4 Ways Copyright Law Works with Respect to College Fight Songs

The University of Michigan Marching Band; Source: http://mmb.music.umich.edu/

With college football season comes renewed school spirit! Sing that fight song loud and proud through the campus streets or at the stadiums, and hum it all you want, but the law is always at play and explains a lot about why things are the way they are. Here are four ways copyright law interacts with the songs that truly ring clear in the collegiate athletics hype scene.

1. There is a reason why you hear university marching bands only play college fight songs & other related songs on television broadcasts of football games. It's copyright law!

There are five exclusive rights with copyright ownership, all of which the owner can license out: (1) reproduction (copying); (2) preparing derivative works (adaptation); (3) distributing copies to the public; (4) performing the work publicly; and (5) displaying the work in public.

So, think about what you see and hear when you are watching a college football game on television. Do you hear the marching band? Maybe faintly in the background as ambient noise in between plays on the field, but when they are prominently highlighted, they are likely playing their college fight song, alma mater song, or something of that sort. The halftime performances definitely are not aired with sound. Buying sheet music alone does not give the person the right to perform said sheet music in a commercial setting. The universities can buy a blanket performance license from music publishers like BMI or ASCAP so the marching bands can perform songs like "Seven Nation Army" and "Don't Stop Believin'" publicly (i.e., the fourth right above), but the broadcasters like ESPN cannot broadcast the bands playing those songs if it does not have the right to distribute the songs to the public (i.e., the third right above) via a license. When it comes to college fight songs, though... [see below]

2. Most but not all college fight songs are in the public domain based on current copyright duration law.

The Copyright Act of 1976 created different standards to be applied for copyright protected works' duration based on the date federal statutory protection was secured: (1) Works created on or after January 1, 1978 when the Copyright Act took effect; (2) Works that existed but were not published or copyrighted on January 1, 1978; and (3) Works under statutory copyright protection before 1978. Here are the ways in which the Act and its accompanying Amendments affect the duration of copyright protection a work can receive before it is deemed to be in the public domain:

1. Works created on or after January 1, 1978: These works automatically receive copyright protection once they are fixed in a tangible medium of expression. In general, the term of protection lasts for the duration of the author's life plus 70 years unless it fits into a special authorship category. If it is a work made for hire or the author is anonymous or uses a pseudonym, the term of protection lasts for either 95 years from first publication or 120 years from creation.
2. Works that existed but were not published or copyrighted on January 1, 1978: These works automatically receive copyright protection. The term of protection is generally the same as works created on or after January 1, 1978, which is based on the nature of authorship, but it goes a little further. The Act expressly gave these works at least 25 years of protection, and if the work is published before that time, it gets at least another 45 years of protection after that ("In no case, however, shall the term of copyright in such a work expire before December 31, 2002; and, if the work is published on or before December 31, 2002, the term of copyright shall not expire before December 31, 2047").
3. Works under statutory copyright protection before 1978: The Act carried over the duration terms of the previous Copyright Act of 1909 for the most part, though there are a handful of tweaks. The 1909 Act gave works 28 years of protection from the time the work was published (or from registration for unpublished works) with an option to renew, if taken, for another 28 years or else it expired. Then, there is the 1998 Copyright Term Extension Act after the Copyright Act of 1976 that does exactly what y'all guessed it does - it extended the term of protection! The Act itself extended the renewal option from 28 years to 47 years, and the 1998 law extended the renewal option from 47 years to 67 years. Hence, the maximum duration a work in this category could receive copyright protection for is 95 years from publication. Taking all the above into consideration, all works published in the US before January 1, 1923 are in the public domain! There are more intricacies for works in this category that you can read through here.

e.g., Louis Elbel wrote "The Victors" in November 1898 after Michigan's win against Chicago, giving the school its first Western Conference football championship. and copyrighted the song in 1899 (Note: This was just months after a very similar sounding song was registered for copyright protection, which is an interesting story). So, Elbel had copyright ownership of lyrics and his own musical arrangement, each of which was published in 1899. Applying the above, because the lyrics and his musical arrangement were published in the US before January 1, 1923, "The Victors" lyrics and his own musical arrangement are in the public domain!

Also, it is possible that an author chooses not to protect a work and instead dedicates it to be in the public domain right from the get-go. These dedications are rare, however, and without express authorization language such as "This work is dedicated to the public domain," it would not be smart to assume that the work is free to use.

3. Schools often have licensing departments that handle protecting its intellectual property and/or engage music publishing companies to handle the licenses on a large scale because each arrangement has its own intellectual property rights owner(s).

Did you catch on to how I tried to stress above that Elbel's musical arrangement of "The Victors" is in the public domain? Well, that's because each arrangement by each composer is its own work with its own rights owner. Some schools will act as its own publisher solely through a licensing department, but other schools contract out management and collection to a publishing company. It is not unheard of for an owner to also be publisher, but typically, publishing companies help manage copyright ownership plus the various types of intellectual property licenses available to those who want to use it commercially in a number of ways, including the following:

• Master License: Typically, though, the Master Recording is owned and managed by a record company.
• Sync License: When you want to use images that goes with the music like in a film, advertisement, TV show, or website, this is what you need.
• Mechanical License: When you want to sell or distribute the music via CD, downloads, vinyl, etc. or if you want to record a "cover" (i.e., a new version of the song), this is what you may need. The key here is that if you are doing a cover, you may not need special permission for a mechanical license if (a) the lyrics and melody are not altered, and (b) the song has been released to the public at least once before. Mechanical licenses have a statutory royalty rate in the US - 9.1 cents per song for each copy distributed.
• Song License: I totally just grouped these together and gave this my own label to explain it more easily. Aside from instrumentals, there are two components to a song itself when you dissect it: the lyrics and the musical composition. The songwriter owns the copyright to the lyrics while the composer owns the copyright to the composition, and often times they are two different people or groups of people. When all is said and done in most cases, you need both of these copyright owners' permission in addition to the Master Recording owner's permission to get a sync or mechanical license through the publisher.

In managing this, publishers are responsible for making sure those with an intellectual property interest in a song - both the songwriter(s) and composer(s) when they are different as well as the performer(s) - get paid for commercial uses of their works! Compensation passes from collection organizations like the Harry Fox Agency, SESAC, BMI, and ASCAP through the publishing company who then can take out a percentage of the sync, mechanical, and performance royalties as high as 50% for itself.

e.g., Watch twelve very different arrangements & performances of "The Victors" here.

e.g., MPL Music Publishing is one publishing company, and among other songs, it manages the licensing for (1) the Notre Dame Victory March, as performed by the Notre Dame Marching Band & the Dixieland Ramblers in addition to a MBL Master Recording; (2) Minnesota Rouser, as performed by the University of Minnesota Marching Band;  (3) the Buckeye Battle Cry, as performed by the Ohio State University Marching Band; and (4) Dear Old Nebraska U, as performed by the University of Nebraska Marching Band.

4. When it comes to college fight songs, many copyright "owners" have diligently policed the use of their songs and have targeted unauthorized users in lawsuits.

e.g., The University of Notre Dame puts itself out there as claiming to own all exclusive rights to "its name, trademarks, songs, mottos, and mascots, and prohibits their unauthorized use. The University has a long-standing policy of protecting the symbols that are associated with its name and its reputation as one of the finest universities in the country." The Notre Dame Licensing Department oversees requests and license applications and is in charge of all licensing policies.

e.g., Gerald Willis is alive and actively policing commercial use of his "Win with the Rebels" composition. The University of Nevada Las Vegas is relatively young considering it celebrated its 50th birthday in 2007, and Willis composed the school's fight song. So, when popular video game developer EA Sports used the song in its collegiate sports video games like NCAA Basketball 2006, 2007, 2009, NCAA Football 2006, 2007, 2008, 2009, and NCAA March Madness 2006, 2007, and 2008, Willis sued EA for $1.5 million, i.e., $150,000 per violating use, in 2008 for alleged copyright infringement. The court dismissed the lawsuit in 2009, reasoning that Willis could amend his lawsuit to include his beloved UNLV. Thus, even though he was the valid copyright owner, he chose not to continue his legal quest and outright dismiss it.

e.g., Music publishing company Bro 'N Sis Music, Inc., which mammoth Carlin America operates, sued Papa John's in 2011 alleging that the pizza company used the University of Kentucky's fight song "On! On! U of K" without authorization and never sought a license to use the song. Papa John's argued that it could use the song because it was an official corporate sponsor of the school and that through its marketing contract with IMG, which is the marketing company that manages UK's multimedia rights, it received permission to use the song for commercial purposes in advertising. Similar to Willis' lawsuit, the publisher did not name UK nor IMG as a defendant in its lawsuit. In contrast from Willis' lawsuit, the song was composed in 1922 by a UK professor with student-written lyrics added in 1923 and a federal registered copyright in 1925. Before he died, the professor passed along his copyright interest complete with renewal terms to his successor in interest, Bro 'N Sis Music, Inc.