What is Music Copyright?

This is the first of a four-part series on issues in music copyright. Part one will provide a basic introduction to music copyright.

Musical Composition v. Sound Recording:

When you hear a song on the radio you are hearing two separate copyrights: one for the underlying musical composition and one for the sound recording. The distinction between these two is important, because even though they are both attached to one song, they are two separate works for copyright purposes and may be independently licensed or enforced. It is easier to understand this distinction if we look a little closer at what each copyright consists of:

  • A musical composition consists of music, including any accompanying words. The author of a musical composition is normally the composer of the work along with the lyricist (if the lyricist and composer are separate). A musical composition can be in the form of a notepad copy (such as sheet music) or in the form of a phonorecord (tape, CD, LP, etc.)
  • A sound recording (or master recording) results from the fixation of a series of musical, spoken, or other sounds. The author of the sound recording is typically the performer(s), the record producer, or both.

In many cases an artist will enter into a publishing agreement in which they will sign over all or part of their copyright in their compositions to a publisher in return for the administration of those compositions. As part of this administration, a publisher will seek out people who want to use the artist’s composition in their own works or performances, issue the necessary licenses, collect the money, and give the artist their agreed upon percentage. It is also common to see performers grant their copyright in their sound recordings to the record label they are recording under.

When an artist wants to release a cover song, they must get permission from the copyright holder of the musical composition. If, however, a recorded song is being used, the person using the song would potentially have to seek permission from two people: the person that has the copyright in the musical composition (usually the composer or publisher) and the person who holds the copyright in the sound recording (typically the performer, record label, or producer).

As an example, consider the popular song “Respect” made famous by Aretha Franklin. The song “Respect” was originally composed by Otis Redding and released in 1965. Two years later Aretha Franklin released her version of the song. Because Ms. Franklin was not composing a new song, but rather using Otis Redding’s composition, she needed to secure a license to use the underlying musical composition. Ms. Franklin, however, went into the studio and recorded her own version, so it was not necessary to secure a license for Mr. Redding’s sound recording.

Now consider a different situation: a film producer wants to use Ms. Franklin’s cover of “Respect” for his upcoming film. In this situation the producer would need to secure two licenses: one to use Ms. Franklin’s sound recording and another to use Mr. Redding’s musical composition. If the producer wanted to instead use Mr. Redding’s version in his film he would still need to secure two compositions: one for the musical composition and one for Mr. Redding’s sound recording.

Exclusive Rights:

Holding a copyright in a work means that you have exclusive rights to the use of that work. These exclusive rights include the rights of:

  1. Reproduction. The right of reproduction allows you to decide who may make a copy of your work, such as using it in a movie, using a sample, or publishing it as sheet music.
  2. Distribution. This right allows you to decide who may sell copies of your work.
  3. Derivative Works. This right allows you to decide who may make a new work based on your original work, such as the creation of a parody song.
  4. Public Display. This right is commonly seen in other copyrighted works such as art, but is not particularly applicable to music.
  5. Public Performance. This right controls the performance of your song on the radio, in clubs or restaurants, on television, or anywhere else where the performance would be deemed “public”.

While copyright holders for musical compositions and sound recordings enjoy the same exclusive rights in many respects, Congress imposed a limitation on the public performance rights of sound recordings through the Digital Performance Right and Sound Recording Act. Under this Act, the exclusive right of public performance exists for both the musical composition and the sound recording, but you only need to secure permission to use a sound recording if the recoding is being transmitted to the public through digital means. Depending on the nature of the digital audio transmission, that is whether it is interactive/non-interactive or subscription based, will determine the license that must be paid.

For public performance of musical compositions, licensing for public performance is usually handled through 3 main performance rights organizations (PRO): ASCAP, BMI, and SESAC. For sound recordings that are digitally transmitted, licensing may be handled by SoundExchange or with the sound recording copyright holder depending on the nature of the license needed.

This blog has provided a brief introduction to the different copyrights involved when we speak of music copyright. In the next part of our series we will discuss the duration of copyrights for both musical compositions and sound recordings.

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Maria Scheid was a legal intern at the Copyright Resources Center at OSU Libraries and is an alumna of The Ohio State University Moritz College of Law.