Copyright in music can be an intimidating subject, and while the laws are written vaguely, developing a solid understanding doesn't have to be difficult. You may have heard that copyright will automatically protect your work as soon as you come up with a song while, at the same time, hearing about lawsuits between major label artists. I hope to alleviate the confusion you might have about copyright in this article.
What is music copyright? Music copyright is the legal ownership of a musical composition and/or sound recording. Every song has two copyrights: the musical composition (music, lyrics) and the sound recording (master). Copyright owners have rights regarding how their songs are used and earn royalties from their songs.
In this article, we'll cover the critical aspects of music copyright to give you a solid idea of what copyright is, how it works and how it applies to you and your music.
Disclaimer: I am not a lawyer. The information provided on My New Microphone does not, and is not intended to, constitute legal advice. All information available on this site is for general informational purposes only.
While I will do my best to avoid legal jargon (I find it as confusing as the next layman), there will be some legal terminology in this article. My goal is to research this complex topic and give you the easy-to-understand gest of copyright law. To learn more, I suggest reading the legal documents of the copyright law from your particular country or region.
With that out of the way, let's get to the good stuff!
Table Of Contents
- What Is Music Copyright?
- What Can Be Copyrighted In Music?
- What Cannot Be Copyrighted In Music?
- How To Copyright Your Music
- The 6 Exclusive Rights Of Copyright Law
- What Is The Purpose Of Music Copyright Law?
- What Is Co-writing?
- How Long Do Music Copyrights Last?
- Public Domain And The Expiration Of Copyright
- Resolving Copyright Issues
- A Note On Fair Use
What Is Music Copyright?
Before we get into the strict definitions, it's imperative to state that copyright protection exists from the moment an original work is “fixed” in a tangible medium.
Tangible media include written sheet music, hard drives (including audio files and DAW projects), CDs, tapes, etc. It could be as simple as recording a performance on a voice memo app on your smartphone.
You don't need anything else to be protected by copyright. However, in proving copyright, it's beneficial to register your works with your country's copyright office and/or your performance rights organization.
Compare that to other types of intellectual property (patents, trademarks, industrial design, trade secrets, etc.), and copyright is by far the easiest to obtain.
Let's now consider a couple of definitions of copyright.
The Merriam-Webster Dictionary defines copyright as:
“The exclusive legal right to reproduce, publish, sell, or distribute the matter and form of something (such as a literary, musical, or artistic work).” (source)
The U.S. Copyright Office defines copyright as:
“A form of protection provided by the laws of the United States for “original works of authorship”, including literary, dramatic, musical, architectural, cartographic, choreographic, pantomimic, pictorial, graphic, sculptural, and audiovisual creations. “Copyright” literally means the right to copy but has come to mean that body of exclusive rights granted by law to copyright owners for protection of their work. Copyright protection does not extend to any idea, procedure, process, system, title, principle, or discovery. Similarly, names, titles, short phrases, slogans, familiar symbols, mere variations of typographic ornamentation, lettering, coloring, and listings of contents or ingredients are not subject to copyright.” (source)
Music copyright, then, is the legal right over one's own musical work.
Keep these definitions in mind, as I'll be referencing them throughout this article!
Though these two definitions come from American definitions, they generally apply across the world. It's important, however, to note that copyright laws vary from country to country (Eritrea, Turkmenistan and San Marino have no copyright laws).
Also, there is no such thing as an “international copyright” that will automatically protect a work throughout the world.
The term “copyright” literally means the “right to copy”.
In the case of the musical composition, the owner has the right to copy the performance of the song (every time the song is performed counts as a “copy”).
In the case of the sound recording, the owner has the right to copy the recording of the song (every time the song is recorded to a physical medium, downloaded, streamed, or aired over radio counts as a “copy”).
Let's discuss each of these copyrights in a bit more detail.
What Can Be Copyrighted In Music?
Every song has two copyrights:
- The musical composition (lyrics, melody, arrangement)
- The sound recording (master recordings)
The Musical Composition Copyright
The musical composition copyright refers to the composition itself (made up of the music and lyrics). This copyright is generally owned by the songwriter(s) and/or their publishing company unless otherwise transferred.
Every time the song is performed, sold or streamed, the music composition copyright holder will get paid royalties.
The Sound Recording Copyright
The sound recording copyright refers to the recording itself. A single composition can have multiple sound recordings (demos, official releases, live recordings, alternate takes, remixes, covers, etc.). This copyright is generally owned by the record label or the songwriter(s) unless otherwise transferred.
A sound recording is often referred to as a master recording or simply as a “master”.
The idea here is that each recording of a song is its own original piece of art, so both the composition and the recording are worthy of their own copyright.
Every time the recording of the song is performed, sold or streamed, the sound recording copyright holder will get paid royalties.
An exception to this is with United States terrestrial radio (AM and FM), where royalties are not paid to sound recording copyright holders on covers of songs (the musical composition copyright holder earns all the royalties). This is not the case in most other countries and is not the case for internet radio within the United States.
Additional Notes On The Two Music Copyrights
All copyright holders must grant permission to use any song.
In the past, it was typically the case that the musical composition copyright was owned by the artist, songwriter and/or their publishing company. In contrast, the sound recording copyright was owned by the record label.
In other words, the artist(s) and songwriter(s) own their composition, and the record label (responsible for recording and distributing the music) owns the sound recording.
Today, the landscape is often much different.
Many solo indie artists own 100% of their music copyright (the composition and sound recording).
Co-writing deals are often written to give writing credits to multiple co-writers. In some cases, these deals aren't exactly accurate (it can be difficult to state exactly how much a single writer contributed to the song).
It's worth mentioning, too, that the rights of a song can be split in many different ways. It all depends on the contract (if there is one).
For more info on making money as a record label, check out my article Top 11 Ways To Make Money As A Record Label.
What Cannot Be Copyrighted In Music?
As important as it is to understand what is protected under copyright law, it's also critical to note what is not protected.
Music copyright does not protect the following:
- Song titles
- Short phrases (without repeat)
- Company names
- Band/artist names
- Basic harmony and chord progressions
Generally speaking, you cannot copyright a song title or band name, though you may be able to trademark them.
In terms of the music itself, copyright can be said to protect the expression of an idea but never the idea itself.
As we'll see in the upcoming section, What Is The Purpose Of Music Copyright Law?, its purpose is to advance creativity and innovation within a civilization. It's made to encourage unique and novel works of meaningful art but cannot and will not protect the basic building blocks of music.
The majority of modern music follows similar harmonic structures and rhythms. Songs often fit into one or more specified genres or styles.
If copyright law were so strict that musicians could own any of the above-listed ideas, there would be nothing left to write.
So the copyright laws are loose and vague for a reason. They allow the continuation of the tradition of music while still protecting artists and giving songwriters economic incentive to produce original works of art.
Note that copyright law, like most laws, is also intentionally vague to accommodate changes as technology and civilization progress. We've come a long way from sheet music and acoustic instruments to internet streaming and computer-based music.
How To Copyright Your Music
As mentioned previously, copyright is automatically created as soon as a song is written and “fixed” in a tangible medium.
So if you can think of a song and record it, you have the copyright over that song.
Tangible mediums include:
- written sheet music
- chord changes
- written lyrics
- audio recordings
- DAW projects
However, proving your copyright is not as easy. Though copyright is created automatically as you create a song, proving your copyright is another issue.
Without hard proof, your copyright claims will be dependent on your word alone.
It may be worth acquiring an official copyright document to make your copyright that much more legitimate (especially if you ever end up in court). This is especially the case if the song is likely to make large amounts of money.
To register the copyright of your song, go to your country's copyright office and pay for an official copyright for your work.
To register your work in the United States, go to the US Copyright Office (copyright.gov).
I'm a Canadian, so I would go to the Canadian Intellectual Property Office (ic.gc.ca) to register my songs.
If your country does not have an official copyright office, you can always choose to register elsewhere. I would always suggest registering with the US Copyright Office if you choose to go out-of-country.
The 6 Exclusive Rights Of Copyright Law
There are six exclusive rights that cover music copyright owners.
The term “exclusive right” technically means that the rights holder has the ability to exclude anyone or everyone from doing anything with the owned copyright.
These six exclusive rights of owning music copyright, in no particular order, are:
- The right to copy your work
- The right to distribute your work
- The right to perform your work in public
- The right to broadcast (stream) digital recordings
- The right to make a derivative work
- The right to display your work in public
Note that the above-listed rights do not all apply equally to the two copyrights of each song. For example, the right to perform the work in public only applies to the composition copyright. Conversely, the right to broadcast (stream) digital recordings only applies to the sound recording copyright.
However, these exclusive rights generally benefit the composition copyright more than the sound recording copyright.
Remember that copyright exists as soon as the work is created, and these rights are given to the creator(s) regardless of registration. However, copyrighted works must be registered if you wish to bring a lawsuit for infringement (at least in the United States).
With that said, let's get into each of the exclusive rights.
The Right To Copy Your Work
The right to copy your work (also referred to as the right of reproduction) means that only you can copy your work. In negative words, you can prevent anyone from making a copy of your music.
This right applies to both copyrights of a song (musical composition and sound recording).
If you write a song, you have the right to that song. If you have yet to release your original song, no one is allowed to record or copy it without your permission.
This right is especially useful where the songwriter is not the recording/performing artist, which was often the case historically and is still the case in certain circles of modern music.
A “copy” refers to a physical recreation of the recorded song (on a phonograph, tape, CD, digital file, etc.), a performance of the song (live performance, terrestrial radio, covers by other musicians—including their sound recording, etc.).
The copyright owner(s) will be paid mechanical royalties whenever their work is copied (physically printed, downloaded digitally, or streamed interactively).
The Right To Distribute Your Work
You have the right to offer, distribute, sell, rent and lend your music to the public. In other words, you have the right to publish your works and make them publically available.
It wouldn't make much sense to copy your work if you weren't going to distribute it.
This right allows the author to transfer their copyright, assign or otherwise hire publishers, and enter agreements with distributors.
Firstly, you can sell or transfer your copyright to another individual or company. This is rare but does happen in some cases. It's more common to add additional splits to a copyright than to transfer a copyright completely.
The publisher or publishing company can either own a part of the compositional copyright or be paid a fee for publishing the music. Publication refers to making the work available to the public.
A record label's distributor can distribute physical music into stores and online. Authors also have the right to distribute physical music on their websites, at shows and elsewhere.
As for digital music, third-party distributors are the best way to get your music onto streaming and download services.
The Right To Perform Your Work In Public
The right to perform your work in public means that you can prevent or allow anyone from performing your music in public.
This right applies only to the musical composition copyright.
Copyright owners rarely stop public performances since
- It's incredibly hard to do so; and,
- Royalties are paid to the copyright owner(s) each time their work is performed live.
First, the performance of the song in public can pay performance royalties, collected and paid via a performance rights organization (PRO). The amount paid per song is often split 50/50 between the songwriter(s) and the publisher. Look into how your PRO pays out.
Second, the reproduction of a sound recording in public (a live venue or terrestrial radio) will pay a mechanical royalty to the songwriter(s)
The Right To Broadcast (Stream) Digital Recordings
The right to broadcast digital recordings allows the copyright owner(s) to prevent anyone from broadcasting the digital recordings of your music (streaming, satellite radio, etc.).
This is the newest right, which is understandable since streaming is the newest method of distributing music, does not rely on physical sales/downloads and pays much less than AM and FM radio.
The Right To Make A Derivative Work
The right to make a derivative work means that you can use or license your work to create derivative works (samples, replays, musical arrangements, motion pictures, etc.). You can make a derivative of your work and prevent anyone from making a derivative of your work.
The Right To Display Your Work In Public
The right to display your work in public means that you can prevent anyone from displaying your work (lyrics, visual representation, etc.).
This often concerns the use of lyrics on clothing and other craftwork. The owner of the copyrighted lyrics has the right to prevent such derivatives from being produced and sold.
What Is The Purpose Of Music Copyright Law?
The purpose of copyright law is to reward and incentivize creative endeavours, including music and the arts. Securing an artist with the exclusive right to their music (for a limited time) provides an economic incentive for the artist to create and promote their music.
Copyright law is designed to advance creativity and innovation within a culture. Music is seen as innately beneficial to society, so musical works are protected.
Of course, different countries view music copyright differently. This is only a general overview of the reasoning behind copyright.
What Is Co-writing?
As the name would suggest, co-writing refers to the act of artists working co-operatively together to write songs.
A song may have many co-writers that own a portion of the compositional copyright.
Oftentimes a composition is split 50/50 into lyrics and music, though the technical copyright combines music and lyrics.
Unless otherwise noted, a compositional copyright with be split equally between all writers upon registration.
So, when co-writing with other writers or bandmates, it's important to discuss how the copyright will be split. Though the percentage of writing can be highly subjective, it's worth giving some thought to.
Some songwriting groups assign copyright percentages on a per track basis. Others agree to fixed percentages over everything, regardless of who actually wrote it.
Whatever you and your co-writers decide, it's worth writing down in a proper document to have in writing.
How Long Do Music Copyrights Last?
Copyright doesn't last forever. Confusingly, copyright durations differ from region to region. Furthermore, the duration of musical composition copyright and sound recording copyright differ, too.
Let's break it down by modern standards.
Though the rules have changed over time, most modern copyright laws are governed by the Berne Convention (which has 179 signatories).
Originally accepted in 1886, the Berne Convention introduced the concept of automatic copyright existing the moment a work is “fixed”, rather than requiring registration.
It also enforces that countries recognize copyrights held by the citizens of all other parties to the convention (known as the Berne Union).
Musical Composition Copyright Duration
As it concerns the length of copyright, the Berne Convention also states that the term for copyright protection must be the life of the author plus at least 50 years after their death.
Though many signatories maintain the minimum 50 years after death, many countries have longer durations. Some notable countries include (these are modern-day numbers):
- Mexico: Life + 100 years
- Australia: Life + 70 years
- Brazil: Life + 70 years
- Canada: Life + 70 years
- United Kingdom: Life + 70 years
- United States: Life + 70 years
- European Union members: Life + 70 years
Transferring a copyright (or a portion of a copyright) does not change its duration. In most cases, the duration remains linked to the original author's death plus X amount of time (depending on the country).
If there are multiple authors, the copyright generally lasts from the death of the last surviving author plus X years.
After the copyright expires, the musical composition enters the public domain.
Sound Recording Copyright Duration
Because sound recording doesn't necessarily have “authors,” it goes by different rules.
In most cases, the length of a sound recording copyright is a certain number of years (X) after publication, often defined as the year-end on December 31.
In many countries, the sound recording copyright duration is 70 years from publication, set to the year-end (a song published on January 1 will enjoy nearly an entire additional year, with its copyright ending on December 31 of the 70th year).
In the United States, the duration of a sound recording copyright is 95 years from publication or 120 years from creation (whichever is shorter).
In Canada, the duration of a sound recording copyright is 75 years from publication or 100 years from creation, whichever is shorter.
For members of the European Union, the duration of a sound recording copyright is 70 years from publication, and protection ends if the work is not made available within 70 years from creation.
Historical Changes To Copyright Duration
Laws change over time, which can be good or bad. In terms of understanding the history of copyright duration, I would suggest researching your own country's history of copyright law.
For example, the US constitution has its copyright clause in Article I Section 8 | Clause 8. Since then, the United States has passed notable acts such as the Copyright Act of 1909 and the Copyright Act of 1976. Depending on when songs were written and recorded, they may be subject to different copyright durations and laws.
Similarly, though the Berne Convention was adopted in 1886, not all signatories signed on immediately (and some countries are still not signed on).
The specifics of each country are beyond the scope of this article, so I advise you to find the information specific to your country if you're interested in doing so.
Public Domain And The Expiration Of Copyright
If you've been producing or composing for a while (or are interested in general trivia), you've likely heard of “public domain” songs or music. You may have even made money from public domain music!
For example, when I was working professionally as a composer, I would be tasked with producing 10 or so public domain Christmas songs for the fourth quarter of the year (for advertisements, television, and to add to the publishing company's extensive library).
These public domain songs included:
- Jungle Bells
- O Christmas Tree
- Auld Lang Syne
- Joy To The World
- Come All Ye Faithful
- Silent Night
- Many, many more
Public domain compositions are those with either expired copyrights or those written before copyright laws existed.
Public domain music can be used without permission or monetary payment because there is no copyright on the composition.
In the United States, songs enter the public domain when/if:
- Published in the United States before 1923
- Published before 1964 and not renewed before 1978
- Published without copyright notice before March 1, 1989
- Published immediately into the public domain (the creator wanted to give the song away)
Before using public domain songs, practice due diligence to ensure the entirety of the work is free to use. For example, a composition may be in the public domain, though a specific recording of the composition may be copyrighted. In my example above, I was re-working the arrangement and re-recording the public domain compositions, so we were in the clear.
That being said, even if the composition meets the criteria listed above, I would suggest double-checking to see if the song is truly in the public domain. Here are a few resources to do so:
- pdinfo.com: search engine for public domain songs
- cocatalog.loc.gov/cgi-bin: search engine for public domain songs
- copyright.gov: official website for U.S. Copyright Office
- bmi.com: BMI, a performance right organization in the United States
- ascap.com: ASCAP, a performance right organization in the United States
- sesac.com: SESEC, a performance right organization in the United States
- socan.com: SOCAN, a performance right organization in Canada
- prsformusic.com: PRS, a performance right organization in the United Kingdom
- apraamcos.com.au: APRA, a performance rights organization in Australia
Resolving Copyright Issues
Breaking copyright law is a serious issue. It's a big deal to accuse someone of stealing your work, and it's equally severe to be accused of stealing copyrighted music.
Beyond the truth of whether a song or part of a song was stolen or not, we also have vague laws and laws that differ from country to country.
Pursuing a case of copyright infringement can take a very long time (up to 10 years or even more) and cost an exorbitant amount of money. And the worst part is that, after all is said and done, you might lose!
Do your best to work things out between the involved parties before going the expensive court route.
If possible, try to reach a settlement, an agreement that ends a dispute and results in the voluntary dismissal of any related litigation.
A Note On Fair Use
Fair use is the right to copy a portion of a copyrighted work without permission because your use is for a limited purpose. The term “limited purpose” may apply to such uses as educational or parody purposes.
When it comes to fair use in music copyright, we must consider three key questions:
Did the user take a substantial amount of the copyrighted work? Longer samples and major sections of the song (such as the chorus) are more substantial than shorter samples and less noteworthy sections of the song.
Did the user transform the copyrighted material in some way? Has the song sample or replay been manipulated enough or has the user added enough originality to it?
Did the user cause significant financial harm to the copyright owner? It's not fair use if the usage of the song takes significant monetary rewards from the copyright owner.
Of course, this is vague and if you're wondering about fair use of others' material in your music, you should likely ask permission.
Sampling and parody are common practices in music, though they may or may not be covered under fair use. It's completely dependent on the specific case.
To recap, I'll restate that this is only a beginner's guitar to copyright. The legal literature on copyright law is enormous in volume and changes from region to region and period to period.
Here are the important takeaways from this article on music copyright:
- There are two copyrights for every song: the musical composition and the sound recording.
- Copyright laws vary from country to country.
- Copyright is created as soon as the song is fixed in a tangible medium.
- Registering copyright is not necessary, though advisable when significant money is involved.
- Copyright grants the owners control over the expression of an idea but never the idea itself.
- Music copyright offers 6 exclusive rights:
- The right to copy your work
- The right to distribute your work
- The right to perform your work in public
- The right to broadcast (stream) digital recordings
- The right to make a derivative work
- The right to display your work in public
- Copyright can change ownership.
- Copyright of musical composition typically lasts for a set period after the death of the author.
- Copyright of sound recording typically lasts for a set period after publication.