6 Basics of Music Copyright Law: What It Protects and How to Copyright a Song

 


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Behind every royalty, every streaming payout, and every sync license, there’s a copyright and a copyright owner. If you ever want to earn money on musical composition or sound recording, and if you’re going to protect that right and ensure that people aren’t stealing your work, you need to know your copyright protections. 

But the music copyright landscape is notoriously complicated. There are different copyrights for different parts of a musical work, with copyright ownership and royalties split between artists, songwriters, labels, and publishers (the specific nature of those splits is a subject of negotiation). Then, there is various middleman, from collection agencies to distributors, that facilitate the collection of royalties on behalf of rights holders.

In this article we’ve untangled this web to give you a straightforward explanation of how copyrights work, what protections they confer, and how to copyright your music. 

But first, let’s start with the basics: 

Music copyright designates legal ownership of a musical composition or sound recording. This ownership includes exclusive rights to redistribute and reproduce the work, as well as licensing rights that enable the copyright holder to earn royalties.

When you hear a song play on the radio, you might think that there’s only one copyright for that song, owned by the artist whose voice you hear. But, in fact, that is not the case. In fact, in some parts of the world, it might be that the recording artist hasn’t earned a single cent on that radio spin.

The reason is that each piece of recorded music that has two sets of copyrights: one for the musical composition, and one for the actual sound recording. 

Composition

The compositional copyright covers an underlying musical composition: the arrangement of notes, melodies, and chords in a specific order. It is held by songwriters, lyricists, and composers, and managed by their music publishers (who also partially own the copyright).

Master Recording

The master copyright covers the specific sound recording, or “master recording,” that contains a particular expression of the underlying musical composition created by performing or recording artists. This copyright is held by the performing artists and, typically, their label. 

Now, sometimes, the songwriter and the artists might be the same person — if we’re talking about a band that both writes and records their own music. However, even in that case, the music industry will treat the songwriter and the recording artists as two separate entities. Besides, it’s never that simple — think cover versions, samples, quoted lyrics, external producers, assisting lyricists, and so on. The structure of the music copyright behind the given song can get complicated — and quick. 

When are copyrights created?

The simple answer is: copyright protection begins when music is fixed in a tangible form… However, depending on the type of music copyright, that can mean very different things. 

For compositions, the copyright is automatically created when music or lyrics are recorded, put on paper, or otherwise written down in a document — even if it’s a simple tweet or a crumpled napkin. 

For master recordings, on the other hand, according to the US Copyright Office, the copyright is created as soon as “a sound recording is fixed, meaning that the sounds must be captured in a medium from which they can be perceived, reproduced, or otherwise communicated”. This may be “in a digital track, disk, tape, or other formats”.

However, while the initial copyright is created as soon as the musical work is fixed, you may need to take extra steps to ensure that the copyright is actually enforced. This depends on where you live: in Europe, no additional registration of the copyright is needed to enforce copyright protections, but in the US, you’ll need to register the copyright with the Copyright Office to get full copyright protections. 

Royalties are generated when these exclusive rights are licensed over to other parties, so these rights are what allow music professionals to make money (and also how they protect their original work):

1. Reproduce the copyrighted work

The first right held by copyright owners is to reproduce the copyrighted work via printing CDs or vinyl, and make the work publicly available via streaming services. Technically, every time a listener presses play on a specific song on a streaming service, they are triggering a reproduction of the sound recording (aka the master) AND the underlying musical work (the composition). 

So, streaming services must have licenses from copyright owners to reproduce any songs in their catalog. Master copyright owners receive compensation via streaming payouts, while composition owners receive mechanical royalties. 

2. Prepare derivative works based upon the copyrighted work

Only the copyright holder of the musical composition can legally create a derivative version of that work (or permit others to do so). A derivative work is any musical work that includes major copyrightable components of previous, original work.

If a third party wants to create a derivative work of a composition or master recording, they will require either a synchronization license (on the composition side) or a master use license (on the master side). Most commonly, derivative works are audio-visual combinations that incorporate songs as part of a larger work: advertisements, TV shows, movies, and video games, to name a few. 

But derivative musical works (think remixes or cover versions) are a bit more complicated: for the work to be considered derivative, it needs to incorporate some aspect of the underlying work to create a new, separate copyrighted work. So, for example, remixes and samples of a song require both master use and sync licenses (since they use the underlying master and composition to create new copyrighted works). 

Generally, sync and master use licenses are negotiated one-on-one between the copyright holders and the licensing parties (or their respective representatives). 

3. Distribute copies of the copyrighted work to the public

Just as copyright protects the author’s right to create new copies of the composition or recording, it also gives copyright holders (or authorized parties) the right to sell these created copies to the public. 

In the modern age, the right to distribute the sound recording is covered by streaming payouts. At the same time, the distribution of compositions occurs only if the composition itself is distributed and sold (e.g., sheet music sales).

4. Perform the work publicly 

The copyright provides the author an exclusive right to perform the work publicly. That doesn’t mean that a living person has to “perform” it — any kind of an audio broadcast in a public space will qualify. Live shows, performances, music playing in public spaces like bars or clubs, radio/TV broadcasts, and even audio-streaming on Spotify are all considered public performances. Performance rights are one of the biggest sources of revenue for songwriters and publishers, though whether or not recording artists receive performance royalties depends on the country.

In most of the world, performance rights exist for both the composition owners and master copyright holders (the performance rights for recording artists are also known as “neighbouring rights” or “related rights”). The neighbouring rights are eligible for all performances in signatory countries of Rome Convention of 1961, if the recording artist is a resident of one of those countries.

The US, however, is not one of them, which has two implications. First, the public performances in the US don’t generate royalties for master owners. Second, the recording created by US residents doesn’t generate neighbouring royalties — even if they are played on the radio in the UK. 

5. Perform the copyrighted work publicly by means of a digital audio transmission 

This right, known as “digital performance rights,” is specific to the US and few other countries, and is designed to counterweight the lack of neighbouring rights when it comes to digital radio.

Basically, digital performance rights function like neighboring rights in the US, but they ONLY apply to digital services like Pandora and SiriusXM or webcasts — not to traditional radio (or any other type of public performance). This means that recording artists in the US will only earn performance royalties when their music is played on digital radio. 

6. Display the work publicly

Another less used right conferred by copyright ownership is the right to display the work publicly. That right is more applicable to works of visual art or literature — in music, it accounts for a minuscule part of the actual royalties generated. First of all, the “print rights” don’t apply to sound recordings, which can’t really be “displayed”. However, it can be relevant if, for instance, a label wants to print out a song’s lyrics (i.e., a part of a composition) on a CD, or when a music streaming service wants to display lyrics to its users. In this scenario, a print license must be acquired (which is typically inexpensive).

Basically, every type of royalty in the music industry — whether it’s on composition or master side of things — can be traced back to one of the exclusive rights listed above. Public performance royalties are compensating composition owners for right #4, the mechanical royalties are generated by right #1, sync licensing and master use fees compensate both sides for the #2, and so on. Whenever an artist gets paid, copyright is operating behind the scenes to make that happen. 

Now that you understand the protections that come with music copyright, the question is: how does copyright law work? We lay out the basic rules of music copyright law below. 

1. Copyrighted work must be original 

The bedrock of music copyright is that it’s a unique result of the author’s creative process: it doesn’t have to be novel or revolutionary — the Copyright Office isn’t going to be your critic — but it has to be original. 

So, what determines originality? When push comes to shove, this is determined in a court of law. Claiming that the underlying work isn’t original and thus is not protected by copyright is the most common defense in music copyright infringement lawsuits. If multiple works are borrowing from the same source (let’s say both use the same idiom in the lyrics), the copyright owners of one can’t claim the infringement by the second and vice versa.

Now, as we’ve discussed earlier, the copyright owner holds several exclusive rights — and so anyone who violates those rights is considered a copyright infringer. If a copyright infringement is proven in the court of law, the offender will have to compensate the owner — in most cases, by paying a LOT of money.  

However, copyright infringement must be established first. That means proving that:

  1. The copyrighted work has been copied 
  2. The copy is “sustainably similar” to the original work

The second point is usually examined through a mix of quantitative and qualitative analysis, which means that the court will have to bring external experts to establish the amount and the extent to which the work has been copied — and if it makes the work similar enough to the source. The extent is usually more important than the amount — the court can rule copyright infringement for samples that are less than 2 seconds long, given that the “character” of the original composition has been copied. 

Proving that the copyrighted work has been copied is a bit more interesting. First of all, copyright infringement doesn’t have to be intentional. Let’s say you’ve used a sample from a pack you found on the internet, which stated that all the samples were licensed under creative commons, and thus free to use. However, if it turns out that the sample that you used was, in fact, a part of a copyrighted work, you will still be liable for copyright infringement — even though you had no intent to do so. 

However, the court has to also establish that the potential infringer had access, or, in other words, the ability to see or obtain the copyrighted material. On paper, two different people can come up with the exact same material, independently. So, if neither of them had access to the other’s work — let’s say it was stored in a bunker and never published — they will both end up owning legitimate copyrights, even if the work they’ve created is 100% identical. That is, of course, a completely unrealistic scenario — but in the eyes of copyright law, it is, in fact, possible. 

But be mindful — the concept of access doesn’t mean that the prosecution has to prove that the infringer has actually accessed the copywriter material. Instead, it has to establish that the infringer had an ability to do so — if, for example, the work has been hosted on an open platform like YouTube. 

3. Master recording copyrights are administered (and, often, owned) by record labels

Depending on the type of recording deal in place, the label is either a primary owner or just a party, acquiring the rights to exploit the master copyright on behalf of the artists (and retaining a portion of the revenue). As a general rule, the record label that footed the bill for the recording will handle the copyrights and royalties on a work.

A classic “artist deal” works like this: the label signs the artists before the recording is produced (recording) and pays for the recording process, thus becoming the primary owner of the master copyright. The label then shares a portion of the revenue with the artist, as dictated by the recording contract. 

Lately, however, a new kind of “licensing” deal that empowers the artist is becoming more and more popular. In these deals, the artists create a recording by themselves (thus obtaining the master copyright) and then licenses that existing recording to the label for a fixed period of time. Thus, the artist retains the master rights as well as the ultimate control over their music. 

4. Compositional copyrights are administered by publishers

In the same way that master copyrights are typically managed by labels, the compositional copyright is usually administered by publishers. 

However, compositional copyrights work differently from masters. First and foremost, there’s a share of copyright that is always reserved to the author (or authors) of the composition, known as a writer’s share. Usually, it’s 50% of the copyright — though this can differ depending on the country or even a type of royalty. 

The other 50% of the copyright is allotted to the publisher, though a portion of this share goes to the songwriter as well. It works like this: when a songwriter signs a publishing deal, they transfer a percentage of their publisher’s share to the publisher in exchange for their services. That split can fall from 10 to 100% of the publisher’s share and either, with the rights duration ranging from entire copyright duration to a couple of years. It all depends on the type of publishing deal. 

5. Copyrights last 70 years past the owners lifetime

Typically, copyright protections last for 70 years after the end of the calendar year in which the last surviving writer dies. In some cases, this period can be as long as 95 years from publication or 120 years from creation. After this, it becomes public domain.

6. Cover versions require only a mechanical license — and only in the US

Covers don’t require sync or master use licenses, but in some countries, you’ll have to clear a mechanical license if you want to release them commercially.

Simple covers are NOT derivative works — they don’t borrow any components of the master recording (thus, no master use license needed), and they copy the composition in its entirety (which is covered by mechanical license instead of a sync license). 

No further licenses are required — and if you just plan to perform covers as a part of the live show, you don’t need any permits

While copyright is automatically created when a work is fixed in a tangible form, that’s not the same as the copyright actually being registered. And if you want full copyright protections, then registering your copyright is a must (at least in the US). 

The first benefit of registering your copyright is that it’s now in the public record. You may have heard of the “poor man’s copyright,” where you mail a dated version of the copyrighted work to yourself to “prove” it’s your creation, but, tough luck: that won’t hold up in a court of law, the work must actually be registered with the US Copyright Office. 

The other, related benefit is that once your copyright is registered and in the public record, you can sue for copyright infringement. In other words, to actually enforce the rights conferred by music copyright, it must be registered. 

If you’re a little overwhelmed with the complexity of music copyright law, here’s the good news: registering musical copyright is actually quite simple. Here’s how you do it in 4 steps. 

1. Make sure the song is fixed in a tangible form

If the song is just in your head, then you can’t copyright it: it has to be written down or recorded in some form that can be sent into the US Copyright Office. 

There are two different forms for compositional copyrights and master copyrights: 

  • For a composition, use the form PA
  • For a sound recording, use the form SR

3. Pay the filing fee

Submitting an online application costs $35, while a physical application costs $65. 

4. Submit copies of the work

For musical compositions, this will be a copy of sheet music. For audio recordings, it will typically be an audio file or a physical copy of the sound recording like a CD.

4 ways to maximize your rights

How you earn the most royalties will depend on which side of the copyright you’re trying to maximize: composition or master recording. For master recordings, it’s pretty straightforward: put your music out on streaming platforms through a distributor and grow your music sales (via streams). The composition copyright, however, is a bit more tricky:

As we said in the benefits section, to enforce copyright protections or sue for copyright infringement, the copyright must be registered with the US Copyright Office (or your country’s equivalent). This is true for both master and compositional copyrights

2. File for a license with Harry Fox Agency

The Harry Fox Agency (HFA) is the only mechanical royalties collection society, so if you want to earn mechanicals you need to be a member. 

3. Join a PRO (as a songwriter)

Public performance royalties are administered by collection societies as well, called PROs (Performance Rights Organizations). In the US, you can choose between BMI, ASCAP, or SESAC (which is invitation-only). Joining a PRO ensures that you’ll receive royalties any time your music is performed publicly — that is, the writer’s share of the copyright.  

4. Publish your works

Earning the full compositional royalties that you’re owed requires publishing your music since 50% of the royalties for any composition go to the publisher. But that doesn’t mean you have to be signed with a publisher: you can also register a publishing micro-company of your own and self-publish (in this scenario, you would register with a PRO as both the publisher AND songwriter).

The advantage of self-publishing is that you’ll get 100% of the compositional royalties, but there are advantages to getting real publishing representation as well. Royalties tend to get lost in the PRO system, and music publishers have the administrative capabilities and technology to track royalties throughout the pipeline and ensure that all possible royalties are claimed. They can also help with representing your work and promotion of your compositions. 

Check out our full guide to music publishing here. 

Conclusion

So, while the world of musical copyrights is quite complex, copyrighting a musical work and earning royalties on that work isn’t so tricky — at least mechanically. It’s just a matter of registering your copyright and joining the necessary collection agencies and picking a distributor. And remember: registering your copyright doesn’t just protect your royalties, it protects you from theft as well. 

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