When we start to get into laws and legality of things, that’s when it starts to get really tricky and complicated. It’s no different in the music business, so it’s important to at least understand the basics.
If you’re a newer musician, you need to know copyright laws for:
- Protecting your music against infringement and plagiarism
- Receiving royalties you are legally entitled to when your music is used
- Not infringing or breaking the law in regards to other people’s music or intellectual property
Even if you’re not a new musician, you should be familiar with these music copyright fundamentals to save yourself from any potential headaches in the future.
Disclaimer: I’m not an attorney so nothing said in this blog should be considered legal advice. I know I get readers from all over the world, but I’m only focusing on the United States because that’s where I’m from.
First Off, What is a Copyright?
Copyright is a form of protection for original works of authorship fixed in a tangible medium of expression. Copyright covers both published and unpublished works.
Essentially, it’s a form of government protection that allows you to claim ownership of your own original creations so people can’t use it without your permission or without a license where you would receive some monetary compensation.
Usually copyright in music involves the musical composition, and the sound recording or master. I like to think of a musical composition as a blueprint, and the sound recording is the actual song you can hear.
Here are some basic things you should know in regards to copyrights in the music industry:
1. Your music (composition and sound recording) is copyright protected at the moment of creation.
Technically, you don’t need to register your music and pay money to copyright your music. It’s voluntary, but you should still consider it.
Your work, whether it’s the composition or sound recording, becomes automatically copyrighted the moment it is “created and fixed in a tangible form that it is perceptible either directly or with the aid of a machine or device.”
In other words, a song you wrote is protected by copyright once it’s in a form that someone can see, hear or touch like written on paper or recorded to audio file on a computer. You need to be able to prove that you are in fact the author of the original work, especially in a case where you suspect someone of infringing on your intellectual property.
Benefits of Registering with U.S. Copyright Office
The real benefit of registering your music with the U.S. Copyright Office is to officially document in public record that you are the owner in situations where your copyright was violated.
In case of a lawsuit where you suspect someone is using a song without permission or even claiming it as their own (plagiarism), you have to register it first before you can engage in any legal disputes over your song or recording.
Registration also means you will have “prima facie” evidence that you were the first to create the work. “Prima facie” is a legal term that means the other side bears the burden of proof to prove that the work is not yours. Also, you are eligible for statutory damages, attorneys’ fees, and costs if you registered before the infringement occurred or within three months after publication of a work.
Even though there’s no time limit or deadline to register your music with the copyright office, it makes it more difficult to win a lawsuit if a copyright infringement of your work happened before you’ve registered. So ideally, you want to register your music as soon as it’s released so you are fully protected from any possible infringement that may occur after the song is out in the public.
This may be a bit extreme for some, but even video documenting the creative and recording process of your songs. This is something you might want to do anyways for content on social media and to promote the release, but it may add an extra layer of proof on top of registering your songs with the copyright office. With all the music copyright litigation that happens in the industry, you want to protect your property.
Copyright infringement happens all the time in the music industry from artists from all levels, even those on major labels. You’re gambling by choosing not to register your music.
Another benefit of registering your music for copyright is for sync licensing. If you get an opportunity to have your song in a movie, TV show, commercial or video game, you’ll need to show proof that you’ve officially registered your work in order to secure the sync deal.
For more about the benefits of registration, you can check out this document from the U.S. Copyright Office website.
How to Register Your Work
As of this writing, you can register with paper ($85) or electronically / online ($35, recommended) by starting here:
Download Forms: https://www.copyright.gov/registration/performing-arts/index.html
Submitting Online: https://eco.copyright.gov/eService_enu/start.swe?SWECmd=Start&SWEHo=eco.copyright.gov
You’ll most likely be using the following forms:
- The PA form (Work of the Performing Arts) is the form used to register a composition (words and music).
- The SR form (Sound Recording) is the form used to register the master or audio recording only. If you wanted to register a song in which you own both the composition and sound recording, you would use the SR form as well.
If you’re copyrighting all of your own music, you can register multiple songs in one group submission to save money. There are certain rules and requirements, like all the songs need to be publicly released first in a group submission, so be sure to check that out.
To fully protect your music, you should be registering to copyright both the composition and sound recording.
Other Important Notes About Copyrights
Copyrights apply for lyrics and melodies. However, you can’t copyright:
- Chord progressions
- Song titles, names or short phrases
- Overall idea or concept of a song
In the U.S., the copyright for your work lasts until 70 years after the death of the last copyright owner. This can vary by country.
If you write or record music, you are the copyright owner of that intellectual property. You decide who can use your songs and how. Of course, if there are multiple people involved in the creation of a song, then the copyright is split and divided percentage-wise. However, the involved parties can mutually agree upon how it should be shared.
This is important when it comes to understanding music royalties.
2) You are legally entitled to royalties when your music is used or exploited in various ways.
If you’re not sure about what royalties you’re entitled to if you own the copyrights to a song, you can read my blog on music royalties.
Through the process of licensing, you can also allow others to use your music in exchange for a payment known as a royalty. Depending on what copyright you have of a song, whether it’s the composition, sound recording or both, then you are entitled to certain money.
As the copyright owner, you have the ability to transfer and assign rights to use your work to others to reproduce, distribute, perform publicly, display and create derivatives of your work. In other words, you can let others gain temporary ownership and control of your copyrighted work.
This typically happens when you sign to a publisher or record label to allow them to exploit your music for a mutually benefit. To do this, transferring rights for a period of time makes it easier for the label or publisher to do its job.
As discussed above, there’s a distinction between the copyright of a composition and a sound recording, in regards to who has ownership of what aspect of a song.
Musical Composition Copyright
Technically, royalties for a musical composition are split 50% to the songwriter, and 50% to the publisher. However, if there’s no other music publisher involved because you self-publish, then you own both the songwriter and publishing rights and entitled to 100% of the royalties.
To actually collect the full 100%, you would need to create a separate entity to be your publisher. This can be as simple as using your own name or setting up a corporation or LLC.
Moving forward, I’m just going to assume that you are self-publishing as an independent.
If you are a songwriter, you get 100% ownership of the musical compositions you create as the author of the work.
If there are multiple people involved in the writing of a song, it is up to the songwriters to decide what is a fair share of ownership. If there are 2 people involved in writing a song where one person wrote the lyrics and one composed the music, each author would usually receive 50% percent of copyright ownership.
If there were 4 people involved in writing a song, it’s possible that it could be split 25% each. Or maybe 2 people did not contribute as much so it was decided that 2 people get 30%, and the other 2 only get 20%.
The most important thing is that this is discussed, agreed upon and documented in writing on exactly how the percentages are shared after a song is completed.
Sound Recording Copyright
If you are a recording artist (remember you can be both a songwriter and recording artist), you are the performer in a sound recording. This means that as an author you are the copyright owner of the sound recording.
If the sound recording of a composition was done through a record label, they would typically own the copyright of the master recording depending on the deal or contract. If you recorded a song independently, the master recording is owned by you and the producer.
The authors are the performing artist and record producer, who in essence are also the owners. Producers typically get a small share of the master rights (up to 12.5%). However, recordings are typically made in assignment of record labels, who have negotiated deals with both the artist and producer in which they transfer ownership of their copyright to the label in exchange for royalty payments.
Now that you understand the copyrights behind the music, you can learn more about how you actually make money from this on from my music royalty blog. For a complicated topic, I do my best to break it down as simple as possible for anyone to understand.
3. Be careful when using other people’s music
As a copyright owner, you have the exclusive right to record, perform and distribute your own song. When it comes to using other people’s music for your own benefit, you will need to be aware of two common situations.
Covering Songs
In today’s music industry, it’s common for artists to do covers of songs that belong to other musicians. This goes for independent artists looking for some exposure to even the big name megastars. Sometimes they’re great, but sometimes they spark outrage like when Taylor Swift did a cover of Earth, Wind & Fire’s September. That’s beside the point.
In fact, you are legally allowed to record, distribute and perform a cover without the owner(s) permission. To do so though, you must get a mechanical license and pay 9.1 cents per copy for the use of the musical composition. For example, If you plan to press 500 copies of an album that contains that cover, you will have to pay $455 regardless of how many copies you actually sell.
There is a specific organization called the Harry Fox Agency that deals with mechanical licensing and collection of mechanical royalties.
Popular music distributors like DistroKid and TuneCore allow you to request a mechanical license for a cover song through their platform so there’s less hassle.
When you cover someone else’s song, you have to be careful what changes you make in your recorded version or live rendition. In general, you actually need permission from the songwriters if there are changes to their song. You are allowed to change things like the tempo and key, but usually, everything else requires permission like lyrics, melody and structure.
Sampling
Now let’s say you want to use a part of a song that belongs to someone else and incorporate it into your own composition or recording. This is known as sampling.
In this case, you need sampling licenses from both the songwriter/publisher of the composition and the right holders of the sound recording or master. This is known as clearing a sample.
This is different from covering because they are not obligated to let you use the sound recording. In fact, the owners can charge any amount to use their work or refuse to negotiate.
Technically, no matter how much or little you use of a song that is not yours, it is against the law and you can be sued for infringement unless you have their permission.
Conclusion
Now that you understand the music copyright basics, the next step is to check out my music royalties blog.
