There is always copyright and a copyright owner behind every royalty, stream payout, and sync license. If you are considering earning money from musical composition or sound recording, and if you want to make sure people don’t steal your work, you must know your copyright protections.
However, music copyrights are notoriously complicated. Each part of a musical work has its own copyright, with royalties split between the artists, songwriters, labels, and publishers (the specifics of those splits are negotiated). Furthermore, there are various middlemen, from collection agencies to distributors, who facilitate the collection of royalties.
Our goal here is to clear up the confusion around copyrights by explaining how they work, what protections they confer, and how to protect your music.
First, let’s go over the basics:
What is Music Copyright?
A musical composition or recording is considered a work of art with copyright. Among these rights are exclusive rights to redistribute and reproduce the work, as well as licensing rights that allow the owner to earn royalties.
Two Types of Music Copyright: Master and Composition
You might think that a song you hear on the radio has one copyright, which belongs to the artist whose voice you hear. However, this is not the case. It might be true that the recording artist has not made any money from that radio spin in some parts of the world.
Because every recorded piece of music possesses two copyrights: one for the musical composition, and one for the sound recording itself.
Compositional copyright protects an underlying artistic composition: the arrangement of notes, melodies, and chords. Music publishers (who also own some copyright) manage and hold it on behalf of songwriters, lyricists, and composers.
Copyrights apply to the specific sound recordings, or “master recordings,” that contain a specific expression of the underlying musical composition created by one or more performing or recording artists. Usually, the performing artists and their labels own this copyright.
There are times when songwriters and artists are the same person – if we’re talking about bands that both write and record their own songs. Even then, the music industry will treat the songwriters and recording artists separately.
The process is never as straightforward as it might seem – think cover versions, sampled lyrics, quoted lyrics, external producers, lyricists who assist, etc. It can become complicated figuring out the music copyright for a given song.
When Are Copyrights Created?
Simply put, copyright protection begins as soon as music is fixed. There are different types of music copyrights, which have very different meanings.
In the case of music or lyrics, copyright is automatically created if the work is recorded, printed, or otherwise written down – even if it’s on a crumpled napkin.
However, for master recordings, copyrights are created as soon as the sounds have been fixed in a medium in which they may be perceived, reproduced, or otherwise communicated, as defined by the U.S. Copyright Office. This may be on a digital track, disk, tape, or in another format.
Nonetheless, you may need to take additional steps to ensure that the copyright is actually enforced after the original copyright is created as soon as the musical work is fixed. In Europe, you won’t need to register the copyright at all to obtain full copyright protection; however, in the US, you must register the copyright with the Copyright Office.
Exclusive Rights Held By Copyright Owners
1. Reproduce the copyrighted work
As a first right, copyright owners can print CDs or vinyl copies of copyrighted works, and stream them using streaming services. Whenever someone plays a song on a streaming service, they are activating both the sound recording (aka the master) and the underlying musical work (the composition).
So, any songs in a streaming service’s catalog must be licensed from copyright owners. A master copyright holder receives a streaming royalty, while a composition holder receives mechanical royalties.
2. Create derivative works based on the copyrighted work
A derivative version of the composition can only be created by the owner of the copyright (or his or her permission). Any piece of music that incorporates major copyrightable elements of an original piece is considered a derivative work.
Third parties who wish to create derivative works of a composition or master recording will need either a synchronization license (for the composition side) or a master use license (for the master side). A derivative work is an audio-visual combination that incorporates songs within a larger work such as a TV show, movie, or video game.
A derivative musical work (think remixes and cover versions) is a bit more complex: to qualify as a derivative work, the underlying work must be incorporated into the new, separate work. The remixing and sampling of a song, for example, requires both master use and sync licenses (since they make use of the master and composition to create new works protected by copyright).
Licensing parties (or their respective representatives) and copyright holders negotiate sync and master use licenses one-on-one.
3. Make public copies of the copyrighted work
The copyright protects the right of an author to create new copies of a composition or recording as well as the right of the holder (or authorized party) to sell those copies.
Nowadays, streaming payouts are used to cover the distribution rights of sound recordings. However, distribution of compositions only occurs if the composition itself is released and sold (for example, sheet music sales).
4. Perform the work publicly
The author has an exclusive right to perform his or her work publicly under the copyright. It doesn’t have to be a live performance – any kind of broadcast in a public space qualifies. Public performances include live shows, performances, music played in public venues like bars and clubs, radio and TV broadcasts, and even streaming audio on Spotify.
Songwriters and publishers get most of their revenue from performance royalties, but the country in which they live determines whether or not recording artists receive performance royalties.
In most countries, both composition owners and master copyright holders have performance rights (the performance rights of recording artists are sometimes called “nearby rights” or “related rights”). If the recording artist resides in one of those countries, the neighbouring rights are available for all performances in those countries.
There are two implications, however, since the US is not among them. First, master owners do not receive royalties for public performances in the US. The second problem is that recordings created by US residents don’t generate neighbouring royalties – even if they are played on UK radio stations.
5. Perform the copyrighted work publicly via digital audio transmission
Digital performance rights are exclusive to the US and a few other countries and are intended to counterbalance the lack of neighbouring rights in digital radio.
Like neighboring rights in the US, digital performance rights apply ONLY to digital services such as Pandora and SiriusXM, and NOT to traditional radio (or any other type of public performance). Accordingly, the US recording industry will only pay performance royalties to recording artists whose music is played on digital radios.
6. Publicly display the work
In addition to copyright ownership, another less commonly used right is public display. Visual art and literature are more susceptible to this right — in music, it accounts for a minuscule portion of the actual royalty income.
In the case of audio recordings, there are no “print rights,” since they can’t really be “displayed”. It can, however, be relevant if, for example, a label prints out a song’s lyrics (a part of a composition) on a CD, or if a music streaming service displays lyrics to their users. An inexpensive print license must be acquired in this case.
Essentially, all types of royalties in the music industry – whether they are on the composition or master side of things – derive from the exclusive rights listed above. Right #4 is compensated by public performance royalties, right #1 is compensated by mechanical royalties, sync licensing and master use fees compensate both sides for right #2, etc. Copyright ensures that artists get paid when they are owed.
Basics of Music Copyright Law
You now know what music copyright protects, but how does copyright law work? Below, we explain the basics.
1. Copyrighted work must be original
A key aspect of music copyright is that it’s a uniquely created work by the author: it doesn’t have to be novel or revolutionary – the Copyright Office isn’t going to be your critic – but it must be original.
How do you determine originality? This will be determined in a court of law if need be. One of the most common defenses in music copyright infringement lawsuits is claiming that the underlying work is not original and therefore not protected by copyright. A copyright holder of one work who borrows from another (let’s say both use the same idiom in the lyrics), cannot claim the infringement of the second.
2. Violations of Copyright Law must be proven in court
We already discussed several exclusive rights that the copyright owner holds – and so anyone who violates them is considered a copyright infringer. In most cases, a copyright infringement will result in a large compensation payment – if proven in court.
First, it is necessary to establish whether copyright infringement has occurred. This requires proving:
- Copies have been made of the copyrighted work
- There is a “sustainably similar” copy of the original
To examine the second point, the court normally uses a mix of quantitative and qualitative analysis, so that it can determine how much and how far the copied work is similar to the original source – and if it is comparable enough to it. In general, the court gives more weight to the extent of the copying than the amount – samples that are less than 2 seconds long can be ruled infringement if the “character” of the original composition is represented.
A bit more interesting is proving that the copyrighted work has been copied. In the first place, copyright infringement does not have to be intentional. Say you’ve used a sample from an internet pack that stated all its samples were free to use and licensed under creative commons. The infringement liability will still apply even if your sample was not intended to be part of a copyrighted work.
The judge must also establish that the potential infringer had access to the copyrighted material, or was able to see or obtain it. The same material can be generated independently by two people, on paper. Even if their works are 100% identical, if neither of them had access to the other’s – for instance, if it was stored in a bunker and not published – they will both own legitimate copyrights. This is, of course, an implausible scenario, but under copyright law, it is in fact possible.
Please note, however, that the concept of access does not imply evidence that the infringer physically accessed the copywriter’s material. In any event, since the work has been hosted on an open platform such as YouTube, it must be established that the infringer had the ability to do so.
3. Record labels typically administer (and own) master recording copyrights
A label may be the primary owner of the master copyright or just a party to the deal, acquiring the right to exploit the master copyright on behalf of the artists (and retaining some revenue from the deal). Record labels usually handle royalties and copyrights for works they produced.
It is common for labels to sign artists before the recording is made (recording), and then pay for the recording process, becoming the owner of the master copyright. Following the recording contract, the label shares a portion of the revenue with the artist.
There is, however, a growing trend towards empowering artists through “licensing” deals. This occurs when the artist creates a recording (thereby acquiring the master copyright) and then licenses that existing recording to the label for a fixed period of time. The artist thus retains the rights to their music, as well as ultimate control over it.
4. Publishers are responsible for enforcing compositional copyrights
Compositional copyrights are usually administered by publishers, just as master copyrights are managed by labels.
Compositional copyright, however, is different from master copyright. The writer’s share, which refers to the rights reserved to the creator of the composition, is the first and foremost type of copyright. Usually, the copyright is 50% – though this may differ based on the country or even the type of royalty.
In addition to this, 50 percent of the copyright goes to the publisher, although a portion of it also goes to the songwriter. In exchange for their services, songwriters transfer a percentage of their publisher’s share to their publisher when they sign a publishing contract. It can range between 10 to 100 percent of the publisher’s share, with the duration varying from the entire duration of the copyright to a few years. This varies according to the nature of the publishing arrangement.
5. Copyrights last for 70 years after an owner dies
Copyright protections typically last for 70 years following the death of the last surviving writer. The period of time between publication and creation can be as long as 95 years in some cases. It then becomes public domain.
6. Only US mechanical licenses are required for cover versions
If you want to release covers commercially, you may need a mechanical license in some countries.
Simple covers do not borrow from the master recording (so no master use license is needed) and they copy the composition in its entirety (which is covered by the mechanical license rather than the sync license).
In addition, if you plan on doing covers as part of your live show, you do not need any other licenses.
Benefits of Registering Your Music Copyright
A work is automatically covered by copyright when it is fixed in a tangible form. However, that doesn’t mean the copyright is registered. If you want complete copyright protection (at least in the US), registering your copyright is essential.
1. Make a public record of your copyrights
Registering your copyright first and foremost gives you access to the public record. “Poor man’s copyright” allows you to send yourself a dated copy of the copyrighted work to prove ownership. However, that won’t hold up in court, it must actually be registered with the US Copyright Office.
2. File a copyright infringement lawsuit
One further benefit of having your copyright registered and publicly available is that you can sue if you are infringed by another’s copyright. Essentially, it is only by registering music copyright that the rights are actually enforced.
How to copyright a song
The good news is that registering musical copyright is quite simple, even if you are overwhelmed by the complexity of music copyright law. Follow these steps:
1. Establish a tangible form for the song
If the song is only in your head, you cannot copyright it; you have to record it or write it down so you can send it to the US Copyright Office.
2. Submit a copyright application to the US Copyright Office
For compositional and master copyrights, there are two forms:
3. Pay the filing fee
You can submit an application online for $35, or you can submit a paper application for $75.
4. Submit copies of your work
A copy of the sheet music will be required for musical compositions. If it’s an audio recording, it will usually be an audio file or a CD.
How to maximize your rights
Depending on which side of the copyright you’re trying to maximize: composition or master recording, you’ll earn more royalties. It’s pretty straightforward: distribute your master recordings through a distributor and grow your music sales (through streams). Copyright for compositions, however, is more complicated:
1. Register with the US Copyright Office (or the equivalent office in your country).
Copyright protections or a suit for copyright infringement can only be enforced if the copyright is registered with the US Copyright Office (or its equivalent in your country). It also applies to compositional copyrights.
2. Submit a license application to the Harry Fox Agency
As the only mechanical royalties collection society, the Harry Fox Agency (HFA) is the only place to earn mechanical royalties.
3. Join a PRO (as a songwriter)
Also known as PROs (Performance Rights Organizations), collection societies administer public performance royalties. There are three major music industry organizations in the U.S.: BMI, ASCAP, and SESAC (by invitation only). When you join a PRO, you’ll get royalties whenever your music is performed publicly – the writer’s share.
4. Publish your works
You must publish your composition to earn the full compositional royalties you’re owed. A publisher earns 50% of the royalties for any composition. However, you are not required to work with a publisher: you could also register your own publishing micro-company and self-publish (in this case, you would register with both a publisher and a songwriter).
Self-publishing has the advantage that you’ll get 100% of compositional royalties, but real publishing representation has its advantages as well. Unlike the PRO system, which often loses royalty payments, music publishers have the capabilities and technology to track royalties throughout the pipeline and make sure all royalties are collected. These companies can also represent your compositions and promote them.
Although musical copyrights are complex, copyrighting a music work and getting royalties from that work isn’t so difficult – at least mechanically. The only things you need to do are register your copyrights, join collection agencies, and select a distributor. Don’t forget: by registering your copyright, you’re protected from theft as well as royalties.