Although the music industry has only existed for nearly a century, the necessity to protect its the work of its creators were predicted by America’s Founding Fathers. Article I Section 8 Clause 8 of the US Constitution says “[The Congress shall have the Power] To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries”.
Preceded by several laws going as far back as 1790, the most recent Copyright Act has been in effect in the United States since January 1, 1978. A vast majority of this article is based on that particular piece of legislation along with several amendments that came into effect after.
So, what is copyright? Copyright is essentially protection for the ownership of intellectual property. While we will be focusing on the mediums of compositions and sound recordings (important distinction we will discuss later), other mediums also protected by copyright include but are not limited to photos, films, musical productions, choreography, books, and architectural designs. Regardless of the medium, copyright lasts for 70 years after the last remaining owner has died.
Upon the creation of a work, Copyright is automatically granted.
According to Section 102 of the Copyright Act, a work does not have to be registered with the Copyright Office in order for it to receive protection; a work is granted copyright as soon as it is “fixed”.
However, the Copyright Office encourages registration as it “establishes...: the title of the work, the author of the work, the name and address of the claimant or owner of the copyright, the year of creation, whether the work is published, whether the work has been previously registered, and whether the work includes pre-existing material”. In cases of copyright infringement, these facts are essential evidence. In addition, it gives potential licensees accurate information to pursue a licensing agreement.
Although optional, a copyright notice is an important tool to use at your disposal. By using a copyright notice on your work, it notifies users that is in fact copyrighted, gives a point of contact for parties interested in licensing, and identifies the year of first publication. The proper format to do is ©, ℗, or the word copyright, followed by the year of publication and name of the copyright owner.
℗ should be used specifically for phonorecords (sound recordings) while © should be used for all other mediums. Additionally, you may add “All Rights Reserved” to indicate that you reserve all the rights granted by the Copyright Law.
Below is an example:
©2019 Schnauz Record Company. All Rights Reserved.
Differentiating Copyrights for Compositions and Sound Recordings
A song (also known as the underlying work) and the recording of that song have separate copyrights. Let’s use Muse's “Uprising” for example. The underlying song was written by Matt Bellamy, and therefore was the copyright owner upon fixation. Afterwards, he decided to share ownership with his publishing company Loosechord Limited. When Muse recorded the song, ownership of that recording was granted to their record label, Helium-3. This distinction is critical to understanding how your rights work and how to access all possible streams of revenue.
Section 106 of the Copyright Law establishes six exclusive rights granted to the Copyright owner of a work.
The right to reproduce copies or phonorecords
The right to prepare derivative works
The right to distribute copies or phonorecords by sale or other transfer of ownership, or by rental, lease, or lending
The right to perform publicly
The right to display publicly
The right to perform via digital audio transmission
Before we get into some examples, let’s go through what some of these terms mean according to the Copyright Act.
A copy is a "material object" in which a work is fixed. Examples of copies include sheet music and lyrics. A phonorecord differs in the fact that it is specifically limited to material objects that have sounds fixed to them. CDs and LPs are considered phonorecords.
A derivative work is something based upon a pre-existing work. This can include arrangements, sound recordings, or any other variation of the pre-existing work.
The term perform in the scope of copyright is not limited to a literal performance but also includes any other ways in which the work is experienced. This is important because a performance in copyright includes radio airplay as well as copyrighted music placed in a film. Display is similar but the work is shown. The most prominent example is posting lyrics online. With that being said, the right is only protected if the worked is performed or displayed publicly. According to the Copyright Law, this refers to a performance or display in front of a substantial number of people who aren't close family or friends whether or not they are there in person to witness it. Essentially this means that the work being performed or displayed cannot be transmitted to public even if the public is witnessing it from a different place or at a different time.
To explain this, we’re going to designate Matt Bellamy and his publisher Loosechord Limited as our Copyright owners. The following activities require permission from the copyright owners otherwise they are in violation of the six rights guaranteed by the Copyright Act:
In order to reproduce CDs that contain Matt Bellamy's song “Uprising”, Helium-3 needs permission from Bellamy and Loosechord
In order for jazz arranger Doug Beach to create an arrangement of “Uprising” for the Elmhurst College Jazz Band, Beach needs permission from Bellamy and Loosechord
In order to sell and distribute records contain Matt Bellamy’s song “Uprising”, Helium-3 needs permission from Bellamy and Loosechord
In order for a local cover band to perform “Uprising”, the venue they’re performing at needs permission from Bellamy and Loosechord
In order for Pandora Radio to stream the recording of “Uprising”, Pandora needs permission from Helium-3
Permission to use copyrighted material is granted through a license. Above are just a few examples of how Matt Bellamy and his publisher's understanding of the Copyright Law allowed them to grant licenses to third parties in order to generate more revenue from their intellectual property.
You can read more about licensing here.
The Main Points
Copyright is automatic but register for protection in court
Compositions and Sound Recordings have their own separate Copyrights (© & ℗)
You have six rights that are guaranteed to you as the Copyright owner
Understanding the significance and protections of Copyright is the first step to profiting off of licensing and publishing