Copyright Basics: Sound Recordings & Musical Compositions
Intellectual property is the currency in which the entertainment industry trades. Fans buy your albums or subscribe to Spotify to listen to your copyrighted songs. They buy your shirts, hoodies, and secret recipe GWAR-B-Q sauce because the merchandise features your trademarked name or logo. As an artist or an artist’s representative, it is critical to understand at least the basics of what rights you control in your art, and how best to monetize those rights. Today, I am only going to speak about copyrights, and further focus on those in musical compositions and sound recordings.
First, what is a copyright? According to the United States Copyright Act, “original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device” are protected under federal copyright law. In short, anything that you create that someone can somehow reproduce – whether physically or digitally – is copyrightable. This notably includes musical compositions and sound recordings, but also other works of art such as books, paintings, sculptures, films, plays, choreography routines, and software codes. This does not include band names, album titles, or song titles. Your band or performer name may be subject to trademark protection once you reach a certain level of notoriety, but that is another conversation for another day. As for album or song titles, those are free for anyone to use.
You own the copyright in your song as soon as it is “fixed in a tangible medium of expression,” and that protection generally extends for 70 years after your death. “Fixing” your song can be something as simple as recording a demo on ProTools, singing a melody into your iPhone voice memos, or writing lyrics down in a journal. No further formalities are required and, from that moment forward, that melody or those lyrics belong to you.
That being said, it is still advisable to register your copyrights with the Copyright Office. Their fees are low ($55 for standard registration at the time of publication) and you can put an entire album or EP on one application. You cannot sue for copyright infringement without a formal registration from the Copyright Office, and it is always better (and cheaper) to be prepared ahead of time.
Now, with those basics out of the way, we can move on to the two copyrights those in the music business encounter most frequently: those in sound recordings and musical compositions.
The first major copyright in the music industry is that of the sound, or master, recording. Sound recordings are among the newest art forms to be afforded protection, having just been added to the United States Copyright Act in 1976.
Each recording of a composition (discussed below) is a separate copyright. For example, the album version of Missy Elliott’s “Get Ur Freak On” is one master recording copyright. If Missy records a live version at one of her concerts, that live recording will have a separate copyright. If you perform “Get Ur Freak On” at your local talent show and record it, that will spawn yet another master recording copyright. This can continue ad infinitum. There is no limit to how many times a single song can be recorded, and therefore, no limit as to how many sound recording copyrights may be based on a single composition.
Ownership of sound recording copyrights can be tricky. Anyone who either contributes to the creation or funding of a master has a claim to ownership. This can include the recording artist, record company, producer, mixer, side musicians, and remixers, in the case of remixes. As you can see, this can get fairly messy very quickly, and is where a knowledgeable entertainment attorney can be worth their weight in gold. Music attorneys have an arsenal of agreements to ensure that, as a recording artist, you get all of the rights that you need to exploit your master without worrying about a future lawsuit from an aggrieved producer. Note that, if you are signed to a traditional record deal, your label will likely be the owner of the master recording at the end of the day, but they will still require you to get signed agreements from everyone involved in the creation of the master recording, to secure their rights.
Underlying every master recording is a musical composition. Composition copyrights protect the melody and lyrics of a song, or what I like to think of as the sheet music for a song. These copyrights are also commonly referred to as “publishing rights.”
Unlike master recordings – where there can be countless different recordings of one song and countless copyrights owned by countless people – the owners of a musical composition copyright never change. In the example above, all three recordings of Missy Elliott’s “Get Ur Freak On” embody the exact same musical composition. If all three recordings were available on iTunes, the same songwriters would get paid for each sale, but three separate master recording copyright owners would get paid on the master side.
The ownership issue here is much more cut and dried than with master recordings. Each songwriter (or their publisher, if they have signed a publishing deal) will own an equal portion of the composition, unless all writers agree otherwise in writing. This is another time when a good music lawyer can come in handy. Say you’re in a writing session with Joe, and his friend Bob stops by to drop off a pizza, at which point he suggests that you change one lyric, then leaves. Bob could arguably claim 1/3 of your song. I think we can all agree that Bob should not get 33% of your song. Your lawyer will have songwriter agreements that everyone can sign, or, if you don’t have a lawyer, you can all simply agree to percentages in an email. The sooner these splits are agreed upon, the better. No one wants to try to remember exactly what they did in a session six months ago, particularly for prolific songwriters.
To give you an idea of how these rights play out in the Real World, below are some examples of how both master recordings and musical compositions can be monetized. This list is by no means exhaustive, and only includes the top 2-3 sources of income from each.
· Recording Royalties: If you’re signed to a record deal, these royalties will come from your label or distributor. If you are an independent artist, this includes all monies received from streaming services, and the sale of physical and digital units.
· Synchronization Licenses: When someone wants to include your song in a film, TV show, video game, or commercial, they need to get a license from both the master recording copyright owner and the musical composition copyright owner(s). These fees can vary wildly depending on the recording artist, songwriters, and the specific use.
· Mechanical Royalties: Every time that a song you write is purchased – whether physically or digitally – or streamed, you will be paid a royalty. This is called a “mechanical royalty,” harkening back to the days of piano rolls when songs were “mechanically” reproduced. These royalty rates are set by statute in the United States and Canada and are paid to songwriters/music publishers by the master recording copyright owner, usually a record company.
· Synchronization: See the master recording list above. It is a generally accepted practice to pay the master and composition owners the same fee for a sync use, with very limited exceptions.
· Public Performance Royalties: These royalties are paid every time your composition is performed publicly: on the radio, on television, in a bar, restaurant, or store, or in a live performance. ASCAP and BMI collect, administer, and pay out these royalties in the United States. Unfortunately, the United States is one of three countries, along with North Korea and Iran, that does not pay recording artists or sound recording copyright owners for the public performance of their songs. Only songwriters/music publishers are paid here.
By Katrina Bleckley, Esq., distributed under a Creative Commons CC-BY license.
Image by Charles Hutchins, distributed under the CC-BY creative commons license.
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