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1ns and 2s with DJ-Sticha - What Musicians Need to Know About Copyright and Likeness Rights

by DJ-Sticha
01 Mar 2016 at 23:22hrs | Views
Ngaphamb' kokuba  ngingen' endabeni yanamhlanje, ngifun' ukuwuhlaba ngiwulawule ngendab' ezinhle, we finally launching our online music store on the 15th of March 2016. Don't say uvalelwa phandle ngoba I've been preaching about the site since January ngaze ngacel' abafun' ukudayis' umculo wabo to mail me their work or inbox on Facebook imbuzo bese ngibachazela further isebenza kanjani lento and sign a deal. The music store is called "Beats 98", iyenzelwe wena so grab this opportunity ngazo zombili and grow your music business. Asihlal' odabeni ke: What Musicians Need to Know About Copyright and Likeness Rights

Designing the artwork for your band's gig posters, website, album covers, and promotional materials is no easy task. Between artist designs, photographs of public places, and Google's near limitless array of images, the line between what's public, copyrighted, or otherwise restricted is not easily drawn. Here's what you should know before your next poster goes to the presses.

The two most common legal issues that a band will face while creating artwork are intellectual property (i.e., copyrighted materials) and publicity law (i.e., likeness rights).

Copyright issues

Copyright issues may arise if you use someone else's artwork or photos in your band's artwork. Copyright is a legal protection for those who create "original works of authorship." This extends to all images and essentially allows the copyright holder to control the rights to his or her work. No formal filing or paperwork is required for the existence of this protection: it is protected upon creation.

So what does this mean for you? Essentially, unless you have the artist's expressed permission (called a "license") to use his/her photo, painting, drawing, logo, or digital image, you're violating the copyright laws. Infringement can also occur if you use the work beyond the scope of a license; adapt an image without permission (called "art rendering") or ask a photographer to identically recreate the image. Remember, this protection is not limited to artists within this country alone. Due to international agreements, artistic works are mutually protected in nearly every country in the world.

If a court finds that you've infringed on someone's copyright, you can be held liable for statutory damages (between $750 and $30,000), actual damages and profits, or – in rarer circumstances – criminal penalties.

Of course, there are ways to legally use someone else's work without express permission. First, under the fair use doctrine of the copyright laws, it's permissible to use limited portions of a work (including quotes) for purposes such as commentary, criticism, news reporting, and scholarly reports. This, however, is not likely to apply to your band's artwork or promo materials. The second (and more applicable) option would be the use of images and artwork from a stock image resource, either fee-based or free. These websites use images that are public domain or have been created or licensed specifically for use by the site. Members are then allowed to use the materials in their own work. However, subscriptions and rights may vary. Finally, you can use images with certain types of "Creative Commons" protections, which, depending on the level of protection, may allow for use without consent.

Case example

In 2015 Yvonne Chaka-Chaka and Kelly Khumalo were at each others throats ngoba the latter took ingoma ka Yvonne and re-worked it wayibiza Asine. The song was originally produced by Chicco Twala for Yvonne back in 1997 titled "Rea lotsha", decades later Chicco remixed the song and gave it to Kelly Khumalo and they named it Asine kwasekuvuk' iverbal s'bhakela ke namanje uthuli alukahlali phansi asaz' iyozala nkomoni.

Likeness rights

In addition to using a copyrighted work, you can be also be sued for using someone else's name, likeness, or personal attributes without permission (most often when used commercially).

The right of publicity is essentially the right to control the commercial use of your identity and image. The most common way to get in trouble here is by using the legally protected name or likeness of another for commercial gain without consent. This differs from violation of copyrighted materials, because the claim is for the use of the person/likeness, not of the image itself. Here is an illustration: if you were to use a picture of Oliver Mtukudzi on your next album cover without permission, the photographer may have a claim for copyright infringement, and Mtukudzi would also retain a claim for violation of the right of publicity.

Case example

Several years ago, American Apparel used a photo of filmmaker Woody Allen, taken from his film Annie Hall, on a promotional billboard. Allen sued, stating, "American Apparel…calculatingly took my name, my likeness, and image and used them publicly to promote their business." The company ended up settling for a reported $5 million.

In S.A ngo 2007  the King of Kwaito Arthur Mafokate released ingoma efana ncamashi neka Dj-Cleo and called it "kusal' abasalayo". Eka Cleo was called "Sisi ngihamba nawe", these songs are very similar from the beat arrangements to the way amalyrics afakwe ngakhona, even though bacula ngezint' ezi different kodwa uyezwa nje ukuthi someone wagawul' omunye angazi who chopped who kodwa kwaba nokugawulana okuthize la kusukela lapho lamadoda womabili awathelelan' amanzi.

How to avoid legal trouble

The truth is, you won't likely get sued over your promo poster for cover songs at the local college dive. That being said, here are some steps you can take to avoid issues.

  • If there's a piece of artwork or photo that you absolutely must use, make sure to get the permission of the copyright holder in writing. Remember, the person who took the photo or is the photo subject is not necessarily the copyright holder.
  • Just because an image seems "stock" or free, don't count on it: look for indicators of ownership (artist's name, copyright "©," year of creation, trademark "™," etc.). If you have any doubts, get consent or forget it.
  • You have the option to create original work for your album or promo materials. This, however, is not inherently risk free. "Create original artwork whenever possible and, when doing so, never use the likeness of a person; this will only complicate things down the road. If any [design] reminds me of something else out there, I just don't use it "Remember that a graphic that means nothing in your part of the world might actually mean something somewhere else." In simpler words ngithi YEKELAN' UBUSELA,MAKE YOUR OWN.

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