Copyright law allows artists to reap the economic benefits of their creative endeavors by enabling creators, producers, publishers and distributors of artistic works to control how, when and whether their works are used. For bands, the key concerns are determining who owns the copyright in newly created songs and understanding what rights and benefits are given to copyright owners.
Copyright law protects “original works of authorship” that are “fixed in a tangible medium of expression.” It protects the particular way an “author” has expressed himself. It does not protect ideas, systems, or factual information conveyed in the work. Nor does it protect song titles.
Works that may be copyrightable include musical works (songs and arrangements) and sound recordings. The work must be original in its melody, harmony, or rhythm; Fixation requires being written on paper, pressed on a phonorecord, recorded on audiotape, or digitally recorded, etc. Musical works receive separate copyrights from sound recordings. A sound recording protects the individual artist from those who might copy her recorded work, regardless of who owns the copyright to the music performed.
Copyright law gives you exclusive rights to:
• Reproduce your work;
• Distribute copies of your work;
• Make a derivative work;
• Display your work publicly; and
• Perform your work publicly, which means to perform at a place open to the public or at any place where a substantial number of persons outside of a normal circle of family and social acquaintances are gathered or to transmit a performance to the public (i.e. through a radio/TV broadcast), whether or not members of the public are capable of receiving the performance in one place and at one time.
Several “public interest” performances are excepted from this group:
• Live educational performances;
• Transmissions to classrooms;
• Religious performances;
• Face-to-face performances of musical works for free or for some charitable purpose;
• Record stores may play records to promote sales;
• Home listening is okay; and
• Small businesses and restaurants conforming to limitations on the number of loudspeakers and TV screen sizes also are permitted.
Before you write a song with someone else, you should decide who will own the song. Absent a written agreement, collaborators have equal interest in the copyright. Joint authors enjoy undivided ownership in the copyrighted work and may independently exercise any of the “exclusive” rights. A work is considered “joint” if it is prepared by two or more authors (musicians) with the intention that their contributions be merged into inseparable or interdependent parts of the whole. The contribution of each author must itself be copyrightable (i.e. original and fixed). You can, of course, decide to split the ownership in some other manner. If you do, put it in writing.
Exclusive Rights? Really?
Copyright protection does not last forever. Most works are protected until 70 years after the death of the last surviving author. Although the general rule is that the person who creates a work is the author of that work, there is an exception to that principle: “works-made-for-hire.” When works are made by employees while acting within the scope of their regular employment, the employer is considered the author. The term of copyright protection of a work-made-for-hire is 95 years from the date of publication or 120 years from the date of creation, whichever expires first. Works that are no longer protected are considered “in the public domain.”
“Fair use” is probably the most significant limitation on a copyright owner’s exclusive rights. While courts define what constitutes fair use on a case-by-case basis, using a portion of a copyrighted work for purposes of parody, news reporting, research, or education generally does not require the permission of the “author.” Copyright law sets out four factors to be considered in determining whether or not a particular use is fair: the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; the nature of the copyrighted work; the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and the effect of the use upon the potential market for or value of the copyrighted work.
The distinction between “fair use” and infringement may be unclear and not easily defined. There is no specific number of words, lines, or notes that may safely be taken without permission. Acknowledging the source of the copyrighted material does not substitute for obtaining permission.
Sampling without the authorization of the copyright holder is likely not fair use.
Compulsory licenses, also known as statutory licenses, are another exception to the copyright holder’s exclusive rights of reproduction and distribution. They allow anyone to record and distribute any commercially-released, non-dramatic (a song that is not from a musical or an opera) song as long as the mechanical license rates established by copyright law are paid to the copyright owner of the song.
Be aware that there are separate copyrights in the song, the arrangement, and the recording. Generally, the copyright in the sound recording is owned by the record company.
How Do You Copyright A Song?
The way in which copyright protection is secured under the present law is often misunderstood. Copyright protection occurs automatically when your work is “created,” which is defined as being “fixed” on a lead sheet or recorded for the first time. A composition that exists only in the composer’s head is not eligible for copyright protection. No publication or registration is required to secure copyright protection. There are, however, certain advantages to registration:
• Registration establishes a public record of the copyright claim;
• Registration is necessary before an infringement suit may be filed in court; and
• If registration is made prior to an infringement claim or within three months of publication, the copyright owner may be entitled to statutory damages and attorney fees.
Generally, the copyright registration process is not difficult and probably does not require the assistance of an attorney. If you live in Southwestern Illinois or Missouri and would like an attorney to work with you, please apply for assistance. For online forms, instructions and free circulars, visit the U.S. Copyright Office site.
How About Copyright Notice?
Use of the copyright notice (c) John Doe, 2015 is optional, though highly recommended because it informs the public that the work is protected by copyright, identifies the copyright owner, and shows the year of first publication. The notice for sound recordings is (p) John Doe, 2009.
How About Using Works By Other Artists?
As a songwriter, you may be able to earn money by licensing your songs for various uses and collecting the corresponding royalties. Respecting the rights of other artists isn’t just about copyright law; it’s about treating others as you wish to be treated yourself.
• When performing works by other artists in a club or some other venue, the burden is on the venue owner to obtain licenses, usually from ASCAP and/or BMI.
• When using artwork and photographs for websites, CDs, posters or other purposes, be sure to get permission.
• When recording covers or sampling, get permission.