55. The Structure, Function, and Operations of Intellectual Property Service Providers
B. Methods of Operation
Management Traditions by Genre (continued)
2. Music. Composers or lyricists generally enter into a direct licensing agreement with a music publisher in which all rights, excluding those for the public performance of their works, are assigned to the publisher. These creators (and sometimes the publisher, if the creators have transferred all rights to the publisher) assign the public performance rights to one of the three collective societies (ASCAP, BMI, SESAC) that administer these types of rights in the United States. Creators can also administer their public performance rights directly, since they assign them to the music societies on a nonexclusive basis.
Music publishers may assign mechanical reproduction rights to an agency that handles negotiations for these rights (e.g., the Harry Fox Agency), or they may direct-license them. Grand rights for large dramatic productions like theater, opera, ballet, or musicals are directly negotiated and licensed by the creators and/or their publisher because they are relatively rare, individually more valuable, and involve issues of artistic control and integrity as well as remuneration. The rights to publish the written score of a musical work also is direct-licensed, either by the creators or by their publisher, although these rights may be collectively licensed in certain circumstances (such as in the case of reprography, if the score is being photocopied).
3. Visual imagery–still and moving images. The management of rights for visual imagery is a complex mixture of traditions and independent efforts. Images produced by professional photographers may be direct-licensed by the photographer, assigned to a stock photography agency for centralized marketing and rights administration, or considered under a work for hire arrangement (where rights lie with the hiring agent). Rights assigned to a stock photography agency are usually exclusive for a set period of time.
Images that reside in visual resource repositories in universities or museums are traditionally direct-licensed or used under fair use provisions. The increasing demand for such images on electronic networks, and the recent work of the MESL project (which explored the feasibility of licensing these resources for educational use in this environment), has been the catalyst for two collective licensing initiatives (AMICO and MDLC) for these properties.
Moving images present a complex intellectual property management scenario of direct licensing between sources and distributors. So many creators are involved in the production of a motion picture (e.g., screenwriter, producer, director, actors), with so many varied interests at stake, that most uses are direct-licensed. There is, however, at least one instance in which collective licensing is more feasible: the administration of public performance rights for home videos. The major motion picture studios created the MPLC to administer the licensing of these rights so that the studios would not have to expend corporate resources to negotiate them individually.12
4. Works of art. Works of art that are still under copyright are direct-licensed by either the rightsholder (usually the artist, or his or her estate or heir) or an artists’ rights organization assigned to act as an agent on the rightsholder’s behalf. Galleries representing an artist also may act as an agent for certain rights. Many, if not most, artworks are in the public domain and can be displayed, reproduced, have derivative works made from them, and so on, without permission. In reality, however, even works in the public domain are difficult to "use," since they are often owned by individuals or institutions that can restrict access to them.
Because most museums, private collections, and other repositories that own art works often do not own copyright to the works, the administration of this type of intellectual property can be complex. These repositories may own the copyright on the images they make of these works, but the underlying right to the artwork represented in the image must be cleared with the rightsholder before the image can be used in display or publication.
5. Software. Software is licensed directly by the creator or company that developed the software product. (Videogames, which are sold rather than licensed, are a notable exception.) The software industry pioneered the concept of the "shrink-wrapped" license for individual users, in which license terms are deemed accepted by the opening of a sealed envelope containing the software, and by use of the software. There are questions as to whether one can legally enforce a license that can be read only after purchase of the product,13 but from the software industry’s perspective, shrink-wrapped licenses allow them to distribute low-cost software in great volume without the overhead and delay associated with contracts negotiated individually.
Large-scale software use in multiuser environments (businesses, schools, government offices, etc.) is negotiated via contracts such as network, site, or volume licenses. There are associations of software publishers that collectively work to combat software piracy (i.e., the Business Software Alliance [BSA] and the Software Publishers Association [SPA]), but they do not collectively license software products.
Electronic networks are fostering new developments in software distribution. Software brokers are emerging on the Internet with repertoires of software components that users can browse, purchase, and acquire electronically.14 A new trend toward making software available freely for individual use (such as World Wide Web browsers), and the rising popularity of concepts such as superdistribution (an approach to software distribution in which a software product is made available freely but usage is metered for payment) may alter the licensing and distribution paradigm under which the software industry currently operates.
6. Graphics. The graphics industry has grown exponentially with the development of multimedia and the World Wide Web, which have opened up new markets for these works (and for the software used to create them). Graphic works are both directly and collectively administered. The graphic arts industry is represented by a trade association (the Graphic Artists Guild), which has announced plans to develop a licensing collective in conjunction with the CCC and the American Society of Media Photographers (ASMP).15 Currently, most collective licensing for graphics takes place through stock photography and illustration agencies that manage both traditional graphics (i.e., works on paper such as line drawings and illustrations) and the newly emerging field of digitally generated graphics (i.e., clip art and illustrations, fonts, textures, backgrounds, and special effects).
Fonts present a unique category of intellectual property because they are an amalgamation of software and graphic art. (Throughout this report, fonts are grouped with graphic works, although some providers treat them as a specialty software.) Before computers were developed, type was created by designers and sold to typesetting businesses as part of typesetting equipment. The introduction of the Macintosh™ computer in 1984 made it possible for anyone to create a typeface, and the field grew exponentially as a result. Today, personal computers and electronic networks have transformed fonts from "add-ons" for a mechanical device to a category of intellectual property in its own right.16 Fonts are licensed directly (by their creators or by foundries) and collectively (by stock agencies). A cursory review of typeface foundries on the World Wide Web reveals that these organizations, which previously had licensed only fonts produced in-house, are increasingly serving as brokers for fonts created by others.
7. Dance. Choreography (the arrangement and composition of dance) is eligible for copyright if, like other creative works, it is recorded in a fixed format. In the past, dance was often reproduced by teaching movements to others through demonstration, repetition, and memorization. Today, dance choreography is routinely recorded on video, on paper (using stick figure drawings, textual descriptions, or movement notation methods such as labanotation), or in digital form (using dance notation and animation software). Copyright ownership of dance choreography belongs to the individual who records the dance in a fixed format. If a choreographer is employed by a dance company to create works specifically for the company, the copyright to the work belongs to the company as a "work for hire." However, if a choreographer is commissioned to create a work for an individual or dance company, copyright ownership is negotiated as part of the terms of the contract between the choreographer and the commissioning agent.17
Dance is considered a dramatic work under copyright law, and its uses generally entail complex staging and issues of artistic interpretation. Because of these factors, the rights issued for dance are usually grand rights, which are negotiated individually (i.e., direct-licensed) between the copyright owner and user.
8. Multimedia works. The newest and most complex genre of intellectual property, multimedia works combine two or more of the previously described intellectual property genres in a way that itself constitutes a new creative work. The copyright issues in a multimedia work can be overwhelming, particularly if the work contains hundreds or thousands of separately copyrighted works within it. Most copyrighted items in a multimedia work must be direct-licensed. However, the burden of undertaking direct licensing with so many rightsholders for so many items has led more users to support the idea of collectives or large multimedia licensing clearinghouses that can facilitate the rights acquisition process. No such clearinghouse has materialized, although if intellectual property management organizations continue their trend toward administering content from various genres they may eventually evolve into clearinghouse-like organizations.