Understanding Music Copyright: Originality and Ownership of MusicBy
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:
- what can you copyright, and
- 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:
- creativity, and
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:
- 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.
- 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.
- 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.