A little while ago, I wrote about Baauer’s legal troubles related to copyright infringement in the “Harlem Shake.” Someone asked if I could write a bit about copyright as it applies to music in general and my answer, as it tends to be when it comes to most copyright questions, was “Can I?!?”
Of course I can. This is what I live for.
Copyright is, quite literally, the right to make and distribute copies of ones work. The U.S. passed our first Copyright Act in 1790, but music wasn’t added to the list of protected works until 1831. At that time, copyright protection was dependent on registering your work with the copyright office, and the term of protection was 28 years with a renewal term of 14 years for a maximum of 42 years worth of copyright protection. Sound recordings weren’t given copyright protection until 1972.
The most significant Copyright Act that relates to music was the 1976 Copyright Act. This act was 11 years in the making and heavily influenced by lobbying and certain special interest groups. It made several significant changes to existing copyright law. The biggest change in the 1976 act was that it was not necessary to register a work to claim copyright in it. Copyright was automatically granted once the work was in a fixed medium. It did away with strict categories for what could be copyrighted and instead said that “Any original work of authorship” could be protected by copyright. The 1976 Act also made copyright divisible, so copyright could be shared between any number of people.
The 1976 Act also stated that authors not only had the right of first copyright and the ability to grant it to others, but a right of termination after which they would regain full ownership of their works. Fair Use was also formally added to copyright law and given specific parameters, whereas previously it had been considered common law. There were several new categories of compulsory licenses added*. And finally, it increased duration of copyright to life of the author plus 50 years.
Of course, the 1976 act has been heavily amended in the intervening years. One of the most significant amendments passed in 1998, called the Sonny Bono Copyright Term Extension Act, extended copyright protection from life of the author plus 50 years to life of the author plus 70 years. This means that virtually no works created after 1922 have entered the public domain in the U.S.
For those creating music, it’s important to know what exclusive rights you have as an author. These are the rights that the copyright owner holds exclusively, unless they specifically grant it to someone else. They are:
- The Reproduction Right: The right to reproduce and authorize others to reproduce the copyrighted work. In music, this right is granted with either a print license (for the production of sheet music) or a mechanical license (the right to create and sell recordings of the work). There is a compulsory mechanical license for works which have been released to the public, stating that once a recording has been released, anyone can make their own version of that recording and distribute it while accounting to the original copyright holder. The stipulations on how this must be done, though, are incredibly strict to the point of being practically impossible (monthly accounting of royalties, yearly audits, only very minor and specific changes to the work are allowed, etc.), so you don’t see it done very often.
- The Derivative Right: This means you have the exclusive right to prepare derivative works based on your copyrighted work, and the exclusive right to grant that permission to others. The most common way this applies to music is when one records a composition, since this is considered translation to a new medium and therefore derivative of the composition itself.
- The Distribution Right: This is the right most frequently cited in piracy cases, the right to distribute and authorize others to distribute your work to the public. Generally, this is fought by record companies because record companies tend to hold exclusive copyrights in the sound recordings they produce. The composer or song writer also has a share of this right, but they tend to sign over the right to record companies when the record is made.
- The Public Performance Right: This right deals with the right to exclusively perform your work publicly and authorize others to perform your work publicly. It is also the right most subject to compulsory licenses, which means you basically control the public performance right until you release the work to the public. After that point, a Performance Rights Organization (or PRO) will step in and grant blanket licenses to businesses that play music in their venues, or radio stations that play music. The PROs account to their members from the rates they receive, so if your work has hit the airwaves or is gaining in popularity it’s worthwhile to register with a PRO. The ones in the U.S. are ASCAP, BMI, and SESAC. Public Performance rights apply almost exclusively to the composition rather than the sound recordings, except in the case of Internet radio, in which case there is also a public performance right for sound recordings.
- The Public Display Right: This right tends to apply more towards visual or audio visual works and does not have much bearing on music at all.
The most important thing to remember is that music copyrights almost always deal with two pieces of intellectual property: the composition and the recording. When you use a piece of recorded music you have to get permission from owners of both copyrights.
Besides the basics I’ve outlined here there are, of course, endless sub regulations and procedures that deal with how these rights are applied. I have an extraordinarily thick book dealing specifically with licensing and all the different permutations of it that are dealt with in the music world. You know those greeting cards that play songs? I’m pretty sure I’ve read at least 20 pages of how those are dealt with from a legal standpoint. If you’re interested in learning more about copyright as it applies to music, I’d recommend Moser on Music Copyright to start with. It’s short and pretty readable for a textbook, and provides a lot of examples and legal cases that help illustrate the specifics of copyright law as they’ve been applied in the U.S.
Of course, if you’d just like to ask me questions, you’re welcome to do that too.
*Compulsory licenses are licenses that others can take out to use your work after you’ve released it to the public without asking your specific permission. Most of the licenses are public performance related, i.e, cable television, public broadcasting, jukeboxes, etc. This is mostly done for convenience’s sake. Works not released to the public are not subject to compulsory licenses.