Category: Legal Advice

Understanding Music Copyright: Originality and Ownership of Music

Understanding Music Copyright: Originality and Ownership of Music

By David Frazee Estimated reading time: 11 minutes

written by: David Frazee

You’ve just finished writing a new song, and you think your band should play it at your next gig. After you play the song for the other band members, your lead singer comes up with a great a bridge and your bassist suggests some great chords. You make those changes and run through it a few times. Your drummer’s friend, who was just hanging out, suggests that you pick up the tempo. After he leaves, you try it, and it takes the song to the next level.

Who is the author(s) of the final song?

This is one of the first question in any copyright lawsuit, and it is an important question because only an owner (or “author”) is endowed with the initial rights that come with a song, as discussed in my earlier articles.

There are two things that you should know:

  1. what can you copyright, and
  2. who are the authors of the final song

Since I am willing to bet that, when a great song idea comes to you, you do not stop and contact a copyright lawyer before writing it down or playing it for your band, let’s cover these basics before you begin writing your next song. Let’s get started.

To Be Copyrighted, It Needs To Be Original

Before we cover ownership, you need to be able to identify when you have a work that can be copyrighted. For a song or work to be copyrightable, it must be original. Originality has two ingredients:

  1. creativity, and
  2. independence

The “creativity” required is minimal, but it does mean you come up with something more than minor, inconsequential additions to common phrases. Whether it is the melody, harmony, or rhythm, you need something to distinguish your music.

Second, you need “independence.” Independence simply means you cannot copy someone else’s work. It must reflect your own contributions and thoughts.

creativity + independence = originality
originality is needed for copyright
copyright is a sign of ownership

Seems easy enough, right? It’s not always so clear cut; your subconscious can trick you into thinking you did not copy someone else’s work when you really did. This happened to singer and songwriter Michael Bolton. Bolton had grown up listening to artists like the Isley Brothers, who had created and copyrighted a song titled “Love is a Wonderful Thing”. Nearly thirty years later, Bolton unintentionally created a hit song of the same title and with a similar sound. Even though Bolton was convinced that he had not copied the Isley Brothers’ song, the court ruled in favor of the Isley Brothers, saying Bolton’s subconscious had tricked him into thinking he wrote an original song. The unintentional trick was not enough of an excuse, and the jury awarded the Isley Brothers all profits from the song and some of the album profits (for a grand total of over $5 million). Yikes!

To avoid originality problems, try playing the song for someone else to see if they think it sounds similar to anything they’ve heard before.

Why is Ownership/Authorship So Important?

The author is the person who actually created the work, who translated an idea into a fixed, tangible expression. This process of creating and fixing entitles the author to copyright protection.

Because of the rights that come with ownership, it’s a key topic during many copyright lawsuits. Reasons for this include:

  1. Unless you agree to other terms, co-authors are given equal ownership in the resulting work, regardless of how much originality and creativity they actually contributed.
  2. A co-author is permitted to continue recording and performing the song without fear of infringing the copyright. This generally applies even if you leave the band or the band splits up.
  3. One co-author can agree to give other performers (or companies) a non-exclusive license to play and record the song without obtaining the permission of the other authors. However, the only way to give away the exclusive rights of the song to another would be to get permission from all the co-authors.

As you can see, there are huge benefits to being named a co-author, as well as huge benefits to maintaining sole authorship. Unless details are set ahead of time, things can get pretty messy in court.

To avoid these issues, many bands enter into a contract with each other called a partnership agreement. The agreement can address how to split songwriting income and how to decide authorship when only one or few members help write the song. Additionally, they can prevent one co-author from providing a non-exclusive license to another without the other authors’ consent. You should consult with a copyright attorney before signing or entering into any partnership agreement with your band members to protect your rights.

Determining Who Owns the Copyright

Now that you understand what can be copyrighted and why copyright is so important, let’s discuss ownership, namely how to know if you own the song solely or share ownership with someone else. We’ll assume you didn’t have a partnership agreement, and we’ll use an actual case to illustrate this issue.

Sole Ownership

During a recording session for his hit song “Izzo (H.O.V.A.),” Jay-Z was joined by a guest, Demme Ulloa. While she was visiting, Ms. Ulloa spontaneously created and began singing a countermelody to the song. Jay-Z heard the countermelody. Ms. Ulloa left the studio with an agreement that she would get credit if Jay-Z decided to use the countermelody, which he did decide to do.

Jay-Z had created the song. Logically, he would be the sole owner. However, that countermelody throws a wrench in things. Had it not been used, Jay-Z would unquestionably be the author of the song. But it was used; furthermore, their agreement didn’t discuss ownership or authorship… just credit. After Ms. Ulloa discovered that Jay-Z had used her countermelody, she filed a lawsuit against Jay-Z and other defendants, claiming she was a co-author of the song.

So, does Jay-Z now have to share ownership of the song with Ms. Ulloa?

Let’s go back to our criteria for ownership: it must be copyrightable, so it must be original. Like a melody or rhythm in a composition, countermelodies generally can be copyrighted on their own, separate from the song’s other parts. Even though Ms. Ulloa’s countermelody was based on the original underlying melody, the court said it contained enough originality to be copyrightable.

However, having something that is copyrightable did not automatically mean that Ms. Ulloa and Jay-Z were “co-authors” of the song. For Ms. Ulloa to share in ownership, her situation must qualify as one of the exceptions to sole authorship:

  1. the joint work exception, and
  2. the work created for an employer exception

It was over these exceptions that Jay-Z, the other defendants, and Ms. Ulloa argued during the lawsuit. Let’s look a little closer at them.

Joint Ownership

The Copyright Act defines joint work as “a work prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole.”

For joint ownership to be present, the individuals involved must intend to be co-authors of a song. This is more than simply working together; it’s the intent to be co-authors of a copyrightable work.

In the Jay-Z case, Ms. Ulloa claimed that she was a joint author in “Izzo (H.O.V.A.)” because she added a countermelody. After Ms. Ulloa sang the countermelody for Jay-Z, they discussed the possibility of incorporating it into the work. However, she did not sign a contract or discuss any terms beyond receiving credit as the vocalist (if her countermelody was eventually used). The court decided that Ms. Ulloa’s claim for authorship had no basis because there was no evidence that Jay-Z intended to share the authorship of the track with her. Briefly working together was not enough to show the needed intent.

Interestingly enough, you can be co-authors with someone you have not even met. While it may be easier to conclude a joint work has resulted if the authors have met in person or know each other, it is not a requirement. All that is required is the authors intend their work to be joined with the work of another.

How does joint authorship work with people who haven’t met? Imagine a musician, John, composes some new music; John takes that music to a publisher to find someone else to add lyrics. The publisher buys John’s music and asks Lauren, who John does not know, to compose lyrics to accompany John’s music. Although John and Lauren had never met before, when their work is merged into one song, they become joint authors in the final composition. This is because both understood and intended their work be joined with another person’s work.

Employee-Employer Relationships

US Copyright Law also molds an exception for employees hired to create songs for their employer, called “work made for hire.” Instead of staying with the author, the author’s employer owns the rights to the work. Generally, this occurs because the author signed a contract (containing a clause to that effect) before the song was created.

Here are two examples of “work for hire”:

  1. Let’s say John is hired as a writer and composer of advertisement jingles at ABC, Inc. The copyright for the jingles John creates will likely not be John’s but will belong to ABC, Inc. This meets the work for hire criteria, specifically “work prepared within the scope of employment.” It is John’s job to create these jingles; it is why he was hired.
  2. Now, say ABC, Inc. wants to place the same advertisement in Spanish. They hire Ben on a limited basis to translate the work. Even though Ben altered the lyrics, the copyright to the Spanish version remains with ABC, Inc. This is the second category of the work for hire exception, called “specially commissioned work.”

While different, both derive from the same concept: you can give away your rights to a song before you even write it. So, if you try to claim it as your own, it is stealing your employer’s property.

Now, there are exceptions to the “work for hire” concept. Let’s say that, while employed writing jingles for ABC, Inc., John wrote songs for an album. His employer would not own these songs unless the employee contract John signed gave ABC, Inc. rights to the songs in addition to the jingles.

Now, back to the Jay-Z case. Jay-Z argued that Ms. Ulloa was an employee because she signed a tax form with his company. To Jay-Z and the other defendants, this was enough to make the countermelody company property. However, the court did not agree. Even though Ms. Ulloa was somewhat inexperienced and filled out a tax form, the court found that she independently possessed the skills necessary to produce an original work and had only filled out the tax form to contact the defendants.

Wrapping Up

Now that you have some basic concepts, let’s go back to the scenario that started this article.

As we discussed, the most important question is whether you and your band intended to be co-authors at the time you wrote the song. Chances are the court will find that you intended to be co-authors with your band members, especially if you have co-authored songs in the past.

However, if you and your band have a written agreement that the authors are only the members that contributed copyrightable work to the song, then you, your lead singer, and your bassist at the very least will be co-authors. Remember, unless your agreement says otherwise, each member who contributed to the song will have equal ownership regardless of how much originality and creativity they actually contributed. However, if you and your band previously decided all songs created by band members were the bands collectively, each member will have an equal ownership in the song regardless if they contributed to the song at all.—

But what about your drummer’s friend who suggested you take the songs up tempo? More likely than not, your drummer’s friend is not going to be a co-author because his suggestion is not going to be considered “copyrightable.” Additionally, like Ms. Ulloa in the Jay-Z case, there is no evidence that you or your band intended to create the song with your drummer’s friend.

Disclaimer:The above article is not legal advice; is it not intended to, nor can it, replace professional legal advice in any way. It is only intended to provide a short guide to basic legal terms and practices in the music industry. In your own interest, consult with a copyright attorney before entering into any contractual agreement or taking any action against copyright infringement.

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Understanding Music Copyright Downloadable Guide

Understanding Music Copyright—FREE Downloadable Guide

By David Frazee Estimated reading time: 1 minute

written by: David Frazee

Over the past couple weeks, Source has shared three of my articles on music copyright. I know the articles were long, and I know there was a lot of detail in there. I also know how important it is to make sure your rights—and the rights of your fellow songwriters—are protected.

So, to help, I put together this downloadable cheat sheet for copyright and cover songs:

CLICK the above image to open, download, or print!
CLICK the above image to open, download, or print!

Note that, should copyright laws change, this chart may no longer be correct. Additionally, if you have questions regarding the legal intricacies of your specific situation, you should contact an entertainment attorney near you.

I hope that this chart and the previous articles give you a good starting point to know your rights and the rights of your fellow songwriters!

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Understanding Music Copyright—Streaming, Music Videos, and Licensing

Understanding Music Copyright—
Streaming, Music Videos, and Licensing

By David Frazee Estimated reading time: 8 minutes

written by: David Frazee

I know how important copyright is, and I know that it can also be completely confusing and overwhelming… so I’m breaking it down and going through it, bit by bit.

This is the third article in the Copyright series. If you missed the first and/or second article, please take a moment to go back and read them before continuing this one.

Stream Digital Versions (Audio only)

You know some of your fans are all over the streaming services, such as Pandora, Spotify, and XM radio. While you don’t want to put all of your music on there (since they won’t buy it if they can stream it for free or almost free), you are interested in offering two songs off of your newest album—one is an original, and one is a cover.

But streaming is a bit more complicated than it seems, and you might have no idea what rights are involved with putting your music out there. The good news is I’ve done some digging for you.

Streaming companies gain a license from musicians to play the recordings; the particular license depends on whether the streaming service is interactive or not. An interactive service—such as Spotify—allows the user to select the exact songs they listen to. In that case, the company would have to obtain the right to “digital performances of sound recordings” from the copyright owner. On the other hand, non-interactive services—like Pandora or XM Radio—provide a pre-programmed or semi-random combination of tracks; with these services, users cannot control exactly what song plays or when. These services need a “statutory license.” SoundExchange is a service authorized by Congress to administer statutory licenses.

Additionally, streaming digital music is considered a public performance, so the services need to obtain performance rights to perform underlying musical composition.

So, to stream music online, you will likely need to transfer the underlying performance rights in the musical composition and the right to the digital performances of your sound recording to the service providing the streaming.

Unless you have given up some of your rights, you have the right to place your own music online or on the radio.

If you have not already created a digital version of a song someone else created, you will need a mechanical license to create that sound recording in digital form and to stream that song. Again, most copyright owners use the Harry Fox Agency to manage this interactive streaming license. Additionally, you will need a public performance license for the musical composition, and you will need to pay the performance fees to the correct PROs. After acquiring the proper rights from the original song owner or publisher and creating your version, you will need to give the service the right to the digital performance of your sound recording.

Creating a Music Video

In an effort to promote your new album, you’ve taken the best songs—the one with the killer hook, and the crowd pleaser—and come up with crazy-awesome concepts for a music video. You’re ready to start production, but you want to make sure you cover all the bases first.

When you create a music video of your original songs that is not being live streamed, your reproduction, distribution, and synchronization rights come into play. “Synchronization” is a special kind of right not precisely defined by law; that said, it is generally understood to be part of your reproduction rights and comes about anytime visual images are placed with your music.

To get your music video online or on TV generally requires you license the company or service a portion of your rights. To start, this will include both some sound recording (because you are not performing live) and musical composition rights (because your music and lyrics are still being played). Since companies will want to cover all their bases, the contract you enter with the company will likely be over-inclusive for what is actually required. Often this will include the right to reproduce the video, distribute the video, display your band name or CD cover, perform (or “play”) your work for public viewing, and derivative rights, to prepare derivative works. You may be thinking, “what are derivative rights, and why do they need them?” Derivative rights allow the company to adapt or change the music video—usually to fit their programming and produce the show for viewing—without infringing your copyright. It is more common with television programs than online services.

In terms of songs someone else created, you need two things to legally distribute your music video of a cover song: a mechanical license and a synchronization license. Why do you need two licenses? Your music video has an underlying audio track that exists as a separate file from the final video. That audio track technically requires a mechanical license (to create the recording and distribute it; the Harry Fox Agency handles mechanical licenses. But, in order to make a music video and align that recording of someone else’s song with any moving images, you need a special license called a “synchronization license.” This is obtained from the musical composition rights owner—likely the artist’s publisher. To find the publisher, you can look the song up on the PRO’s (BMI, ASCAP, or SESAC) website; find and contact the owner/publisher; and request to negotiate a synch license. One thing worth noting: since you can also obtain the mechanical right from the owner/publisher, you might be able to obtain a “sync license” that includes all the necessary reproduction and distribution rights you need for your video… meaning you wouldn’t need a separate mechanical license.

What does this mean, practically speaking? That hit song that everyone and their brother is covering online—those artists either obtained the proper licenses (which can cost a pretty penny, depending on the song) or they did it illegally. And doing things illegally has a range of repercussions ranging from your account being penalized to legal action. Even if everyone else seems to be doing it the wrong way, is it really worth risking your reputation, your online presence, your finances, and your career?

Song Placement: TV Shows, Movies and Commercials

Your music videos’ view counts are climbing by the minute, and your new album is trending on social media and climbing the charts (congrats!). You’ve had two emails come in—one from a company wanting to use your cover of a song in a television ad, and one wanting to use your original song in a movie.

Let’s start with your original song and the movie. The rights you might have to give up depend on whether the movie company is using a pre-recorded version of your song or is asking you to record a new version for the movie.

If they want to use a previously recorded version of your song, they will have to obtain a synchronization license and the sound recording license (called a “mast use license”). The mast use license is acquired from whomever owns the rights to the sound recording–likely you or your record label. Anytime your music is placed with moving images, a sync license is required from you and/or your publisher. The sync license should cover your performance royalties from the showing of the movie; this means the producer will submit a “cue sheet” to your PRO and the authorized broadcasts will be granted only to companies registered with your PRO. The license might also include a mechanical license, since they will likely want to release, reproduce, and distribute a soundtrack with copies of your song… and you want to get paid for those copies!

If you are recording a new version, you will likely have to give up sound recording rights, display rights, distribution rights to the work that results, the right to reproduce copies of that recording, as well as any derivative works resulting from that recording. Seems like a lot to give up, but it is pretty standard.

This is important: if you have already recorded a version of your song with a record label, be sure you do not need their permission to use the previous recording or to record a new version of the song for this new use.

Now, for licensing the cover song. Whether it’s a movie, a music video, or on television, anytime you want to place someone’s music with moving images, you need a synch license. If you already have a music video and obtained a synchronization license from the artist’s publisher, you might think you’re covered. Think again. Since this is a different use, the sync license will most likely need to be negotiated again. Additionally, performance rights to the underlying musical composition need to be obtained from the proper PRO and fees paid accordingly. Hopefully, the ad producers will take care of this for you!

So far, we’ve covered the most common Copyright issues. Let me know if there are additional topics you’d like me to address by leaving a comment below… and be sure to check back and find out more!

Disclaimer: The above article is not legal advice; is it not intended to, nor can it, replace professional legal advice in any way. It is only intended to provide a short guide to basic legal terms and practices in the music industry. In your own interest, consult with a copyright attorney before entering into any contractual agreement or taking any action against copyright infringement.

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Understanding Music Copyright—Live Performances, Recordings, and Sales

Understanding Music Copyright—
Live Performances, Recordings, and Sales

By David Frazee Estimated reading time: 7 minutes

written by: David Frazee

I know how important copyright is, and I know that it can also be completely confusing and overwhelming… so I’m breaking it down and going through it, bit by bit.

This is the second article in the Copyright series. If you missed the first article, please take a moment to go back and read it before continuing this one.

Performing Live

Let’s say you’ve got your first big gig coming up, and you need a set list to fill 90 minutes. You have a bunch of original content, but you also know that the cover song can really bring in a new crowd. There are a few songs you have in mind, but you’re worried about copyrights. How do you protect your songs, and how do you avoid trouble for doing cover songs?

If you have not given all of your public performance rights to someone else, you have the right to perform your own songs in public. However, because you are performing your songs in public, you should ensure that you have done everything you need to secure your rights to the song (such as filing with the copyright office).

If someone is asking to perform one of your songs, you may be wondering if there is a benefit to granting another artist performance rights. In short, yes. The benefits include the royalties you receive for the use of your musical composition and, of course, exposure of your music to more potential fans. If you have signed some of your musical composition rights to a publishing company, the publisher may have a right to some of your royalties.

If you want to perform a song someone else created, you will need a “public performance license.” There are two ways to obtain this license.

First, you could go to the copyright owner. Likely, the artist’s publishing company administers the licensing for the song, so you will need to find out who the publisher is and contact them to obtain performance rights. Contracts for performance rights negotiated directly with the publisher can vary in a number of ways, but it will be a non-exclusive right (meaning you do not own the song) and, unless agreed to otherwise, you will need to negotiate this right for every song and every performance.

The second, and easier, way is for the venue to go through a Performance Rights Organization (PRO). PROs work with restaurants, concert halls, nightclubs, hotels, and other venues to grant performance licenses. There are three main PROs that copyright owners use to track and issue licenses for performance rights: Broadcast Music, Inc. (BMI); the American Society of Composers Authors (ASCAP); and Society of European Stage Authors and Composers (SESAC). Nearly 100% of recorded artists are registered with one of these organizations. Venues typically (but not always) receive a non-exclusive “blanket license,” which will allow performing artists to use any of the PRO’s songs. It is likely that the venue you are performing at has already obtained the proper license from the PRO and is responsible for making sure the royalties are paid. So, look online for which PRO administers the performance rights to the song you want to cover, and ask your venue if they have the rights from that PRO.

Lastly, and this is important: obtaining the rights to perform the music does not allow you to record your live performance of that song!

Creating Recordings

Speaking of recording… Let’s say you’ve been gigging a while and have developed a loyal fan base—so loyal that they keep asking if you have music they can buy and listen to when you aren’t playing gigs. (Awesome!)

Pumped, you start pulling together your best songs for a recording session. You’ve got eight or nine solid originals, but there are two cover songs you do that get the crowd up and dancing, every single time. You’d love to record those, too. Can you?

As far as songs you’ve created, you have the right to sing, record, and distribute your songs freely (unless, of course, you have given your rights away).

To record your song, you may have to give up some rights. Often, record label contracts will contain a clause that prevents you from recording other versions of your songs without the original label’s permission. The contract might also have you give up some or all of the sound recording rights to that final product. Read all contracts carefully, with a lawyer, before signing! While you may need to give up some or all of your sound recording rights, you should still own the rights to the underlying music.

If another artist wants to record your original songs, granting them recording rights can bring you exposure for your songs as well as royalties.

To legally record your version of songs someone else created, you need to obtain reproduction rights from the copyright owner. Specifically, you need a “mechanical license,” which gives you the rights to reproduce and distribute others’ songs on your own album.

You can obtain this license from the copyright owner through negotiations. Since it’s a complicated and time consuming process to track everyone who wants to use your songs, most copyright owners use the Harry Fox Agency to manage their mechanical licenses. This is a good place to start if you want to obtain a mechanical license.

All copyright owners are given the rights to “first use” of their songs, meaning they get the opportunity to release the first public version of the song. After the song has been published, anyone can obtain a “compulsory license” by providing notice to the copyright owner and following a specific process. This allows you to still legally record the song, even if you’re having trouble obtaining a mechanical license from the creator or original artist.

Please note that a mechanical license does not give you the right to post your version of the song on YouTube. We will get to this later.

Selling Copies

You’ve gotten your songs back from the recording studio—fully mastered and ready for release. You want to order physical albums to sell, since they have good profit margins and some of your fans like buying merch at shows (they’ve asked, repeatedly, if you have any CDs). You’re also interested in selling digital versions of the album and individual songs—including those cover songs.

Manufacturing and selling songs you’ve created incorporates your reproduction (copying) and distribution (selling) rights in both sound recording and the underlying music and lyrics. If you use a record label, you may have to give away some or all of your sound recording rights. In doing so, you likely give them the right to distribute and reproduce copies.

Also, by publishing your music to the public, others can now obtain a compulsory license to reproduce your music now. The benefit is of course the money you received in exchange for these rights.

Now, let’s talk about legally manufacturing and selling songs someone else created. As discussed above, you need a mechanical license to create and sell your new songs without infringing the copyright of the songs you covered. If you are working directly with the copyright owner, make sure you obtain the right to “distribute” the cover song; otherwise, you may have the right to use the musical composition in a new recording but cannot do anything with that recording.

As discussed previously, the easier method of selling your cover songs is to obtain a “compulsory license” by providing notice to the copyright owner and following the specific process laid out in statutes.

There is something else to consider: digital versus physical copies. These are two very different mediums, and the music industry rightfully makes a distinction. You can obtain the right to sell permanent copies in either medium by obtaining a mechanical license or a compulsory license, but having the right to one medium does not mean you have the right to the other. The Harry Fox Agency has two different forms; make sure you have obtained the right license!

There’s one more thing worth noting on mechanical licenses: they are for a set number of specific sales (for example: 1,000 CDs, or 10,000 downloads) and will need to be renewed for additional copies.

Next in the Copyright series: Streaming, Creating Music Videos, and Licensing Music. Be sure to check back and find out more!

Disclaimer: The above article is not legal advice; is it not intended to, nor can it, replace professional legal advice in any way. It is only intended to provide a short guide to basic legal terms and practices in the music industry. In your own interest, consult with a copyright attorney before entering into any contractual agreement or taking any action against copyright infringement.

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Understanding Music Copyright— You Have the Right To…

Understanding Music Copyright—
You Have the Right To…

By David Frazee Estimated reading time: 6 minutes

written by: David Frazee

“I wish I had known that education is the key. That knowledge is power.”

—Mary J. Blige,
interview with Oprah Winfrey, 2006

As an independent musician, the more knowledge you have about the music industry, the better off you are. This means you need to learn about the industry, including your rights as a songwriter and performer. Not taking the time to learn about legal matters might seem easier up front, but in the long run, learning a few basic principles about your rights can be extremely empowering.

If you haven’t taken the time to learn about your rights, you’re in luck, because I’m going to cover them here. Even if you are familiar with your rights, brushing up on something this important is never a bad idea.

I know things can get complicated quickly when it comes to legal issues, so I’m going to break them down for you and explain some basics you should know.

What Can You Protect?

In the music industry, there are two main protectable elements: musical composition and sound recordings. The law intentionally protects these elements separately, and I’ll explain why in a little bit.

Musical composition refers to the underlying music (and lyrics, if applicable). They arise whenever someone wants to use your music or lyrics. This includes sampling, covering, performing your songs live, and even streaming your music online. Most importantly though, this is the part of your rights that publishing companies find valuable.

As a songwriter, you are thinking of music and lyrics all the time. So, at what point do you have musical composition rights? Say John sits down one day and finally writes sheet music for the music and lyrics he has been working on all week. A day or two later, he decides to record his song and saves it as an MP3. A week later, he decides he to play the song at his next gig. Under the law, musical composition rights arise automatically at the moment you “create” the music. But, there’s a caveat. There needs to be an element of “permanence” to the creation for the rights to arise. It does not require publication or an actual recording on a CD. In our example, John couldn’t just keep the music and lyrics in his head. He had to write them down on something intending it to be permanent. In this case, his musical composition rights would have been formed when he wrote the sheet music.

Sound recording rights only arise from the actual placing of the musical composition and lyrics on a record, CD, MP3, or other object. Sound recording rights come into play whenever someone wants to copy, distribute, or use a previously recorded version of your song. This can include demo recordings or anytime you have placed your music (or someone else’s composition that you have obtained the rights to) on any medium (CD, MP3, etc.) by any method, regardless of whether or not you release the song to the public.

What do you have to do to get this right? Like musical composition rights, sound recording rights arise automatically when you record your music. Take John in the previous example. Until he recorded his song and saved it, he did not possess any sound recording rights. However, he did not have to play the song in public for that right to arise. For sound recording rights, it is not the song but the sounds recorded on the medium of the author’s choice that are protected.

You don’t have to file any paperwork with the copyright office to get musical composition or sound recording rights. Additionally, copyright fees can quickly add up if you file every time you have a song idea. Many independent artists look for ways to minimize this cost. If you’ve done some research on filing, maybe you’ve heard of an alternative called the “poor man’s copyright.” Here is how it works: in a sealed envelope, send yourself a CD (tape, etc) of the recorded music (and the copy of the sheet music) in the mail. Once it arrives, you DO NOT open it. Some states may recognize this as proof that you own the copyright on the date stamped by the post office.

So, if you don’t have to file, why file at all? To better protect your work.

Let’s say someone uses your music without your permission, and you want to stop him or her or recover revenue from his or her use. To do so, you’ll probably have to take the matter to court. Here’s where filing with the copyright office makes a difference. First, you can only file a civil lawsuit in federal court if you have filed with the copyright office. Second, in an infringement lawsuit, you have to prove you own the rights to the songs and that the other person had access to your music to copy it. Third, it is unclear if the poor man’s copyright will stand up in the federal courts.

While I understand the desire to wait or save some money, filing with the copyright office prior to getting involved in a legal dispute makes it easier and less costly to defend your rights.

What Protections Do You Have?

The US Copyright Act provides creators—which includes songwriters—with six exclusive rights. They are:

  1. Reproductions—the right to produce copies of the copyrighted work
  2. Derivative Works—the right to prepare new works based on the original copyrighted work
  3. Distributions—the right to distribute (by selling, renting, leasing, or loaning) copies of the work to the public
  4. Public Performances—the right to perform the work publicly in person
  5. Public Displays—the right to display the work publicly
  6. Digital Performances of Sound Recordings—the right to perform publicly via digital audio transmissions (as opposed to in-person performances); i.e., playing the audio recording for an audience (in person or online)

Now, a songwriter can retain all six of these rights for himself. Or, he can give them away (to publishers, record labels, manufacturers, distributors, other artists, and so on). The transfer of rights can be any combination of permanent and temporary, entire and partial. It’s worth noting that the six rights can be handled separately, and each right is infinitely divisible. Whether or not you, as a songwriter, choose to give away your rights—entirely or partially—is up to you. Know that giving away the wrong rights (or the right rights in the wrong way) can result in lost income . . . but so can clinging to all of your rights at all times. We’ll get to that in more detail later.

Lastly, I mentioned that composition and recordings are protected separately. Here’s the reason: not all six of the above rights apply to sound recordings, but all six do apply, at one point or another, to musical composition. The rights that come into play depend on how the music is being used.

Over the next few articles, we’ll look at how your rights come into play in a few scenarios: Live Performances, Recording, Selling Copies, Streaming, Creating Music Videos, and Licensing Music. Be sure to check back and find out more!

Disclaimer: The above article is not legal advice; is it not intended to, nor can it, replace professional legal advice in any way. It is only intended to provide a short guide to basic legal terms and practices in the music industry. In your own interest, consult with a copyright attorney before entering into any contractual agreement or taking any action against copyright infringement.

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