Music Copyright 101
A Comprehensive Guide to Music Copyright (Updated 2023)
Learn everything you need to know about music copyright, including legal protection, fair compensation, copyright law, intellectual property rights, and registration requirements.
What is music copyright?
Music copyright is a form of legal protection for original musical works, such as tracks, melodies, artistic works and albums. It gives the creator of the work the exclusive right to control the use of their work for a specified period of time. This control includes the right to reproduce, distribute, perform, display, and make other works based on the original form of the work. Copyright law helps to ensure that musicians are fairly compensated for their work and that their musical creations are protected against unauthorized use.
Copyright protection is automatic in many countries as soon as a work is created, but in some cases, registration with the government or another official entity may be required to secure full protection. The length of copyright protection varies from country to country, but in most cases, it lasts for the life of the creator plus a number of years after their death.
Why does music copyright matter for musicians?
Music copyright matters for musicians for several reasons:
Financial protection: Copyright law gives musicians the exclusive right to control the use of their musical works, including the right to make money from them. This means that if someone wants to use a musician's work, they need to get permission and pay the musician for the privilege. This financial protection is critical for musicians who rely on their works to generate income.
Control over the use of their music: Copyright law gives musicians the right to control how their music is used. This includes the right to approve or reject the use of their music in recordings, live performances, commercials, films, or any other context. By having control over the use of their music, musicians can maintain the integrity of their works and protect their reputation.
Recognition and credit: Copyright law gives musicians the right to receive recognition and credit for their work. This includes the right to have their name attached to their work and to receive proper attribution for their contributions.
Legal protection: Copyright law provides musicians with legal protection against unauthorized use of their works. This includes the right to take legal action against anyone who uses their music without permission, such as by making unauthorized recordings, reproducing sheet music, or using lyrics without permission.
How can a musician infringe on the copyright of another musician?
A musician can infringe on the copyright of another musician in the following ways:
Sampling: Using a portion of someone else's recording in a new composition without permission can be considered copyright infringement. In order to sample another artist’s work, an artist will generally need a mechanical license as well as negotiate with the owner of the original composition or their representative, such as a music publisher or a record label. The license terms would typically include the amount of the original work being sampled, how it will be used, and how much the artist will pay for the right to use the sample.
Covering a song: Performing or recording someone else's song without permission, unless the song is in the public domain, can be considered copyright infringement. In order to cover a song in the United States, a compulsory license is needed. A compulsory license is a legal mechanism that allows someone to make a cover recording of a previously recorded song without obtaining permission from the copyright owner, as long as they pay a set royalty rate.
Copying sheet music: Reproducing someone else's sheet music or arrangements without permission can be considered copyright infringement. To copy sheet music, someone would typically need to obtain a print license from the copyright holder of the musical composition. A print license allows someone to reproduce the musical composition in written form, such as sheet music or lyrics, in exchange for a fee.
Using lyrics: Using someone else's lyrics without permission in a new song or recording can be considered copyright infringement. To use someone else's lyrics in a new composition, someone would typically need to obtain a synchronization license or a mechanical license, depending on how they plan to use the lyrics.
Distributing bootleg recordings: Distributing unauthorized recordings of live performances or demos can be considered copyright infringement.
Misattributed songs: Using someone else's music and falsely claiming it as your own can be considered copyright infringement.
Synchronization vs Mechanical licenses
A synchronization license is required when someone wants to use someone else's lyrics in a video or film production, such as a music video or a movie soundtrack. This license is typically obtained from the owner of the song's publishing rights and allows the licensee to synchronize the lyrics with visual images.
A mechanical license is required when someone wants to record and distribute a new composition that includes someone else's lyrics. This license is typically obtained from the owner of the song's publishing rights and allows the licensee to use the lyrics in their own recording.
What are the originality requirements for copyright protection?
Base requirements for originality in music
The level of originality required for a musical work to be eligible for copyright protection varies depending on the jurisdiction, but generally speaking, the work must exhibit a minimal degree of creativity. This means that the work must be original and not simply a copy of someone else's work.
For music, originality is usually demonstrated through combining musical elements in a unique and original way, such as melody, harmony, rhythm, and timbre. For example, a new song composed by an artist that uses a unique combination of musical elements, such as an original melody and chord progression, would likely be considered original and eligible for copyright protection.
Sometimes, a musical work may not be considered original simply because it is based on a pre-existing song or incorporates elements from other works. However, if the new work includes a significant amount of original and creative expression, it may still be eligible for copyright protection
The legal minimum of creativity required
The minimal level of creativity required for music to be eligible for copyright protection is often called the "threshold of originality." This standard is meant to separate works that are truly original and creative from those that are simply copies or lacking in originality. The exact definition of the threshold of originality can vary depending on the jurisdiction, but generally speaking, a work must exhibit a minimal level of creativity in order to be eligible for copyright protection.
For example, in some jurisdictions, a simple change to an existing melody, such as a new arrangement or a slight variation, may be sufficient to meet the threshold of originality. In other jurisdictions, a more substantial original contribution may be required, such as the creation of an entirely new melody or chord progression.
Can AI-created music be copyrighted?
The question of whether an AI model can hold a copyright for a song is a matter of legal interpretation and depends on the jurisdiction, however purely AI work without the input of a human author is unlikely to meet the thresholds or creativity and originality needed to be eligible for copyright protection. Currently, most copyright laws state that copyright protection is available for original works of authorship created by a human author. This raises questions about the level of originality and creativity required for a work to be eligible for music copyright protection, and whether an AI model can meet these requirements.
In some jurisdictions, the courts have held that works generated by a computer program, without any human intervention, are not eligible for copyright protection because they lack the necessary level of originality and creativity. In other jurisdictions, there have been efforts to extend copyright protection to works created by AI models. For example, the European Union has proposed legislation that would allow AI-generated works to be protected as copyrightable if they are original and creative. However, the exact scope of such protection and the requirements for eligibility are still subject to debate.
Who owns a music copyright?
The creator is generally the owner
In general, the owner of a musical copyright is the original creator of the musical composition. This means that if a songwriter writes a new song, they are the initial copyright owner of that song.
The moment a musical composition is created and fixed in a tangible form (such as a recording or sheet music), it is automatically protected by copyright law. This means that the copyright owner has exclusive rights to use, reproduce, distribute, and perform the musical composition, and can license those rights to others for a fee.
In the United States, the copyright owner does not need to register their copyright in order to enjoy these exclusive rights. However, registering a copyright can provide certain legal benefits, such as the ability to sue for copyright infringement and the ability to claim statutory damages.
It's important to note that if a musical composition is created by multiple people (such as a songwriting team), each person may have a share of the copyright ownership. In these cases, the copyright ownership should be divided among the creators in a fair and mutually agreed-upon manner.
It's also important for artists to be aware of their rights and obligations as copyright owners, as well as the rights of others to use their copyrighted material. This can include obtaining licenses for the use of their copyrighted material by others, monitoring and enforcing their rights against infringement, and properly crediting the original creators of any material they use in their own work.
Exceptions to the rule: musical works for hire
In the case of musical works created as "works for hire," the copyright is owned by the person or entity that commissioned the work, rather than the individual who created it.
According to U.S. copyright law, a "work for hire" is defined as a work created by an employee within the scope of their employment, or a work specially ordered or commissioned for use in certain types of works, including musical compositions. In the case of a musical work for hire, the commissioning party is considered the legal author and owner of the copyright.
Joint ownership of musical works
Joint ownership of musical works occurs when two or more individuals collaborate on creating a music, and each has contributed copyrightable elements to the work. In such cases, each creator holds an equal share of the copyright in the musical composition unless otherwise agreed upon in writing.
This means that each joint owner has the right to use and exploit the musical composition, as well as to license it to others, without the permission of the other joint owners. However, any income generated from the use or licensing of the composition must be shared equally among all joint owners.
Joint ownership can occur in many different scenarios, such as when songwriters collaborate on a song, when a songwriter and a producer work together to create a recording, or when a songwriter and a lyricist team up to create a musical composition.
It's important for joint owners of musical works to establish clear agreements in writing regarding the ownership and use of the composition, including how income will be shared and how decisions regarding licensing and other uses will be made. This can help avoid disputes and ensure that all joint owners are fairly compensated for their contributions to the work.
What rights does the music copyright owner have?
A music copyright owner generally has the following exclusive rights:
Reproduction right: The right to make copies of the musical work, including recordings, sheet music, and other reproductions.
Distribution right: The right to distribute copies of the musical work, including selling, renting, or licensing copies.
Performance right: The right to perform the musical work publicly, including in live performances and broadcasts.
Derivative work right: The right to create adaptations, arrangements, or other new works based on the original musical work.
Display right: The right to display the musical work publicly, including through live performances, recordings, or reproductions.
Digital performance right: The right to control the digital transmission of the musical work, including through online streaming services.
These rights give the copyright owner significant control over the use of their musical works and the ability to generate income from those works. By exercising these rights, the copyright owner can ensure that their works are used in ways that respect their rights and the value of their creations.
It's important to note that these rights are subject to certain limitations and exceptions, such as the doctrine of fair use, which allows for limited use of copyrighted material for purposes such as criticism, commentary, news reporting, teaching, scholarship, or research. However, these limitations and exceptions are often complex and subject to interpretation, so it's recommended that musicians consult with a legal expert to help navigate the nuances of copyright law.
An explanation of reproduction, distribution, performance, and derivative rights
Reproduction right: The reproduction right gives the music copyright owner the exclusive right to make copies of the musical work, including recordings, sheet music, and other reproductions. This right allows the copyright owner to control the distribution of copies of their work and to generate income from those copies. It also helps to prevent unauthorized use or distribution of the work.
Distribution right: The distribution right gives the music copyright owner the exclusive right to distribute copies of the musical work, including selling, renting, or licensing copies. This right allows the copyright owner to control the distribution of their work and to generate income from those distributions. It also helps to prevent unauthorized distribution of the work.
Performance right: The performance right gives the copyright owner the exclusive right to perform the musical work publicly, including in live performances and broadcasts. This right allows the copyright owner to control the use of their work in public performances and to generate income from those performances. It also helps to prevent unauthorized use of the work in public performances.
Derivative work right: The derivative work right gives the music copyright owner the exclusive right to create adaptations, arrangements, or other new works based on the original musical work. This right allows the copyright owner to control the creation of new works based on their original work and to generate income from those new works. It also helps to prevent unauthorized use or distribution of the original work in new creations.
So, how does music licensing work?
The role of licensing in music copyright protection
Licensing plays a critical role in copyright protection by providing a legal mechanism for copyright owners to control how their works are used and to earn income from their creations. When a copyright owner grants a license to someone else, they are giving that person permission to use their copyrighted material in a specified way, for a set period of time, and in exchange for compensation.
For example, a music publisher may license the rights to a song to a record label, allowing the label to distribute the song on a physical or digital medium in exchange for a royalty payment. Or, a filmmaker may license the rights to use a song in a movie, allowing them to synchronize the song with visual images and pay the copyright owner a fee for the use of the song.
Licensing helps to protect copyrighted works by providing a legal framework for the use and distribution of those works, and by ensuring that copyright owners are fairly compensated for their creations. Without licensing, it would be difficult for copyright owners to control how their works are used and to earn income from their creations, which could lead to a decline in the creation and distribution of new works.
In addition, licensing helps to promote the sharing and dissemination of creative works by allowing others to use and build upon existing creations, while also protecting the rights of the original creators. This balance between protection and promotion is a critical aspect of copyright law and helps to foster a vibrant and dynamic creative economy.
Mechanical and synchronization licenses
Mechanical licensing and sync licensing are two specific types of licenses that are relevant to music copyright.
Mechanical licensing: A mechanical license is a license that gives a person or entity the right to reproduce and distribute a musical work through various mediums, such as on a physical recording (e.g., CDs or vinyl), as a digital download, or as a streaming service. Mechanical licenses are usually obtained through a collective licensing organization, such as the Harry Fox Agency in the United States.
Sync licensing: A sync license, also known as a synchronization license, is a license that gives a person or entity the right to use a musical work in connection with visual media, such as in a film, television show, commercial, or video game. Sync licensing is usually obtained directly from the copyright owner or their representative, and it gives the user the right to use the music in a specific way in a specific medium.
Both mechanical and sync licenses are important for musicians to understand as they can generate significant revenue for their works if exploited properly.
The importance of licensing in generating revenue for musicians
Licensing is an important source of revenue for musicians because it allows them to earn income from the use and distribution of their music. When musicians license their music, they can receive payments for the use of their songs in various contexts, including through sync, mechanical, performance, and print licensing.
What are royalties and how are they paid?
Royalties are payments made to the owner of a copyrighted work in exchange for the right to use that work in some way. In the context of the music industry, royalties are typically paid to songwriters, publishers, and recording artists for the use of their music.
Royalties are typically paid out by the entity that is using the music, such as a record label, publisher, advertising agency, or streaming service. The amount of the royalty payment can vary depending on various factors, such as the type of use, the popularity of the music, and the terms of the agreement between the parties involved.
Why should artists register with a PRO?
Artists should consider registering with a Performing Rights Organization (PRO) for several reasons:
Royalties: A PRO is responsible for collecting performance royalties on behalf of its members. When an artist's music is played in public, such as on the radio or in a live venue, the PRO collects the royalties due to the artist and pays them out on a regular basis. By registering with a PRO, artists can ensure that they are being compensated for the use of their music.
Monitoring: PROs monitor music usage in various public settings to ensure that royalties are being collected and distributed fairly. This includes tracking radio play, live performances, and online streaming, among other uses. By registering with a PRO, artists can be sure that their music is being tracked and that they are receiving the appropriate royalties.
Licensing: PROs also offer licensing services to businesses and organizations that want to use music in public settings. By licensing their music through a PRO, artists can earn additional revenue from the use of their music in various contexts, while also ensuring that their music is being used legally and appropriately.
Legal Protection: PROs provide legal protection for their members by advocating for their rights in court and negotiating on their behalf with music users. By registering with a PRO, artists can benefit from the legal resources and expertise that the organization provides.
What is copyright infringement?
Copyright infringement is the unauthorized use of a protected musical work in a way that violates one or more of the exclusive rights of the copyright owner. This can include reproducing, distributing, performing, adapting, or displaying the musical work without the permission of the copyright owner or in a manner that exceeds the scope of any permission that was granted.
Copyright infringement is a serious matter and can result in significant legal and financial consequences, including damages and fines. Musicians and other copyright owners can take legal action against infringers to protect their rights and to enforce their exclusive rights under copyright law.
What are the consequences of copyright infringement?
The potential consequences of musical copyright infringement can be significant and can include both legal and financial penalties. Some of the most common consequences include:
Monetary damages: A copyright owner may be entitled to monetary damages for the unauthorized use of their musical work, which can include actual damages, such as lost profits, as well as statutory damages, which are damages set by law and may be higher than actual damages.
Injunctions: A court may issue an injunction, which is a court order that requires the infringing party to stop the infringing activity.
Impounding of infringing copies: A court may order the impounding or destruction of infringing copies of a musical work.
Criminal penalties: In some cases, copyright infringement can be a criminal offense and may result in fines and imprisonment.
Attorney's fees and court costs: A successful copyright owner may be entitled to recover their attorney's fees and court costs from the infringing party.
How do I protect my music against copyright infringement?
There are several steps that a musician can take to protect against copyright infringement:
Register your works with the copyright office: Registering your musical works with the copyright office is the first step in protecting your rights. This creates a public record of your ownership of the works and can make it easier to enforce your rights if infringement occurs.
Use a watermark or identifier: Adding a unique identifier, such as an audio watermark, to your musical recordings can help to deter infringement by making it easier to identify and track unauthorized uses of your works.
Monitor for infringement: Regularly monitoring for infringement of your works, including online and in the physical world, can help you to detect and address infringement as soon as possible.
Obtain proper licenses: Obtaining the necessary licenses for your works, such as mechanical and sync licenses, can help to ensure that your works are being used legally and that you are being compensated for their use.
Send cease-and-desist letters: If you believe that your works are being used without your permission, sending a cease-and-desist letter to the infringing party can be an effective way to stop the infringing activity and to negotiate a resolution.
Consider insurance: Copyright infringement insurance can help to cover the costs of defending against infringement, including attorney's fees and court costs.
Seek legal counsel: If you believe that your rights have been infringed, seeking legal counsel can be an effective way to enforce your rights and to protect your interests. A legal expert can help you to navigate the legal process and to ensure that your rights are protected.
It's important for musicians to be proactive in protecting their rights and to take steps to enforce their rights if infringement occurs. By taking these steps, musicians can help to ensure that their works are being used legally and that they are being fairly compensated for their use.
International Copyright Protection for Musicians
What is The Berne Convention?
The Berne Convention for the Protection of Literary and Artistic Works, often referred to simply as the Berne Convention, is an international treaty that establishes minimum standards for copyright protection for literary and artistic works. The treaty was first signed in 1886 in Berne, Switzerland, and has since been revised several times to update and expand its provisions.
The Berne Convention requires member countries to provide automatic and minimum copyright protection for works created by nationals of other member countries. This means that if an artist or writer creates a work in one member country, they are automatically protected by copyright in all other member countries, without the need for registration or other formalities.
The treaty also establishes certain minimum rights for copyright owners, including the exclusive right to authorize the reproduction, distribution, and public performance of their works. The duration of copyright protection is also established by the treaty, with a minimum term of protection of the life of the author plus 50 years.
As of 2021, there are 179 member countries of the Berne Convention, including the United States, Canada, the United Kingdom, France, Germany, Japan, and many others. The treaty is considered to be one of the most important international agreements for the protection of intellectual property, and has had a significant impact on the development and enforcement of copyright law around the world.
Wrapping Up Copyright Protection for Musicians
In conclusion, music copyright is a critical aspect of the music industry that gives musicians the exclusive right to control the use of their creative works. This protection ensures that musicians can receive fair compensation for their work and have control over how their music is used and distributed. Understanding music copyright is essential for all musicians, as it provides financial protection, control over the use of their music, recognition and credit, and legal protection.