MUSIC
COPYRIGHT BASICS

 

What is Copyright?
Its how we protect the expression of original ideas in the form of intellectual property such as music, painting, photography, etc. It is a right created by the U.S. Constitution (Article I, Section 8) and controlled by a U.S. law called the Copyright Act, Title 17 of the United States Code. Generally speaking, copyright law grants owners a number of exclusive rights, including the right to control the reproduction, distribution, adaptation, public display and public performance of their works. It extends only to original expressions and does not protect ideas, systems, procedures, concepts and factual information or affect protection of pre-existing material included in the copyrighted work.

 

When is a copyrighted work considered published?
For some copyright concepts, it is important to determine when a work was first published. A work is considered published when it is distributed to the public by rental, lease, lending, sale or some other transfer of ownership. However, a public performance, say of a musical composition, is not - by itself - a publication. Unpublished works are protected under copyright law.

 

What is a "work-for-hire"?
A "work-for-hire" is a work that is either:

- prepared by an employee as part of his or her job; or

- a work which has been specially ordered or commissioned and falls into a limited list of types of works (such as motion pictures, compilations or atlases) if the parties have agreed in writing to treat the work as a work-for-hire.

Works-for-hire are typically owned by the employer or company that ordered or commissioned the work. The employer or commissioning party is considered the "author."

 

How long does copyright last?
The length of copyright protection varies, depending on whether the owner is an individual, joint author or a corporation. You also need to take into account the year the work was created. For works created on or after January 1, 1978, copyright protection lasts for the life of the author plus 70 years after the author's death.

However:

- If the work was created by more than one author (a "joint" work), copyright protection lasts for the life of the authors plus 70 years after the death of the last-remaining author.

- If a work is made anonymously, under a pseudonym or if the work is a "work for hire" (previously defined), copyright protection lasts for 95 years from the year of the first publication, or 120 years from the year of creation, whichever expires first.

For works created prior to but not published until after January 1, 1978, the same rules apply as listed above. However, the copyright term will last to at least until December 31, 2002, and, for works published on or before December 31, 2002, the copyright will not expire before December 31, 2047.

For copyrighted works that were published prior to January 1, 1978, the rules become more complicated. Generally speaking, the copyright in a work that was created and published prior to January 1, 1978, will last for 28 years from the date it was originally secured, and is entitled to a renewal term of 67 years. If you have questions concerning the whether a particular work is still entitled to copyright protection, you can check the status of a copyrighted work through the Copyright Office. For more information, see http://lcweb.loc.gov/copyright/circs/circ23.

 

What is a musical composition?
A musical composition or song includes the words, if any, and music and is owned by the songwriter or, by assignment, a music publisher. If a copyright notice is displayed on the compact disc, audio cassette or sheet music, the copyright owner in the musical composition is typically identified after the ©. To make and distribute a recording of a copyrighted musical composition, you need a mechanical license (see below). To register a musical composition with the Copyright Office, complete a Form PA. You also can register a musical composition and sound recording at the same time (see below for more details). For more information on how to register a musical composition, see http://lcweb.loc.gov/copyright/circs/circ56a or call the Copyright Office at (202) 707-9100 for a Form PA and Circular 50, Copyright Registration for Musical Compositions.

 

What is a sound recording?
A sound recording is an actual recorded rendition of a song or musical composition. It results from the fixation (i.e., recording) of a series of musical, spoken or other sounds. There can be different sound recordings of the same musical composition. The sound recording copyright is typically owned by the record label that represents the artist. If a copyright notice is displayed, the sound recording owner is identified after the (P). For instance, if Bernie Taupin and Elton John write a song called "Candle in the Wind", they would be the composers for that song. If Columbia Records then records Celine Dion singing "Candle in the Wind", her rendition of that song would be considered a sound recording and would be owned by Columbia Records.

To register a sound recording with the Copyright Office, complete a Form SR. A musical composition and sound recording can be registered with the Copyright Office in a single application (Form SR) if the ownership of the copyrights in both the musical composition and the sound recording is exactly the same. For more information on how to register a sound recording, see http://lcweb.loc.gov/copyright/circs/circ56a or call the Copyright Office at (202) 707-9100 for a Form SR and Circular 56, Copyright for Sound Recordings.

 

What is a phonorecord?
This term is not synonymous with the term "sound recording." "Phonorecords" refers to the media on which sound can be recorded, such as audio cassette tapes, CDs, mini-discs, etc. However, the term, according to the Copyright Act, does not include audio-visual products, such as videotape. "Sound recording" refers to the content contained on phonorecords. The term "phonorecord" is sometimes used generally to refer to all kinds of recordable media.

 

What does a Music Publisher Do?
Music publishers represent musical works, composers and lyricists. They market, license and promote songs for songwriters. Typically, songwriters "assign" (transfer ownership) of their copyrights to publishers in exchange for royalties.

 

Where do record labels fit in?
A record label or record company makes, distributes and markets sound recordings of their artists.

 

What are performing rights and digital performance rights?
A "public performance" is one that occurs in a place open to the public or any place where people, other than a small circle of family and its social acquaintances, gather. A "public performance" also occurs when a song is played for the public reception via the radio, TV or cable broadcast; via telephone or wire transmission; or over the Internet. To perform a musical composition publicly, the user must obtain a license from the copyright owner or his representatives. There are some exceptions for certain governmental, educational or religious uses.

Sound recording owners have limited public performance rights as well. Since February 1, 1996, sound recording owners have the exclusive right to control interactive digital performances of their sound recordings. Under copyright law, an "interactive service" is defined as "one that enables a member of the public to receive a transmission of a program specially created for the recipient, or on a request, a transmission of a particular sound recording, whether or not as part of a program, which is selected by or on behalf of the recipient." Where a service is interactive in nature, the sound recording copyright owner's exclusive right applies regardless of whether a fee is charged to receive the transmission.

In addition, the Act gives sound recording copyright owners certain rights relating to various types of noninteractive transmission (including both subscription and nonsubscription transmissions). For more information on these rights, please consult http://www.riaa.com/weblic/weblic.htm.

 

What are mechanical rights or licenses?
Written permission from the music publisher to record and distribute a musical composition on a tape, CD, DVD or other recordable media. Mechanical rights or a mechanical license must be obtained in order to lawfully make and distribute records, CDs and tapes containing sound recordings of underlying compositions. The rate charged for mechanical rights is statutory, meaning it is set by the government. Recording rights for most music publishers can be obtained from the Harry Fox Agency (http://www.nmpa.org/hfa/). It does not include the right to copy or otherwise reprint lyrics or sheet music. Those rights must be obtained directly from the copyright owner.

Once a musical composition has been distributed to the public in the form of a phonorecord, a compulsory license is available for anyone else who wishes to make and distribute phonorecords containing their recorded versions of the musical work in question (this means the copyright owner by law must grant permission if the individual pays the statutory licensing fee). However, the phonorecords must be for distribution to the public for private use. Simply put, once someone legitimately distributes a CD containing a particular rendition of a song, anyone else can record its own version of that musical work for distribution to the public as well. To obtain a compulsory license, a person must notify the copyright owner in writing either before or within thirty days after making the sound recording. The notice must be served before any phonorecords are distributed. Royalties will be due to the copyright owner in the musical work for every phonorecord made and distributed. For more detailed information on obtaining compulsory licenses and related royalties, see http://lcweb.loc.gov/copyright/title37/ (section 255 -- Adjustment of royalty payable under compulsory license for making and distributing phonorecords).

 

What are synchronization or "synch" rights?
A synch right is an authorization to use a recording of a musical composition in a motion picture, TV program, commercial, music video or other audio-visual work.

 

What constitutes music piracy?
The unauthorized recording, reproduction, adaptation, distribution and/or performance of musical compositions and sound recordings. When discussing the different types of illegal phonorecords, the following terms are often used: - "Counterfeit" phonorecords are duplicates of legitimate product where both the content and cover art of the phonorecords are copied. Counterfeits may look remarkably like the legitimate product. - "Pirate" phonorecords contain unauthorized copies of sound recordings. However, the packaging is original and does not match the packaging of any legitimate product. Common examples are mix-tapes and compilation CDs (i.e., The Best Of series). - A "bootleg" phonorecord contains unauthorized recordings of an artistÍs live concert.

 

What laws apply to musical compositions and sound recordings?
There are several laws that apply in this area: