GrindEFX

Welcome to the first installment of GrindEFX’s introduction to some of the most important, and most confusing, concepts in the music business. These are concepts that serve as required knowledge for anyone wishing to take their music beyond the hobby level. They are also concepts that serve as a constant source of frustration and consternation to those same musicians.

Most, if not all, of this information can already be found on the internet. However, a lot of it is not targeted to musicians – it may be good information, but too complex or irrelevant to musician’s concerns. A lot of it might also provide a good explanation of the concepts but not explain the practical application of the concepts to the music business. And finally, there is plenty of bad or outdated information out there; a new musician may not be able to tell the difference between the good and the bad.

So we at GrindEFX are bringing you, the independent musician, this series that lays out the concepts in an easy to understand and relevant fashion. Standard disclaimer: I am not a lawyer, and nothing in these posts should be constituted as legal advice. It is only provided for informational purposes. If you have questions about a specific situation you are in, you should contact an entertainment lawyer.

Let’s begin.

Copyright

One way to look at the business of music is that everything starts with the copyright. But what is copyright, and how does it work?

A quick note, I will be discussing copyright primarily from a United States perspective. Most of what I am saying is similar in other countries, though not all of it. I will try to make note when that is not the case.

Copyright can be thought quite simply as a form of property. Legal types call it “intellectual property” to distinguish it from other forms of property – houses, land, personal possessions. Those other types of property are tangible – you can see and touch them. Intellectual property acts in many ways like these forms of property, but it covers things you can’t see or touch – intangibles.

Actually defining property is beyond the scope of this post; you can literally write pages and pages on the subject. To keep it simple, we will define the property of copyright by what intangibles it covers, and what rights are given to the “owner” of those intangibles (and if you haven’t guessed by the quotation marks, we’ll then spend time defining who exactly is the owner.)

What Copyright Covers

Copyright protects the expression of ideas. That’s the cute, but not very useful definition, though it does signify the fact that copyright does not protect ideas alone. Good thing too, otherwise Hollywood would have run out of movies it could make a long time ago! No, copyright only protects the “expression” of those ideas, whether written in a book, painted on canvas, or for our purposes, recorded. The US, and most other countries, also add the requirement that this expression must be “fixed.” So, if you think of a melody in your head, and can hum it whenever asked, that melody is not protected by copyright. It is an expression of your idea, but it is not in a fixed form until you write the melody onto sheet music or hum it into a recording device.

The other requirement for copyright protection is that the expression has to be “original.” That’s original in the sense that you didn’t copy it from someone else, not that it’s unique. Copyright protection has no requirements for how “good” the expression is, or how novel or creative it is – it just has to be an original expression of an idea in a fixed form.

Getting a Copyright

Getting a copyright is easy in the US and any other country that is a member nation of the Berne Convention (nearly every country on the planet). Once your original expression is in fixed form, BOOM! Copyright. That’s all there is to it. So once you put pencil to paper you got your copyright, or once you hit save on your DAW, you got your copyright.

That really is all there is to it. A lot of confusion, especially in the US, comes from the copyright registration, which I will discuss in more detail in a future post. For now, just know that copyright registration can provide certain legal benefits, but it is not necessary or required to get copyright protection.

What You Get With a Copyright

Remember when I said the property of copyright can be defined by what rights it grants the owner? Well, let’s look at those rights:

In the US, a copyright owner has the exclusive (she is the only one who has these rights unless she agrees to sell, transfer, license, or give them away) rights to:

• Make copies of the work

• Make derivative works based on the work (translations, remixes, etc)

• Distribute the work to the public

• Publicly perform the work (a big one for musicians)

• Publicly display the work (more for painters and sculptors)

Note: The rights associated with a copyright for “sound recordings” differ slightly from these – we’ll get into that more when I discuss “sound recordings.”

Another note: Many countries outside the US recognize certain “moral rights” for the creators of a copyrighted work. These may include the right to attribution (you have to be credited anytime someone exercises one of the above rights) or the right to the integrity of the work (no one can distort, mutilate, or otherwise ‘ruin’ your work).

I’ll get into licensing in a future post as well, but for now I wanted to mention that licensing is the tool used by copyright owners to allow other people to exploit (in the good sense of the word, ie, make money off of) any one, or any combination, of those above rights. Again, whatever form the license takes, it will stem from one, more than one, or all of those specific rights.

How Long Do You Get Your Copyright

Copyright is not forever, but it will feel that way for you. In the US, copyright begins when you create the work and lasts until you die, plus an additional 70 years after that (typically inherited by your heirs, and inherited by their heirs if they don’t live that long, and so on). Again, in many other countries, the time-frame is the same, though at the end of this post, I will list several links where you can find out the exact time period for the particular country you may be in.

Once the time-period of copyright is over, the work goes into the public domain. The owner of the copyright (the heirs of the creator) no longer has any of the above exclusive rights. Anyone is free to distribute, copy, publicly perform, etc. the work.

Music is so (P)(C)

Ok, now hopefully you know what a copyright is. You know what it covers, how to get it, what it protects, and how long it lasts. Now comes the tricky part. Don’t worry if you don’t get this part right away, I’ve seen fellow law students pulling their hair out trying to understand this! But pay attention: this is an extremely important part of understanding the music business, and I will be referring back many times to this discussion in future posts.

When we’re talking about MUSIC, we’re talking about two possible copyrights at play. You get a copyright on the “music,” and you can also get a copyright on the “sound recording.”

Think of “music” as traditional sheet music: a piece of paper with the notes of the song on a staff and the lyrics written down (if there are any). The “sound recording” is when a band puts that sheet music in front of them and records it onto tape, or DAT, or a computer hard drive. The music and the sound recording are two entirely separate copyrights. So you can say a sound recording will always consist of two separate copyrights since it has its own copyright and there is always an underlying musical composition with its own copyright. The musical composition, on the other hand, consists solely of one copyright until someone records it and makes another copyright.

Confused? Let’s look at it this way. Beethoven has long been dead; any of his music is clearly in the public domain. You can perform it in public, make copies of it, whatever you want with it. You can even record yourself playing Beethoven AND get a copyright on that sound recording. Someone else can do any of those things with Beethoven’s music as well. What they CAN’T do is distribute or copy (or whatever) YOUR recorded version of you playing Beethoven.

Another example. Say you have a CD with an awesome song that you want to put in your movie. You potentially have to deal with two copyright owners. First, you need a license from the copyright owner of the song itself, then you need a license from the copyright owner of the sound recording of the song. Maybe you get permission from the songwriter, but not the recording artist. No problem! You can then get permission from the songwriter to make your OWN sound recording of the song (I’m leaving out the issue of compulsory licenses now for simplicity’s sake, I’ll get to them in a future post). Now you have permission from the songwriter, and since you’re the owner of the sound recording copyright, you can use the track in your movie. Yeah, weird, but the owner of the other sound recording copyright doesn’t have the right to stop other people from making their own sound recordings of the exact same music they used.

Sound recording copyrights are sometimes called the red-headed stepchild of copyrightable subject matter, and not only for that reason. I mentioned earlier that the rights a copyright owner of a sound recording differ slightly from the rights of other copyright owners. At least in the US, the copyright owner of a sound recording does NOT have the exclusive right to publicly perform the work (at least not yet). That is why radio stations pay royalties to songwriters whenever they play a song but not to the recording artists.

You might be asking yourself right now, what if the person who wrote the music is the same as the person who made the sound recording? Or, do I really have “music” if I created a song in a program like Reason and hit save? I created a sound recording at the same time! Yup. If the same person wrote the song and recorded it, they still own two copyrights. And even if you wrote the song while they were recording it, which is what happens when you use a DAW to create music, you still have created two separate works with two separate copyrights.

Confusing? Yes. Important in the music biz? Heck yeah.

More Resources

• US Copyright Office – chock full of materials, pdfs, forms, and other information explaining US copyright
• WIPO – CLEA – This site provides full-text documents of copyright laws (among other things) for over 180 countries around the world.

Other countries:

• Australia (Not a government site, but provides comprehensive information on Australian law and practices)
• Canada
• United Kingdom

Image courtesy of n3wjack