Music Copyright Law

I know this sounds cheesy, but when I started writing songs on my acoustic guitar at the age of eleven, the first lesson of my career as a music teacher was my little brother Evan, and I taught him one of my songs entitled “Forever.” The next day I heard my mother humming the exact same tune; I said “I that my song?” and she gives me that surprised look and said “Evan told me that he wrote it…” After that I was furious; I went to his room: “YOU DIDN’T WRITE THAT SONG! I DID! THAT’S AGAINST THE LAW!” He smiled confusedly and said “What ‘law’? Its just a song!” and my mother walks by with a smirk and calmly said “Copyright law…” That’s when this all began for me, I figure that how it began for others as well. In a world where digital downloads are a free-for-all battle, and people like my little brother take these rights and protections for granted, it is the duty of a musician, publisher or any creative artist to keep the rights that people fight so hard for and promote their reason for existence.

According to Music Copyright Basics by Joel Leach, a copyright is “the legal and exclusive right granted to an author, composer, or publisher to publish and sell a literary, musical, dramatic or artistic creation (called a work in copyright law).”[1]

Without copyright protection, any and every song would be considered “public domain.” All music would free for anyone to use or exploit and writers could not receive credit for their works. “Common law” copyright was the first system for protection adopted by state legislation in the U.S. Using ideas borrowed from the United Kingdom, American courts ruled the copyright is a limited right (not perpetual) with statutes and terms rendered by what the regional legislature saw fit.

The Copyright Act of 1976 not only spells out the basic rights of federal copyright ownership that music publishers are familiar with today, but also established the doctrine of “fair use” and a term based on the death of the author. Signed by President Gerald Ford on October 19, 1976 this act extended the protection to “original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.”[2] In Section 102 the act defines these protected original works as:

1) Literary works – books, magazines

2) Musical works  - including lyrics or words, but limited to melodies (chord

                      progressions don’t count), or printed musical literature

3) Dramatic works – plays, skits… along with accompanying music

4) Pantomimes and choreographic work – such as dancing

5) Pictorial, graphic images

6) Motion pictures and any other audiovisual works

7) Sound Recordings

(Copyright law for Architectural works was added in 1990)

The five exclusive rights granted in the “Bundle of Rights” in Section 106 include:

1)      The right to reproduce (copy)

2)      The right to sell, lease or rent copies of the work to the public

3)      The right to perform the work in public

4)      The right to display the work publicly

5)      The right to create derivative works of the original work

(The right to perform a sound recording by means of digital audio was add as an amendment in 1995)

All holders of copyright have the right to copy, sell, distribute, license, perform and broadcast their intellectual works. Copyright law is designed to protect a creator’s intellectual works from being resold, copied, packaged, broadcasted, performed, or licensed under someone else’s name without the original creator’s permission. The legal sense of copyright is based on the idea of intellectual property rights protected by legislation 75 years after the author has passed away.

Copyright Infringement is defined by Joel Leach as “A violation of the exclusive rights granted by copyright law to a copyright owner.” The second that someone documents their creative work, written or recorded, their copyright has been created. In order to keep their copyrights protected they must file with the Library of Congress and pay a standard fee (now about $45). If someone uses or performs a copyrighted song without permission, they can be subject to lawsuit and convicted of infringement. However there are exceptions to copyright law under the 1976 Copyright Act doctrine called “Fair Use.”

A fair use of a copyrighted work would include a criticism, comment, news report, educational curriculum, scholarship, research of a copyrighted work, or a parody. Music Copyright Basics states some factors which determine whether a work might be considered fair use: “(a) the purpose/character of the use (commercial, non-profit, educational); (b) the nature of the copyrighted work; (c) the amount and substantiality of portion used; (d) the effect of the use on the potential market for, or value of, the protected work.”[3]

In “All You Need To Know About The Music Business” by Donald S. Passman explains the criteria for a copyrighted work: “Tangible simply means something you can touch. If the work is a musical composition, for example, it can be written down… or just sung or played into the recorder.”[4] The U.S. copyright office does not copyright ideas, but once those ideas are fixed in a “tangible medium of expression,” they are protected.

This concept of protecting intellectual creativity has shown up as a staple of western civilization in many musical fashions; in the early Elizabethan reign in England- protecting musical work by William Byrd and Thomas Tallis or even in pre-Roman liturgical scripts. Just as the United States Constitution was implanted, Martin Kretschmer credits John Locke’s Second Treatise of Government (1690) with bringing the idea of the intellectual property package to America: “Legitimizing private ownership in the wake of the Glorious Revolution of 1688, Locke proposed that by ‘mixing’ labor with previously common goods a new ‘private dominion’ would be created. [5]

Since the first U.S. copyright law was introduced in 1790, the rights to reproduce original works have evolved several times to accommodate the several configurations and outlets to obtain music, which seem to be arriving by the busload.  The Copyright Act of 1909 rendered musical compositions protected from being mechanically reproduced without the author’s permission by any “instruments.” According to What They’ll Never Tell You About The Music Business by Peter M. Thall, the “instruments” or “devices in question were piano player rolls and eventually Edison cylinders- the first record players.”[6] Thall goes on to state that even though the devices that we might still use today such as CD’s DVD’s Cassette tapes DVD’s Mp3’s DPD formats and internet applications were not conceived during this time are still “subsumed” under an expanded copyright legislation referred to as the “bundle of rights.” The Copyright Act of 1976 was an attempt to address questions raised by the new forms of communication at the time such as television and motion pictures.

Another issue that many had with the Copyright Act of 1909 was that federal protection was only granted to works already “published” and had an “affixed” notice from the copyright office. This meant that work not published or without notice fell into public domain.  Works not and Similar to today, the U.S. government during the 1900’s was slow to bring legislative changes to a rapidly growing music industry although most state governments had come up with their own copyright statutes.

Before 1976, the complete term for a copyright was twenty-eight years with a possible twenty-eight year extension (fifty-six years), the new law set the terms of copyright from the date of publication to 50 years after the authors death.  Today, current terms last for 70 years after the author’s death, ninety five years for works made for hire.

It is also important to know that slogans, names and titles cannot be protected by copyright. Names are protected under trademark law

      According to Music and Copyright co-written by Simon Frith and Lee Marshall, “Copyright is a noun not a verb, a thing rather than an action: you cannot ‘copyright something’. However, although copyright is a thing, its existence depends on the existence of a work that is eligible for copyright.”[7] Regardless of syntax or the history behind copyright, this protection is essential for art to flourish and for authors to keep writing original works. If copyright law lost its support the artistic world would suffer.   

[1] Leach, Joel T. Music Copyright Basics. Van Nuys, CA:  Pg 4

[2] Copyright Law of the United States of America. Section 102 United States Code – Title 17 U.S. Copyright Office Washington D.C. www.copyright.gov/title17/92chap1.html#102

[3] Leach, Joel Music Copyright Basics Van Nuys: MMIII

[4] Passman, Donald S. All You Need To Know About The Music Business New York, NY: 2003.

[5] Frith, Simon. Music and Copyright. New York, NY: 2004. Pg 25

[6] Thall, Peter M. What They’ll Never Tell You About The Music Business. New York, NY: 2002. pg 188

[7] Thall, Peter M. What They’ll Never Tell You About The Music Business. New York, NY: 2002 pg 6

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