How To Copyright Music

I. The Importance of Copyright Law

Strangely enough, it may be the United Nations that best sums up the purpose of copyright laws:
To encourage a dynamic creative culture, while returning value to creators so that they can lead a dignified economic existence, and to provide widespread, affordable access to content for the public… (Read More)

II. The Historical Significance of the Copyright

To understand the importance of today’s music copyright laws, and what they can mean to a modern songwriter’s financial wellbeing, it is necessary to revisit the origins of copyright laws in general. As may be expected, the original copyrights laws applied to the written word, and these governances date back to the first days of the printing press in the 15th Century. After years of censorship of printing presses by the British Government and religious groups, the Parliament of Great Britain passed the Statute of Anne—an act that is now commonly known as the first copyright law. The statute was enacted to promote the dispersion of written works and, therefore, knowledge, by granting publishers a specified period of legal protection to the right of a work, and also the ability for a work to eventually enter the public domain. Censorship, which had previously run rampant in publishing houses, was not necessarily ended, but at least curtailed from its previous highs…

Today, many cases come before courts across the world, which constantly uphold and redefine the protection offered by the DMCA and other nations’ similar laws. Notable U.S. court cases tried under the DMCA include an incident when Viacom sued YouTube (and its parent company Google) for infringement for posting 160,000 videos owned by Viacom. One of the first cases to set a precedent in the way music can be presented on the Internet arose when A&M Records (along with several other record labels) sued Napster in 2000 for the infringement of copyright, claiming that the DMCA did not permit the file sharing company to present free digital copies of copyrighted songs to internet users. Napster lost the case but was, upon appeal, able to continue operating as long as they could block content that fell under the terms of copyright infringement. Though Napster was unable to do this (and eventually shut down their original format), the case was one of the original precedents that continues to be modified today as the constantly evolving internet allows users more and more ways to present an obtain digital music… (Read More)

III. How Copyright Protects Music

While the historical context of copyright law shows the significance and importance of these laws to both protect an artist’s work as well as promoting the motivation to produce new works, the reasons for this importance lie in what copyright actually protects. And understanding the protection copyrights grant is crucial to not only recognizing the importance of these laws, but also in how to protect created works.

There are two distinct types of copyright that must be understood to recognize how musical compositions are protected.

Common Law Copyright

As soon as a song is written, it is protected under individual state laws as common law copyright. No notice or registration is required for a work to receive common law copyright protection; it is automatic upon creation. Common law copyright completely protects the author of a work against unauthorized commercialization of the work. An important stipulation of common law copyright is that the composition cannot be fixed in any tangible media. Once a song is recorded or otherwise fixed in any tangible form, it requires the protection of statutory copyright.

Statutory Copyright

Applying to both published and unpublished works, as soon as a song is fixed in a recorded or otherwise visible form, they are protected under federal copyright law, namely the Copyright Act of 1976. This is how the act defines publication:

“Publication” is the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending. The offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance, or public display constitutes publication. A public performance or display of a work does not of itself constitute publication… (Read More)

IV. What Is, and Isn’t, Protected by Copyright Law

A look at what is protected under the Copyright Act of 1976 may best be originated by exploring what is not protected. An idea cannot be protected—only the expression of those ideas. As an example, both Waylon Jennings and David Allan Coe can both write songs about Hank Williams (as they did with “Are You Sure Hank Done It This Way” and “The Ride,” respectively), but neither could claim ownership to the other’s actual song, which is the expression of the idea to write a song about Williams. Additionally, song titles cannot be copyrighted, nor can chord structures. With a finite amount of chords, the arrangement of the order of those chords into a song is also finite; therefore the actual chord structures do not lend themselves to protection.

Additionally, as stated in the aforementioned language of the Copyright Act of 1976, musical compositions that accompany a motion picture are not protected as a phonorecord or sound recording. In the case of movies, the songs used therein are copyrighted with the movie as part of an “audiovisual work.” An exception to this is when a soundtrack album is released before the movie is released, in which case the album would be protected under a separate phonorecord copyright…

Derivative Works

A work is considered a derivative work if it takes an existing work and creates a new sound recording; the new sound recording will be protected under copyright law. If the existing recording is not public domain, the author of the new derivative work must receive authorization from the owner of the existing work.

Anytime an artist records a version of the traditional “Jingle Bells,” the resulting sound recording and phonorecord is protected for the artist as a derivative work. Another common example of derivative work is a remix that significantly alters the original song (i.e. a “dance club” remix).

Still, sampling is a common practice that occurs often in current new music, and copyright protection of the sampled music is often also evaluated on a case-by-case basis. For example, the Beastie Boys won a case filed against them for a sample of a flutist they used in their song “Pass the Mic” because the sample was deemed “not substantially similar” to the original. However, when Vanilla Ice sampled the bassline of the Queen and David Bowie classic “Under Pressure” for his hit “Ice Ice Baby,” he was forced to grant songwriting credit (and therefore royalties) to writers Freddie Mercury and David Bowie.

Royalty payments to the original copyright owners of sampled music are also paid on a case-by-case basis, depending on the artists involved. Sometimes a flat rate will be issued, and other times a percentage of royalties will be charged. In a famous example, after the Verve sampled an orchestral cover version of the Rolling Stones’ “The Last Time” for their hit “Bittersweet Symphony,” the band was forced to relinquish 100 percent of their royalties for the song… (Read More)

V. The Process of Copyrighting a Work

The procedure for registering for a musical composition with the U.S. Copyright Office is a relatively simple and inexpensive process. Whether the song or album is published or unpublished, the best course of action for the owner of the copyright is to register the work with the copyright office as soon as it is fixed into “tangible media,” thereby qualifying for federal copyright protection as a sound recording. Registration of copyright places ownership of the copyright by the author on public record, so legal action can then proceed against any perceived infringement cases… (Read More)

VI. Duration of Music Copyright

After registration of a work in the U.S. Copyright Office, the owner has full protection of their copyright under federal law for the duration that the copyright is protected. In the United States and most other countries that have copyright laws, the laws protect the work for a certain amount of time, at which point the work enters the public domain.

Duration of copyrights for sound recordings and phonorecords in the United States vary depending on when the copyright was first acquired, in accordance to how copyright law have changed over the years. But for any work created after December 31, 1977 by a natural person (i.e. not a corporate author), the duration of the copyright will extend throughout the author’s lifetime plus 70 years. If more than one author owns the copyright to a work, the duration will be measured at 70 years from the death of the last surviving author. If the work is a “work for hire,” or an anonymous author whose death date will not be documented, the copyright extends 95 years from publication or 120 from creation, whichever comes first… (Read More)

VII. A Look at Public Domain

As stated in the previous chapter, after the copyright expires on a work, that work is automatically placed into the public domain. Merriam-Webster’s dictionary describes public domain as “the realm embracing property rights that belong to the community at large, are unprotected by copyright or patent, and are subject to appropriation by anyone.” Therefore, any work in the public domain is free to be used in anyway an artist sees fit, with no royalties or other payments required.

But what is the advantage of this? The purpose of public domain is stated in the Copyright Act of 1976, presented that after… (Read More)

VIII. The Significance of Performance Rights Organizations

An important distinction should be recognized in the fact that registering a song for copyright purposes is not the same as registering a song with a performance rights organization (PRO). While securing a copyright for a work automatically entitles the author(s) to the right to collect financial gain from public broadcast or other use of the work, many artists use PROs as an intermediary to actually collect and deliver those monies.

There are three PROs currently operating in the United States: the American Society of Composers, Authors and Publishers (ASCAP), Broadcast Music Inc. (BMI) and the Society of European Stage Authors & Composers (SESAC). All three perform various duties for their members, but the one common duty is that all three keep track of public broadcast of member’s songs, collects licensing and royalty fees, and then pays those to the owner of the copyright… (Read More)

IX. What it Means to Your Music

As is hopefully clear from the contents of this writing, obtaining the copyright for original works is one of the most important things an artist can do. Copyright law not only protects the creator of the work (along with granting them the exclusive right to profit from his or her creation), but also furthers artistic culture of society in general both now and in the future. As discussed, the process of obtaining copyright is simple and relatively inexpensive, and is the one way to fully guarantee protection of a work against future infringement. A small amount of time spent securing a copyright as soon as you create or publish a work can be greatly beneficial to an artist’s future career. (Read More)