different types of licensing
License for the recorded track from the artist.
License for the published song used in the recording from the music publisher.
The recorded track license must demonstrate a chain-of-title from the actual recording artist or organization representing the artist to the individual or organization procuring the DVD or CD order.
NOTE: All recorded tracks created since 1972 are protected by Federal copyright, so performing a copyright search may be helpful in determining the current IPR owner.
Use of a published song on an audio recording requires a per copy fee to be paid to the music publisher. These fees are called mechanical royalties. Mechanical royalties can be paid directly to the publisher, or the publisher can establish a relationship with an agency to handle the negotiation of royalty payments, collections and disbursement to publishers.
In the United States, mechanical royalty payments can be registered and made through online services like Songfile (www.songfile.com) or through the Harry Fox Agency (HFA) (www.harryfox.com). Songfile can be used strictly through the Internet for limited quantities and specific uses. Songfile will send an email response with appropriate registration information. HFA can be used when Songfile is not applicable. Please consult Songfile's site to determine when it can or cannot be used. HFA can also provide a license for song use. In the future, HFA activities will be available through the Internet.
In Canada, the equivalent agencies are: the Canadian Musical Reproduction Rights Agency Ltd. (CMRRA) and the Society for Reproduction Rights of Authors, Composers, and Publishers In Canada Inc. (SODRAC). Presently, these agencies cannot perform license registration online. Actual licenses may take weeks to obtain, but you can contact the agencies in advance to receive email permission for manufacturing purposes.
A term commonly used in the music industry is Compulsory License. This is when a published song has been previously recorded by an artist and another artist wishes to re-record it. Federal copyright law allows for a compulsory license, which gives an artist the ability to re-record a song and pay a pre-defined mechanical royalty rate as established by the Federal Government. Agencies like Harry Fox also allow for registration of these licenses. Compulsory licenses only apply when the song has already been recorded by another artist.
Sampling is when portions of a previously recorded audio track are utilized in creating a new audio track. For tracks to be sampled, appropriate audio licensing for the sampled track is required from the recorded track IPR owner and the music publisher. Audio utilized from production music libraries also requires licensing for replication. The licensing may be in various forms depending upon the music library vendor. Traditionally, a Master Use Agreement will be issued by the music library vendor when the specific usage fees for the chosen music are paid.
Video
Legal protection for video and motion picture assets was established under Federal copyright law since 1912. Most major motion pictures will have a registered copyright. Even though a motion picture can have a terminated or expired copyright, other aspects of the work may still be covered through other copyright protection (i.e. musical soundtracks, use of the likeness of individuals, etc.). Addressing the copyrights of a motion picture can be very complex and may require legal assistance.
When putting together a multimedia application that involves video and music, music licensing may also be needed. If a recorded audio track is used in conjunction with a video and the resulting product is to be sold to the public, the following license(s) would be needed from the IPR owner(s):
A Videogram license for the recorded track from the IPR owner of the recorded track.
A Synchronization license provided from the music publisher.
What is "Public Domain" and when does it apply?
Public domain pertains to creative work that is not protected by law. Intellectual property rights generally would not apply to items considered in the public domain. For this to occur, either copyright protection for the work would not be applicable, or the copyright must have been terminated or have expired. A claim that a creative work remains in the public domain and does not require licensing use should be substantiated by a legal opinion from the customer's legal counsel. This type of legal information is required from the customer in absence of proper licensing. As mentioned earlier, there are agencies that specialize in license searches and can give their opinion on whether an asset is in the public domain.
What does Healey TMS need from me?
With every new order, Healey TMS must have proof that each customer possesses the rights to replicate the contents of all CD and DVD orders. We can provide the customer with a Replication Rights Form (RRF). The RRF must be completed by the individual or organization that is the originator of the disc order. However, even if the form can be completed stating that the customer is the IPR owner of the entire disc contents, Healey TMS retains the right to require additional information in order to verify, in Healey's discretion, the information contained in the form.
If the customer is not the IPR owner of the disc contents, then the appropriate additional licensing documentation must be provided for all audio tracks, software and video assets. Healey TMS will review all of this information, including disc contents. Trained personnel will use various tools to analyze the source media and information received. Any inconsistencies will be reported to the customer for clarification. This review, however, does not relieve you of your responsibility for making sure that all appropriate licensing has been obtained, and you will be required to indemnify and hold Healey TMS harmless if any of the material provided is found to be infringing.
In summary, if you are not the IPR owner of any assets used on your project, the following are the minimum types of agreements that you should pursue in support of your CD or DVD replication order:
Software Distribution Agreement.
License for use of a previously recorded audio track.
Mechanical License from the music publisher.
Compulsory License from the music publisher if song has been previously recorded.
Master Use Agreement for any production music library material.
Proof of Copyright for motion picture or video material.
Videogram license for recorded audio tracks used in video/motion picture to be sold commercially.
Synchronization license from the music publisher for use of song in any video/motion picture.
Legal proof that an asset is considered to be in the Public Domain.
A Synchronization license provided from the music publisher.
Healey TMS reserves the right to request any additional information it feels appropriate in order to confirm that all required intellectual property rights are present. Healey TMS also reserves the right to accept or reject any orders it receives, in its sole discretion.
