Copyright Basics

What is copyright?
What can and cannot be copyrighted?
Using copyrighted works
Scope of copyright
Exceptions to copyright protection
Duration of copyright
Copyright notice and registration

What is copyright?

Q.  What is a copyright and why is it important?

A. Copyright is a form of legal protection, provided by federal statute, to creators of artistic works.  As mandated in the United States constitution, the purpose of the copyright statute is to promote the progress of science and useful arts by giving creators certain exclusive rights to control their works for a limited time.  These exclusive rights essentially ensure that, from a legal standpoint, no one but the creator can use a work in a number of proscribed manners without the creator’s permission.  Thus, the exclusive rights afforded by copyright give rise to its legal definition: “a limited duration monopoly.”

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What can and cannot be copyrighted?

 Q.  Does my music qualify for copyright protection?

A.  In order to copyright a work, two requirements must be met.  First, the work must be original.  Original in this context generally means that the work was not copied from someone else’s work.  Second, the work must be fixed in a tangible medium of expression.  With respect to music, fixation in a tangible medium refers to recording the work on something you can hold or touch.  Examples are writing a song down on paper or recording a song onto a storage device such as a tape, DAT, CD, DVD, computer hard drive, or other recording medium.  Merely performing a song live does not fix the work in a tangible medium.

Within the subject area of music, there are a number of important types of works that merit discussion.  One of the most important distinctions to make is between a musical work (also referred to as a “composition” or sometimes, confusingly, a “song”) and a sound recording (also referred to as a “master”).  A musical work is comprised of the musical notes and rhythms, as well as lyrics, of a song.  A sound recording is a particular recording of a musical work.  The reason for the distinction is that the individuality in expression that occurs during a particular performance has independent artistic value separate from the underlying musical work.

 Q.  A bunch of us jam every week at a local club.  What about the copyrights to that music?

A.  A number of things are not copyrightable.  First, songs or performances that are not fixed in a tangible medium are not copyrightable.  This includes songs in one’s head or songs a band has been playing live but has not yet recorded.  To be copyrightable, a song must be written down on paper or recorded.

 Q.  My music is so different that it deserves its own Grammy category.  Can I stop other musicians from using my sound?

A.  Ideas and concepts are not copyrightable.  Only the “expression” of an idea is copyrightable (the way you describe the idea).  For example, suppose an artist records a song or album that is later credited with creating an entirely new genre of music.  The artist cannot claim a copyright over the entire genre.  The artist may only copyright particular song, sound recording, and album.

 Q.  Some guy says he used our song title first so he owns the rights to the name.  Is he full of it?

A.  Words and short phrases (written or musical), are generally not copyrightable.  This includes song and album titles.  However, names, titles and phrases may be protected under other laws, such as trademark.  With respect to musical notes, whether short phrases are copyrightable is decided on a case-by-case basis.  For example, the five notes played by the spaceships in the movie "Close Encounters of the Third Kind" are copyrightable because of their originality.

 Q.  I want to record “The Star-Spangled Banner” (written in 1812).  Do I need to get permission first?

A.  Songs in the public domain are not copyrightable. Copyrights have a limited duration. Once the term of the copyright has expired, the song enters the public domain – that is, it is owned by the public. After a song enters the public domain, anyone is free to use the song however he or she may choose. For example, songs in the public domain may be covered or sampled without the original creator’s permission. However, any new recording of a song in the public domain is copyrightable as a sound recording.

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 Who owns the copyright?

 Q.  Our lyricist already has a copyright on the music.  Does that mean I have no legal rights in my contributions to the recording?

A.  Both the musical work and sound recording are separately and individually copyrightable.  Furthermore, because every sound recording is by definition a particular recording of a musical work, every sound recording necessarily embodies two separate copyrightable works—the sound recording and the musical work.  You have independent rights in your recording.

 Q.  I play in a band.  Which of us owns the rights to our work?

 A.  A joint work is created when 1) two or more artists contribute to the work and 2) the artists intend that their respective contributions be merged into a single work.  Each artist is a co-owner of the entire work, regardless of the amount he or she contributed. Additionally, each co-owner can individually control the work (including selling it) without the permission of the other owners (they still must give the other owners their fair share of any proceeds though). Thus, if one person writes the music and another person writes the lyrics to a song, both own 50% of the song and both can use or sell the song without the other’s permission. Similarly, songs that are written by bands are owned equally by each contributing member.

 Q.  The songs on my album were all written and performed by several different people.  Does that mean I can’t get the copyright to my album?

A.  An additional type of work is the compilation.  Compilations are formed by the collection and assembling of preexisting materials or data in such a way that the resulting work as a whole constitutes an original work.  If the materials in the compilation are each individually copyrightable, it is called a collective work.  The copyright in the compilation or collective work is a separate copyright than the copyrights in the component works, regardless of whether the same artist created all the works included in the compilation or collective work.  In the area of music, it is important to note that the legal definition of compilation (a collection of materials generally) differs somewhat from the colloquial use of the word compilation (a collection of songs by different artists).  Thus, any album, whether it includes songs by one or many different artists, is a compilation or collective work and may itself be copyrighted, regardless of whether each song on the album has already been individually copyrighted.

 Q. I was hired to do some session work.  What are my rights in what I produce for them?

A.   You may be dealing with a work made for hire (or “work for hire”). There are two types of works for hire. The first type is a work made by employees in the scope of their employment. This means the employer must actually direct or supervise the creation of the work in a very specific way. This type of work made for hire is fairly rare in music because of these strict requirements. The second type of work made for hire must be 1) commissioned (that is, made at the request of someone), 2) created under a written agreement, and 3) created for use in a motion picture or other audiovisual work, a collected work, or compilation (actually, there are other possibilities as well, but they are irrelevant in the music industry). In both types of works made for hire, the employer or business commissioning the work owns the work in its entirety. The actual creator of the work owns nothing. For example, if a movie studio hires someone to write a score for a movie, the score will fall under the second type of work made for hire and the movie studio will own the score. Additionally, record labels have long claimed that albums are works made for hire because they are collective works. However, the law in this regard remains unsettled.

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 Using copyrighted works

 Q. What is copyright infringement (or “piracy”)?

A. Copyright infringement occurs when any of the exclusive rights in a copyright are violated without the owner’s permission and no exceptions apply. Piracy most often refers to infringement through unauthorized copying and/or distribution, including downloading, of copyrighted works. Those who infringe copyrights are subject to both civil and criminal penalties. Furthermore, those that aid others in infringing may also be subject to penalties. For example, the owner’s of the original Napster, though they did not themselves download songs without the permission of the copyright owners, were held liable because the software allowed others to download songs illegally.

 Q.  Can I sample a short section of someone else’s music and use it in my recording?

A.  The owner of a copyrighted work has the exclusive right to make a derivative work. To use a sample you need to obtain permission from the original copyright owner. In essence, derivative works build upon, transform, or modify existing works.  Derivative works arise in the music industry primarily from the use of samples.  Any work that uses a sample of another song is a derivative work, regardless of how long or short the sample or how much the sample is changed or altered.  A particular arrangement of a song is also considered a derivative work. 

 Q.  What if I want to sample some music that was written by one person and recorded by someone else?  Who do I go to for permission?

A.   As discussed previously, each sound recording embodies two copyrights – one in the musical work and one in the sound recording. However, it is not always the case that one person owns both the sound recording and musical work embodied in the recording. Suppose, for example, that a songwriter, A, writes and records a song. Obviously, A would own the copyright in both the musical work and the sound recording. If B later records A’s song, B would own the copyright to the sound recording which he recorded. However, A would still own the copyright in the musical work embodied in B’s recording.

The result of this dual ownership of any single recording means that anyone wishing to use a recording in certain ways must often obtain the permission from two separate owners. For example, suppose C wishes to make copies of B’s recording. C must get the permission of both B, who owns the sound recording copyright, and A, who owns the musical work copyright. Similarly, if C wishes to sample B’s recording or use it in the soundtrack to a movie, B must again get the permission of both B and A. Finally, C must get the permission of both B and A to sell or distribute original copies of B’s recordings. In each case, because A’s musical work is embodied in B’s recording, any copy, sample, or distribution of the sound recording is necessarily a copy, sample or distribution of the musical work.

Q.  Somebody is selling a CD that includes one of our live performances.  Can they do that without my permission?

A.  Compilations or collective works often contain components that are separately copyrighted.  If the creator of the compilation or collective work is different than the creator of the separately copyrighted components, each owns a separate copyright.  For example, suppose a record label creates a compilation album that includes a song owned by artist A and gets permission from A to use the song.  The record label cannot use artist A’s song in another album without again getting artist A’s permission.  Similarly, artist A cannot claim ownership to or assert control over the compilation album as a whole.

Q.  I made a hip-hop cover of an old blues song.  Can I distribute it?

A. The creator of a derivative work cannot claim ownership of the works from which a new work is derived. Furthermore, the owners of the works used in the derivative work can claim ownership only to the parts of the derivative work that use the works they themselves own. For example, suppose artist/producer B uses a short vocal sample of a song by artist C, with C’s permission, to create song X. Artist/producer B cannot use the vocal sample in the creation of another song Y without again getting artist C’s permission.  Similarly, artist C cannot sample song X without artist B’s permission.

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Scope of copyright

Q.  OK, now I have a copyright to my musical work. What can I do with it?

A. The scope of copyright protection depends on whether a work is a musical work or sound recording. Copyrighted musical works give the owner of the copyright the exclusive rights over reproduction, creation of derivative works, first distribution, digital phonorecord deliveries, and public performance. The fact that these rights are exclusive means that anyone wishing to engage in the preceding activities must get the copyright owner’s permission.

• • The right of reproduction in this context generally means the right to prohibit others from copying or recording the musical work, regardless of how the work is fixed, without the owner’s permission. Typically, reproductions come in the form of either sheet music or a recording of the musical work (the latter is often referred to as a “mechanical” copy).
  • The exclusive right to create derivative works means that no one can modify the musical work or use part of the musical work to create a new work without the copyright owner’s permission. New works that rely on samples or recognizable melodies and/or lyrics of the copyrighted musical work qualify as derivative works, as do audiovisual works such as commercials, TV shows, movies, and websites that play the musical work along with images. 
  • The exclusive right to first distribution means the copyright owner can control the first public sale or distribution of a copy of the musical work, but not subsequent sales or distributions of that same copy of the musical work (lawyer-types refer to this as the “first sale” doctrine). In real world terms, this essentially means that once the copyright owner sells someone a copy of the sheet music or recording of a song, all subsequent buyers are free to sell, give away, or dispose of that same copy as they wish. However, the copyright owner continues to retain the other exclusive rights, ensuring subsequent buyers cannot create their own new copies and sell them.
  • The exclusive right to control digital phonorecord deliveries means that no one can download a digital copy of the musical work (typically embodied in a sound recording) without the copyright owner’s permission.
  • Finally, the exclusive right over public performance prohibits people from performing a musical work live or playing a recording of the musical work to a public audience, including radio, TV, and Internet broadcasts.  It is worth noting one special characteristic of the exclusive right to public performance with respect to musical works. Unlike the other rights discussed so far, the public performance right is not controlled by the copyright owner himself, but instead is managed by one of a few organizations called performing rights societies. In essence, these performing rights societies grant permission, on behalf of the copyright owners, to radio and TV stations, clubs, department stores, or other venues where music is played for the public. In return for the permission, the performing rights societies then collect fees from the venues and disperse them to the copyright owners.

Q. What can I do with my copyright to a sound recording?

A.  Copyright law provides owners of sound recordings with a slightly different set of rights than is granted to the owners of musical works. Specifically, the exclusive rights granted to the owner of a sound recording copyright are the rights to reproduction, creation of derivative works, first distribution, and public performance (note that there is no right to control digital downloads, as there is for musical works). Unlike with musical works, reproduction in the context of sound recordings is narrowly defined. Specifically, reproduction means to directly or indirectly recapture the actual sounds fixed in the recording. Thus, copying a recording from a CD would qualify as a reproduction of the sound recording (and musical work), but making a new recording of a song using the exact same instruments, and even musicians, playing the exact same notes would not qualify as a reproduction of the sound recording (however, it would be a reproduction of the musical work). Derivative works are defined in generally the same manner as with musical works. In this context, derivative works most often refers specifically to using a sample or the full sound recording to create a new sound recording or to accompany an audiovisual work. First distribution is also defined in the same manner as with musical works. Finally, public performance in the context of sound recordings applies only to digital audio transmissions, commonly known as webcasts.

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Exceptions to copyright protection

Q. What is a compulsory license?

A.  The most noteworthy exception to the exclusive rights granted to copyright owners of musical works is the compulsory license.  A compulsory license means that the copyright owner must allow anyone who wants to use the copyrighted work to do so, whether the copyright owner wants to or not.  In return for this forced license, the copyright owners are reimbursed by fees set through negotiation or by the government (depending on which license applies). The six compulsory licenses are:

• Cable television rebroadcast
• Noncommercial public broadcasting
• Jukeboxes
• Digital performance of sound recordings (e.g. webcasting)
• Digital phonorecord distribution (e.g. downloading digital copies)
• Phonorecords of non-dramatic musical compositions (a compulsory mechanical license or cover license)

Q.  What is fair use?

A. Another noteworthy exception to the exclusive rights previously described is referred to as the fair use doctrine. Fair use provides an absolute exception to the exclusive rights of the copyright owner when another uses the owner’s work in specific ways. In cases where the fair use exception applies, permission from the copyright owner to use the work is unnecessary.

Generally, use of a copyrighted work for criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research qualifies as fair use. While no bright line rules exist for determining whether a particular use is fair, courts rely on a four factor test. The factors are 1) the purpose and character of the use, including whether the use is commercial or for non-profit educational purposes; 2) the nature of the copyrighted work itself, in which courts typically evaluate whether the work is factual, scientific, or artistic in nature; 3) the quantitative amount and substantiality, interpreted as the qualitative amount, of the work that is copied; and 4) the effect of the use upon the potential market for or value of the work.

Generally speaking, uses for non-commercial purposes that will not diminish the copyright owner’s ability to make money from the work are considered fair use. As a result, permission from the copyright owner for those uses is unnecessary. However, if there is doubt about whether a use is fair, err on the side of caution and get permission or speak with an attorney.

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Duration of copyright

Q. How long do I get the copyright on my latest album?

A.  Works originally created on or after January 1, 1978 have copyright protection until 70 years after the death of the creator.  If the work was created by more than one person, the term of the protection continues until 70 years after the last surviving creator dies.  Works made for hire or by corporate businesses, as well as anonymous and pseudonymous works, are protected for 95 years from the date of first publication or 120 years from the date of creation, whichever is longer.  Publication in the world of copyright is a fairly complex idea, but generally refers to offering a work, through whatever means, to the public.

Q. What about all the great music I made in the early seventies?

A.  Works created before January 1, 1978 are subject to a number of complex rules regarding the length of protection.  For these works, the length of the copyright is often dependent on when the work was publi hed, whether the creator applied for an extension, or whether the work is a sound recording or musical work.  Therefore, an attorney should be consulted to determine the length of a copyright for works created before January 1, 1978.

Q. Did I sign away my copyright in my recording contract? Will my kids inherit my copyright?

A.  Although the exclusive rights in copyright are initially given to the creator of the musical work or sound recording, copyright owners can transfer or assign their rights to other people or businesses.  Any or all of the copyright owner’s exclusive rights or any subdivision of those rights may be transferred.  Transfer of the rights on an exclusive basis (meaning only the person who receives the rights has the power to control them, including whether the copyright owner can grant those same rights to other people) are valid only if the transfer is in writing and signed by the copyright owner, or an authorized person acting on the copyright owner’s behalf.  Transfer of the rights on a nonexclusive basis (meaning the person who receives the rights cannot control whether the copyright owner grants those same rights to other people as well) does not require a written agreement.  Copyrights can also be transferred by will or inheritance.

Transfers of copyright are normally made through a contract.  For example, most recording contracts transfer all of the exclusive rights to the sound recordings made under the contract to the record label on an exclusive basis. Thus, the record label, not the recording artist, effectively controls how the sound recordings may be used. Due to the complexity of copyright, artists should always consult an attorney when transferring all or part of their exclusive rights in copyright through a contract.

In the case of any work other than a work made for hire, the termination of a transfer of rights is permitted after 35 years under certain conditions by serving written notice to the transferee (the person to whom the owner transferred the rights) within specified time limits. Ownership of the copyright is regained for the rest of its duration. Due to the complexities involved, an artist wishing to regain her copyright should consult an attorney.

A final note on transfers is that they should be recorded with the federal Copyright Office (see the section on How to Obtain a Copyright for contact information). Though recordation with the Copyright Office is not necessary to transfer a copyright, it does provide certain legal advantages. Again, an attorney should be consulted.

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Copyright notice and registration

Q. What does that © symbol mean?  What about (P)?

A.  Copyright notices in music come in two forms.  The symbol © refers to a copyright in a musical work.  The symbol (P) refers to a copyright in a sound recording.  Regardless of which symbol is used, each is followed by the year of publication (see section on the Duration of Copyright for a general definition of publication) and the name of the copyright owner.

Copyright notice is no longer legally necessary to ensure copyright protection in many instances. Nevertheless, it is highly recommended that all embodiments of a copyrightable work include copyright notices to ensure others are informed about the copyright ownership.  Thus, all tapes, DATs, CDs, DVDs, or other recording mediums, as well as sheet music, written lyrics, and packaging materials for a recording, should include copyright notices.

Q.  Do I have to register my original music in order to get a copyright?

A.  Contrary to popular opinion, registration of a work is not necessary in order to obtain copyright protection under the law.  Since 1976, copyright protection begins automatically from the moment a work is created and fixed in a tangible medium.

Despite the foregoing, registration with the federal Copyright Office is strongly recommended.  The law imposes certain penalties on an artist who does not register a work.  First, the artist cannot collect statutory fees under the “cover” license.  Second, the artist cannot file a lawsuit against someone for infringement.  Third, anyone may challenge the artist’s copyright and the artist will have the burden in court of proving the copyright is valid (i.e., registration ensures the challenger has the burden in court).  Fourth, the artist can’t get certain types of monetary damages for infringement or recover attorneys’ fees paid in the course of a lawsuit.

Q.  How do I register my copyrightable music to avoid these penalties?

A.  As previously discussed, an artist obtains copyright protection automatically upon the creation of a copyrightable work.  However, in order to avoid the penalties previously discussed, an artist should register a work with the federal Copyright Office.  Registration forms can be ordered by writing the Copyright Office at:

Information and Publications
Section LM-455
Copyright Office
Library of Congress
Washington, DC 20559

Additionally, the forms can be accessed online at http://www.copyright.gov/forms/.

To register a work with the Copyright Office, one simply fills out the application, deposits a copy of the work, and pays a filing fee of $30.  The appropriate form for registering a musical work is form PA (performing arts).  The form for registering a sound recording is form SR (sound recording).  If the SR form is used and the artist owns both the musical work and the sound recording, the registration covers both the musical work and sound recording copyrights.  More than one song may be registered for a single fee by putting the songs on a tape or CD and registering them simultaneously as a collection using the form SR.  <OUT OF DATE: TO BE REVISED>

If registering with the Copyright Office is too expensive, an artist can use the “poor man’s copyright.” This consists of simply mailing an envelope with a copy of the song enclosed to oneself, preferably by certified mail, and storing the envelope, unopened, someplace safe when it arrives. The primary reason for using this alternative registration method is to provide proof of creation of a song. This could be extremely important if someone later uses or records the song and falsely claims he actually created it.