So, you’re a musician, writer, or artist, and absolutely love your craft! It brings so much joy to your life, and while you could care less about the business side of things, you realize that you may not have the exclusive rights to that song that you wrote and recorded, and you’re now curious as to who gets to determine what happens with that music, or how to profit from your work of art. While it can seem quite complex at times, it doesn’t have to be a painstaking task to learn your rights. This blog post is designed to discuss some of the basics of copyright in musical works and break down your rights in the work. So let’s jump into it!
Music created today is protected by copyright laws when the work is “fixed in a tangible medium of expression.” Any work produced after January 1, 1978 is protected for the lifetime of the last surviving author plus an additional 70 years.
- Musical works are made up of 2 separate Copyrights. The Copyright associated with the musical composition (melody, notes and or lyrics which make up the musical works), and the Copyright associated with the sound recording, also referred to as the “masters” (The recorded performance of the musical work).
While these two copyrights can be owned by the same person, most often there are multiple stakeholders who own and exploit the associated copyrights in the work. Ownership of the copyrights are most often determined by the circumstances of the song’s creation. To identify the owner of the musical composition and sound recording, the main consideration is whether there was a contractual arrangement which identifies the owner of the work’s copyrights? In the absence of an agreement, the songwriter is likely the owner of both the musical composition and the sound recording.
Both copyrights in a musical work encompass the right and ability to generate royalties by exploiting the work through various means of licensing. There are three (3) types of licenses associated with both copyrights: performance rights, mechanical rights, and synchronization rights.
Musical Composition Licenses
- Performance Rights. Owners of copyrights in the musical compositions have the exclusive right to use or license that composition for public performance. Often, composition owners will license this performance right to persons and entities for a royalty which generates revenue for the composition owner each time the work is performed in public. A public performance is defined as outside a normal circle of friends and family that occurs in any public place such as on the radio, TV broadcasts, digital service providers, live performances of song, played in a restaurant, bar, or other establishment. Because the monitoring of each performance may prove quite tedious, many composition owners register with a performance rights organization (PRO) to license, monitor, collect royalties for, and enforce some of their rights in their composition.
- Mechanical Rights. Owners of copyright in the musical compositions have the exclusive right to reproduce and authorize others to reproduce their musical work. Often, composition owners will license this mechanical right to persons and entities for a royalty which generates revenue for the composition owner each time the work is reproduced by means of any digital format, on a sound carrier (such as a record, tape, or CD), cover songs which are recorded, and sampling. Collection of these royalties are made manageable via registration with mechanical rights collectives who collect and distribute mechanical royalties to eligible persons on a monthly basis, like the Harry Fox Agency, etc.
- Synchronization Rights. Owners of copyrights in the musical compositions have the exclusive right to use the composition as a soundtrack with a visual image. Often, composition owners will license this right to persons or entities seeking to coordinate the composition with their visual medium. An example of the coordination of one’s composition and visual medium would be the accompanying or pairing of a composition with media such as a movie, TV show, YouTube, films, wedding video, video, ads, videogames, and so on. This license must be obtained by a third party prior to use and is generally negotiated between composition owner and licensee as a one-time payment.
Sound Recording Licenses
- Performance Rights. Owners of copyrights in the sound recording have the exclusive right to use or license that sound recording of a composition for public performance by digital audio transmission. Often, sound recording owners will license this performance right to persons and entities for a royalty which generates revenue for the sound recording owner each time the sound recording is performed in public by digital audio transmission. A public performance of a sound recording is defined as outside a normal circle of friends and family that occurs in any public place, such as on non-terrestrial radio, TV broadcasts, digital service providers, played in a restaurant, bar, or other establishment. Because the monitoring of each performance may prove quite tedious, many sound recording owners register with a performance rights Organization (PRO) to license, monitor, collect royalties for, and enforce their composition such as SoundExchange. This right often overlaps with the composition owners’ rights because the composition is embedded in the sound recording, therefore if the owner of the composition and musical work are different, a license must be obtained from both owners.
- Mechanical Rights. This right, often referred to as the “reproduction” right is the exclusive right to reproduce a sound recording royalty owed to owner(s) of SOUND RECORDING when, by means of digital audio transmission, the recording is reproduced and/or duplicated in the form of phonorecords and/or digital downloads. This right is limited to the fixed sounds used in a sound recording. Collection of these royalties are made manageable via Registration with mechanical rights Collectives who collect and distribute mechanical royalties to eligible persons on a monthly basis. (Harry Fox Agency, etc.)
- Synchronization Rights. Synchronization rights refer to the exclusive right of sound recording owner to use recording as soundtrack with visual images. Royalties are owed to owner(s) of sound recordings when sound recording is synchronized with a third parties’ visual medium. Ex: when someone uses a sound recording in media such as a movie, TV show, YouTube, films, wedding video, video, ads, videogames, and so on. Licenses for such should be obtained from both sound recording owner and composition owner if the owners are different.
As you can see, there are many ways to exploit and profit from your music, but it’s most imperative to understand the contract or agreement that you’ve entered into regarding your music. Feel free to reach out to our firm before signing a contract as it relates to your music. Here are Fears Law, we would love to assist you in the review of any agreement you receive, or simply discuss your rights further.
ABOUT THE AUTHOR
Brittney is an associate attorney for the Business Law Division of the firm. She enjoys helping clients navigate their legal issue and making things plain. When she’s not working, you can find her enjoying family or music.