The United States Court Of Appeals for the Second Circuit, Docket No 95-7887, ABKCO Music Inc. and ABKCO Music and Records, Inc., v. Stellar Records, Inc. And Performance Tracks, Inc. (96 F.3d 60) Deals with the “Phonorecord” Phenomenon on Sebtember 19, 1996.
http://www.kentlaw.edu/e-Ukraine/cop...v_stellar.html
I have taken the liberty of pulling sections from this case for your review:
First some background:
The case surrounds ABKCO’s ownership of seven copyrights of Mick Jagger and Keith Richards’ of the Rolling Stone including, “Satisfaction (I Can’t Get No),” “Jumping Jack Flash,” and “Brown Sugar.” Stellar Records attempted to use these songs by complusory licnese:
"Under the Copyright Act of 1976, 17 U.S.C. Section(s) 101 et seq., the producers and distributors of karaoke versions of songs must acquire synchronization or "synch" licenses from the copyright owners of the songs to legally manufacture karaoke discs; a copyright owner may negotiate, if so disposed, the karaoke use of a song and the terms of the authorizing synch license with a karaoke maker Tracks did not secure synchronization licenses from ABKCO, but instead, viewing its products as "phonorecords," obtained "compulsory licenses" for the compositions, pursuant to the Copyright Act, 17 U.S.C. Section(s) 115, which permits the manufacture and distribution of new "cover" versions of copyrighted musical works as long as the licensee follows the statutory notice requirements and pays the proper royalty fees. Section 115 of the Copyright Act provides in part:
"Compulsory license for making and distributing phonorecords
"In the case of nondramatic musical works, the exclusive rights . . . to make and to distribute phonorecords of such works, are subject to compulsory licensing under the conditions specified by this section.
"(a) Availability and Scope of Compulsory License.—
"(1) When phonorecords of a nondramatic musical work have been distributed to the public in the United States under the authority of the copyright owner, any other person may, by complying with the provisions of this section, obtain a compulsory license to make and distribute phonorecords of the work. A person may obtain a compulsory license only if his or her primary purpose in making phonorecords is to distribute them to the public for private use. . . .
"(2) A compulsory license includes the privilege of making a musical arrangement of the work to the extent necessary to conform it to the style or manner of interpretation of the performance involved, but the arrangement shall not change the basic melody or fundamental character of the work, and shall not be subject to protection as a derivative work under this title, except with the express consent of the copyright owner.
"Under the Copyright Act, "phonorecords" are defined as material objects in which sounds, other than those accompanying a motion picture or other audiovisual work, are fixed by any method now known or later developed, and from which the sounds can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. The term "phonorecords" includes the material object in which the sounds are first fixed.
"Tracks' contention that CD+G's are "phonorecords" and thus the video aspect is within the grant of its compulsory licenses can be disposed of quickly. The plain language of the Copyright Act refutes Tracks' view. Phonorecords are defined as objects on which "sounds" are fixed; CD+G's, however, are objects on which sounds and visual representations of song lyrics are fixed. Moreover, the term phonorecord expressly excludes "audiovisual works," yet CD+G's constitute "audiovisual works," since they "consist of a series of related images"--the lyrics-- "together with accompanying sounds"--the music. 17 U.S.C. Section(s) 101."
PCGUMSHOE NOTE: It would appear to me that the “INDUSTRY” of manufacturers really need this “phonorecords” title to screw us AND the people holding the copyrights. It is my belief that there are MANY songwriters, producers, and singers out there that see karaoke as a “TACKY” form of entertainment and that the quality of the performances would be so bad that they may actually PREVENT people from buying their music, seeing their shows, or enjoying their art.
In that I am called upon by many of my patrons to manufacture songs that don’t exist in karaoke, I feel akin to the manufacturers who want to call their disks phonorecords, but clearly the definitions of these disks are not the same as what we produce. There needs to be a better clearing house for our industry and there should be no song that CAN’T be made into karaoke because someone doesn’t like OUR art form.
I hope this helps.