As the Christmas season gets underway, people are gearing up to enjoy the time-honoured tradition of queuing up their favourite Christmas songs and albums to get into the holiday spirit. Not to be left out, the local music artistes are also joining in the Christmas spirit, to provide their renditions of well-known Christmas classics, often with a refreshing Jamaican twist. However, and especially at this season, it is important for artistes, who are re-recording or “covering” these well-known classics, to bear in mind the relevant copyright considerations, so as to be in full compliance, and so that the joy of Christmas is not met with New Year despair.
The copyright holder has exclusive rights
In Jamaica, once a person creates a literary, artistic, dramatic, or musical work, eligible for copyright protection, copyright automatically vests in this work. While registration is recommended as it provides proof of the ownership of the copyright in the work, copyright nonetheless, comes into being immediately upon the creation of the work, whether registered or not. Further, copyright protection in Jamaica does not extend only to Jamaican works, but can extend to protect the copyright works of other jurisdictions, in line with Jamaica’s international intellectual property obligations.
With copyright, there are certain exclusive rights granted to the copyright holder including the right to copy the work, issue copies of the work to the public, and perform the work in public. Where any person does any of these acts without the authorisation of the copyright holder, in relation to the whole or a substantial part of the work, this would constitute an infringement of the work. Therefore, an artiste covering an original song must be cognisant of these rights, as, if their reproduction or cover of the original song is done without receiving the appropriate authorisations, this cover will be an infringing work, and open the artiste up to the various penalties of infringement. These penalties include suit by the copyright holder, which, if the copyright holder is successful, can result in the payment by the infringing party of damages and even additional monetary penalties having regard to the flagrancy of the infringement. A court can also order delivery up of copies of the infringing work.
In light of the potentially severe, and costly penalties for non-compliance with copyright in relation to covers of original Christmas songs, it is imperative for artistes to take very seriously, the copyright considerations of creating these covers.
A licence to cover
While the copyright holder has the exclusive rights described above, an artiste may be able to lawfully produce a Christmas cover, provided they have the proper permission to do so. This permission comes in the form of a licence. Before an artiste records, performs, or otherwise utilises a cover of an original song, a licence from the copyright holder must be obtained, and particularly for musical works, where there may be multiple copyright holders, the requisite permissions must be obtained from all the copyright holders whose exclusive rights would be infringed without authorisation. In this respect, it may be a good starting point for an artiste to ascertain whether the copyright holder of the original work is a member of a collective management organisation (CMO). Where the copyright holder is registered with a CMO, this CMO will generally administer the rights in the works of the copyright holder, and this administration includes the granting of licenses in relation to the exclusive rights of the copyright holder. An artiste who intends to utilise a copyright work for a cover, could therefore, seek the relevant licence(s) from the CMO. Most popular artistes are registered with CMOs, and these CMOs are well-known for being vigilant in policing, protecting, and enforcing the rights of their members.
While the Copyright Act does not mandate that a licence must be in writing, this is highly recommended so that the parties to the licence are very clear about the relevant rights and obligations, and further, that there is proof as to the terms of the licence. For a cover, it is important to establish what the licence is being provided for, that is, does the licence cover just the recording of the cover, or does it also provide for performances or other actions. The licence may also cover to what extent the artiste can make changes to the original work to add his or her own spin on the original work, and matters such as the duration of the licence, and the fee to be paid in relation to the licence.
Therefore, though it may seem arduous and unduly burdensome for an artiste to be required to obtain any relevant licenses from copyright holders in order to put out a Christmas cover, it is necessary in order to avoid the possible penalties of infringement, and the possibility of the artiste’s hard work in the cover being frustrated by the hurdles of copyright law. Consequently, this yuletide season, before putting out a cover of that beloved holiday song, artistes must be careful and take all necessary steps in relation to the copyright considerations.
Lisa Rhooms is an Associate at Myers, Fletcher & Gordon, and is a member of the firm’s Commercial Department. Lisa may be contacted via lisa.rhooms@mfg.com.jm or www.myersfletcher.com. This article is for general information purposes only and does not constitute legal advice.
