Music Industry / For Artists Music Licensing & Copyright

As a musician, you’re probably familiar with the word copyright. You know that copyright is a way of protecting your interest in your musical creations, and that there are ways of holding others accountable when they violate that interest. But how do you actually exercise those rights? Copyright law is a complex subject, and music is one of the most restricted and licensed areas of copyright law, according to Washington State University. Musicians can easily make the mistake of relying on oversimplifications that don’t actually reflect the state of current rules, says attorney Jon M. Garon. This guide will give you an overview of copyright law as it applies to musicians and composers. Since we can’t possibly cover every situation, however, talk to a lawyer if you have specific questions about your own work.

What Does a Copyright Cover?

Although we use the word “copyright” as a singular noun, copyright is best thought of as a bundle of rights, all of which relate to one particular artistic expression (like a song), notes Public Knowledge.
For music, these rights include:

  • The right to make copies of the work
  • The right to make derivative works (like remixes or arrangements)
  • The right to sell copies of the work
  • The right to perform the work in public
  • The right to give others permission to do any of the above (that’s what licensing is)

Music poses a complex challenge for copyright law because most musical works come in at least two forms: the written composition, which often (but not always) involves sheet music, and the sound of the performed work itself. The U.S. Copyright Office treats musical compositions and sound recordings separately in some key ways.
The owner of a certain piece of the copyright bundle can also affect the outcome of a copyright lawsuit — and the question becomes even more complex when a musical work is made “for hire” or when more than one person collaborated on its creation.

Fortunately, one aspect of copyright law for musicians is pretty simple: When copyrights apply. Generally speaking, a music composition or sound recording is protected by copyright law when it is an “original idea” that is “fixed in a tangible medium of expression,” according to the Digital Media Law Project. Simply having an idea, or even singing it out loud, isn’t enough: You need to write it down or make a recording of it in order for the idea to have copyright protection. And, as Mateo Aboy demonstrates, the details of your process can affect copyright. For instance, if you’ve sung or played an idea several times, you might need to check that nobody recorded your composing session before you did!

To receive the full protection of the law, you’ll also need to register the copyright once the work is fixed in a tangible form. The U.S. Copyright Office provides instructions for registering copyrights in musical compositions and sound recordings. Registration provides certain benefits, including the ability to receive statutory damages in addition to actual damages if you sue someone for infringing your copyright and win.

Copyright and Licensing in Music: The Composition

As we mentioned above, copyright law for music considers whether the work in question is a “musical composition” or a “sound recording.”

The U.S. Copyright Office says a musical composition “consists of music, including any accompanying words, and is normally registered as a work of performing arts. The author of a musical composition is generally the composer and the lyricist, if any. A musical composition may be in the form of a notated copy (for example, sheet music) or in the form of a phonorecord (for example, cassette tape, LP, or CD).”

As legal scholar Robert Brauneis notes, the decision to allow musical compositions to be registered in the form of a recording was a reflection of the ways in which composing changed throughout the 20th Century.
Technology made it possible to compose without ever writing musical notes on paper. Today, a computer-saved file of a piece of music written digitally often counts for copyright purposes in the same way that notes written on staff paper or a tape recording counted in years past.

Note, too, that there is an important difference owning a copyright and registering a copyright with the U.S. Copyright Office. If, for example, you have a unique, original beat you made saved to your computer, you certainly own the copyright to the composition, but it would be a hard right to enforce without actually registering that copyright with the U.S. Copyright Office.

Copyright and Licensing in Music: The Performance

Musical compositions can be in the form of a sound recording. So, what’s the difference between a recorded “musical composition” and a “sound recording?”

According to the U.S. Copyright Office: “A Sound Recording results from the fixation of a series of musical, spoken, or other sounds. The author of a sound recording is the performer(s) whose performance is fixed, or the record producer who processes the sounds and fixes them in the final recording, or both.”

The USCO also warns: “Copyright in a sound recording is not the same as, or a substitute for, copyright in the underlying musical composition.” However, if a music composition and sound recording are identical, you may register the copyright for both on the same form.

The difference between musical composition and sound recording can be seen in this example from TuneCore’s blog about the classic song “I Will Always Love You,” which Whitney Houston recorded on Arista Records. Arista Records owns the copyright to the sound recording of Houston’s iconic performance. However, the music and lyrics to the song were written by Dolly Parton, who owns the copyright to the song’s musical composition.

Composition vs. Recording for Musicians

Why do musicians need to know the difference between composition and recording? Not only does this difference affect copyright and registration, but it also affects which licenses a musical work’s owner can grant to others in order to use the work.

Consider “I Will Always Love You.” An ad agency that wants to use the beloved Whitney Houston recording will need to contact Arista Records for a license because the work they want permission to use is that particular sound recording. The agency doesn’t want just any singer performing “I Will Always Love You” — they want Whitney Houston’s performance of it. They would also need to contact Dolly Parton, as she holds the rights to the composition itself.

Suppose that instead of using Houston’s recording the ad agency decides they want an emerging artist to perform a cover of the same song. For a cover, the agency only needs to license the song’s sheet music and lyrics — the composition — from Parton.

Licensing is a nuanced business, as TuneLicensing points out. For musicians, however, it helps to remember that a license to use a particular recording is not the same thing as a license to perform the song yourself — and you might be in a position to grant one kind of license but not the other, depending on how you were involved in creating a particular musical work.

Other Details to Consider

Here are a few other details that can affect copyright from a musician’s perspective:

  • Who made the work and for what purpose? The copyright in a “work made for hire” may belong to the person who hired you to make it, not to you. Check your contract with the client for specific copyright terms.
  • When does a musician not have a copyright? Copyright law has certain limits. For instance, if you sell CDs of your work, the buyer can play that CD for his or her own enjoyment without infringing your rights — even though playing the CD can be seen as a form of “performance.”
  • Copyright doesn’t live forever. Eventually, every creative work loses its copyright protection and falls into the public domain. The rules for when this happens are complex, however. The law firm of Brown & Michaels provides a flowchart that can help you determine when copyright expires.

Copyright law moves more slowly than technological advances. As a result, many tools exist that can make copyright and licensing easier for musicians, Jamie Davis-Ponce says. New approaches to copyright, like Creative Commons licensing, have also made it easier for musicians to share their work while still receiving the credit they want, notes Simon Trask.

Next week: If you are a creative director, agency or simply someone interested in licensing music for a project you’re working on, we have a guide to copyright law just for you.

Images by: Austin Neill, Valentino Funghi, Claus Grünstäudl

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