Push Pause Before You Play: The Reality of Copyrights and Music Licensing

Posted by Kaustubh Nadkarni on November 23, 2015

 Music is omnipresent in our daily lives. We wake up to music, study to music, workout to music, even fall asleep to music. We all love music. From Jay-Z’s Empire State of Mind to Beethoven’s Fifth Symphony, every genre has the mystic to flood our souls with emotions. Studies show that music can affect mood, improve creativity, increase motivation, and predict personality. As renowned philosopher, Fredrick Nietzsche once said, “Without music, life would be a mistake.” So while music can invigorate our acoustical desires, there are several lingering questions that lie at the heart of how intellectual property stifles and stimulates the creativity of music. Is music property? Who are the key players in the music industry? Who owns the song, the lyrics, the beats? Can music be shared without permission? How does one make money from music? Perhaps, the World of Copyrights and Music Licensing can provide some vital answers.

Copyright and music licensing rules can be arduous and daunting for even those fluent in intellectual property matters. For instance, the world of music licensing encompasses sound recordings and musical works. Each of these further incorporate individual copyrights, which subsequently, can represent a plurality of other exclusive rights an entity may posses. The exclusive rights further include reproduction, public performance, distribution, and synchronization of musical and visual content. Furthermore, each of the exclusive rights are regulated by Congress, but in some cases may transpire in a private marketplace without any Congressional oversight. Confused? We are just getting started…

 

Is there a difference between Musical Works and Sound Recording?

 

When it comes to copyright law and music licensing, there is a huge difference between musical composition and a sound recording. According to the United States Copyright Office:

 

“A Musical Composition consists of music, including any accompanying words, and is normally registered as a work of performing arts. The author of a musical composition is generally the composer and the lyricist, if any. A musical composition may be in the form of a notated copy (for example, sheet music) or in the form of a phonorecord (for example, cassette tape, LP, or CD).” 1

 

On the other hand, the Office notes:

 

“A Sound Recording results from the fixation of a series of musical, spoken, or other sounds. The author of a sound recording is the performer(s) whose performance is fixed, or the record producer who processes the sounds and fixes them in the final recording, or both.” 2

 

Essentially, copyright protection in a sound recording is not the same as, or a substitute for, copyright in the underlying musical work or composition.

 

Who are the key players in Music Licensing?

 

Many different entities or participants can create, own, and/or manage musical works and sound recordings in the music licensing landscape. Some of the key players may include, but are not limited to songwriters, music publishers, performing rights organizations, mechanical rights administrators, recording artists, producers, record labels, music providers, and last but not the least, consumers.

 

How has music been protected historically?

 

In order to comprehend how music can be protected via copyrights today, it is paramount to briefly review its history. Congress first passed the Federal Copyright Act in 1790. As enacted, the Act failed to provide an express protection for musical works like the Act we know in present day. Nonetheless, musical works could be federally registered as books to enjoy some protection. Then, in 1831, when the Act was amended, musical works became subject to federal copyright protection. The owners of musical works gained the exclusive right to reproduce and redistribute their compositions, namely, print and sell music sheets. Over time, as technologies within music developed, so did the protection of music under the Act. As it stands, the Copyright Act of the United States provides for “protection in musical works, including any accompanying words that are fixed in some tangible medium of expression.” 17 USC §102.

 

What are the exclusive rights under the Copyright Law?

 

The owner of copyright in a musical work has the exclusive right to copy, sell, distribute, prepare derivative works, and perform the work publicly. As such, any entity who has desires to use that musical work must obtain permission from the author or someone who has derived those rights from the author. So, while others are permitted to make subsequent sound recordings, they must compensate the copyright owner of the musical work under the compulsory licensing provision of 17 USC §115. In addition, exclusive rights vary as they relate to Musical Works versus Sound Recordings.

 

What are the exclusive rights under Musical Works?

 

The owner of a musical work has exclusive right to make and distribute copies of sheet music or CD’s or digital audio files of the work, the right to create remixes and other derivations from the original work, the right to display work publicly, the right to perform publicly in a live venue or broadcast over cable, and the right to synchronize the work in a visual content such as a music video.

 

What are the exclusive rights under Sound Recordings?

 

The owner of a sound recording has several rights including the exclusive right to make and distribute CD’s and DPD’s, the right to create new work on existing recording, and the right to perform publicly via a digital audio transmission.

 

So how does one make money in music?

 

Think Royalties. Musicians can make monies off royalties from individualized and customized licensing agreements. Some of these royalties include, but are not limited to:

 

Physical/analog songwriter royalties, mechanical royalties (royalty owed to the songwriter for each unit sold such as a CD), public performance royalties (concerts and live performances), synchronization royalties (song in a movie, commercial, television shows, and video games), print royalties (lyrics or songs printed on t-shirts or magazines), digital download royalties (songs downloaded from iTunes, Amazon), streaming mechanical royalties, where streaming is interactive and song is chosen by the user (Rhapsody, Spotify, Deezer), Non-Interactive streaming royalties in the form of public performance, where the user cannot pick songs (Pandora, Sirius Satellite Radio),  Interactive Streaming Public Performance royalties (YouTube, Deezer, online gaming), Mechanical and Public Performance Ringtone royalties (ringtones used by Telecoms on phones), and Digital Synchronization license, where song is synchronized with moving image (YouTube, Vimeo).

 

Conclusion

 

While the copyright protection of music and licensing can get complex, there is uniformity in the music industry when it comes to certain points. First, music creators should be compensated accordingly. Second, the license process should be efficient. Third, key players should have proper information to identify and license musical works and sound recordings, and fourth, royalty payments should be more transparent to its rightful holders.

 

 

1(http://www.copyright.gov/register/pa-sr.html)

2 Id.

 

Topics: copyright act, copyrights, Intellectual Property Law, licensing, music, music licensing, music royalties, musical works, sound recordings