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What Exactly is a Music Copyright?

by Joy R. Butler, Esq.

[Audiobook Cover] This article is an excerpt from the audiobook,
The Musician's Guide Through the Legal Jungle:
Answers to Frequently Asked Questions About Music Law




What exactly is a music copyright? Think of a copyright as a bundle of exclusive rights. The exclusivity means that only you as the copyright owner may exercise those rights in your music, or authorize others to exercise them.

It's easy to copyright music. You have a valid copyright as soon as your original song or sound recording is fixed in a tangible medium of expression. That's a fancy term coined by music copyright law, and means that your song or sound recording must be written down or recorded. You don't need to register your copyright with the U.S. Copyright Office in order to have a valid copyright. However, registration does give you additional protection in the event someone infringes your work. For additional copyright information and to learn how to register your music copyrights, read the article, How to Copyright Songs and Sound Recordings

The Copyright Act provides for six exclusive rights. Which of those six exclusive rights a copyright owner has depends on the type of work or artistic creation involved. In this article, we'll look at the copyright owner's exclusive rights in songs and sound recordings. Let's start with a brief review of how a song differs from a sound recording.


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Distinction Between a Song and a Sound Recording

Understanding the distinction between a song and a sound recording is crucial to understanding your rights within the music industry. A melody and any accompanying lyrics make up the song or the musical work. Musical work is the term used by the Copyright Act to refer to a song. A sound recording is the recorded performance of a song.

A single song may have several different sound recordings. For example, the song "Amazing Grace" has been recorded by a number of artists including Aretha Franklin, Elvis Presley and Leontyne Price. The familiar melody and lyrics make up the song. Aretha Franklin's recorded performance of "Amazing Grace" is one sound recording; Elvis Presley's recorded performance of the song is a separate sound recording; and Leontyne Price's recorded rendition of "Amazing Grace" is still a third and distinct sound recording. That's three separate sound recordings for the same song.

Music copyright law recognizes a copyright in the song and a separate copyright in the sound recording. While the copyright owner of the song and of the sound recording can be the same person, it usually doesn't work out that way. The songwriter is typically the initial copyright owner of the song. When working with music publishers to generate song revenue, songwriters frequently transfer the copyrights in their songs to another person or organization. Take a look at the article, Music Publishing: How Your Songwriting Generates Income, for a discussion on music publishing and the sources of song revenue.

With very few exceptions, recording contracts provide that the record company is the copyright owner of any sound recordings made under the contract. In those situations where there's no written agreement indicating who owns the sound recording copyright, the copyright is owned by the creators of the sound recording. While the creators are usually the performers, in some situations, the creators might be the producers or recording engineers.


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Exclusive Rights in a Song

For the copyright owner of a song, the most important exclusive rights are the rights to make copies or records of the song, the right to distribute copies and records of the song, and the right to perform the song publicly. With respect to the right to perform the song publicly - also called the public performance right - it doesn't matter whether a live band is performing the song or whether a club d.j. is playing a recording of the song. Either can qualify as a public performance.

As the copyright owner, you also have the exclusive right to prepare a derivative work based on the song. A derivative work is a new work based on or derived from one or more pre-existing works. For example, if you write new lyrics for one of your existing songs, the resulting song is a derivative work.

The final exclusive right in your song is the right to display the song in public. As you might imagine, the right to display a work in public has much more importance for visual creative works such as paintings and sculptures than it does for a song. However, the display right might apply to a song if, for example, you wanted to post the sheet music to your song on an online website.


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Exclusive Rights in a Sound Recording

The exclusive rights for a copyright owner of a sound recording include the rights to reproduce and distribute records containing the sound recording. These are the rights that record companies are exercising when they manufacture and sell CDs and cassettes of an artist's recorded performances. As the copyright owner of a sound recording, you also have the right to prepare derivative works from your recording. As explained above, a derivative work is a new work derived from one or more pre-existing works. Making a derivative work of a sound recording entails placing a portion of an existing recording into a new recording.

The most significant distinction between the exclusive rights to a song and to a sound recording is the public performance right. Before 1995, the exclusive right to perform a work publicly applied exclusively to songs and not to sound recordings. This means that when a recording of a song is performed publicly on the radio, on television, or in a nightclub, the owner of the musical composition - the songwriter, or her assignee - receives royalty income for that performance. The owner of the sound recording, which is usually the record label, and the artist performing the song on the sound recording do not.

In 1995, Congress passed the Digital Performance Right and Sound Recordings Act. This law gave sound recordings a very limited public performance right. The right applies only to public performances that take place by digital audio transmission. A digital transmission conveys information in a format that a computer understands using a stream of 0s and 1s. So this performance right applies primarily to performances of sound recordings on the Internet and not to performances of sound recordings that are on television, on radio, or just played through an electronic stereo system


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This table summarizes the exclusive rights in music copyrights:

The Copyright Owner's Exclusive Rights
in Songs and Sound Recordings
Exclusive Right Song Sound
Recording
Make Copies
or Phonorecords
[YES] [YES]
Distribute Copies
or Phonorecords
[YES] [YES]
Prepare
Derivative Works
[YES] [YES]
Perform Publicly [YES] ---
Display Publicly [YES] ---
Perform Publicly
by Digital Audio
Transmission
--- [YES]


Joy R. Butler is an entertainment, intellectual property and business attorney. (View Joy Butler's full bio.).


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