What Musicians Should Know about Copyright
If you’re a musician, there are a few key things to know about copyright law and the protections available to you.
First, you should know that copyright protection exists from the moment an original work is “fixed” in a tangible medium. For example, fixation occurs when a song is recorded in an audio file or when a musical work is notated in sheet music or a digital file. You don’t need to do anything else at all for your work to be protected by copyright. As the owner of your work, copyright gives you the right to make and sell copies, distribute those copies, make new works, and publicly perform the work.
The Two Types of Work
When you record a song, you may be creating two works that are protected by copyright: a musical work and a sound recording. A sound recording and the music, lyrics, words, or other content included in the recording are separate copyright-protected works. These works are subject to different rules and are commonly owned and licensed separately.
- A musical work is a song’s underlying composition along with any accompanying lyrics. Musical works are usually created by a songwriter or composer.
- A sound recording is a series of musical, spoken, or other sounds fixed in a recording medium, such as a CD or digital file, called a “phonorecord.” Sound recordings are created by the performer and the producer of the recording.
Registering Your Work
Although your work is protected by copyright from the moment it is fixed, you can register your work with the U.S. Copyright Office for additional benefits, including access to federal courts in the case of infringement. Registering your work also makes a public record of your ownership. Applying for registration with the U.S. Copyright Office requires an application, a filing fee, and a copy of the work. Depending on the type of work, there are several different online application options, including:
- Standard Application for registering an individual sound recording or musical work.
- Group Registration of Unpublished Works for registering up to ten unpublished works all by the same author and the author is the claimant.
- Group Registration of Works on an Album of Music (effective March 26, 2021) for registering up to twenty musical works or sound recordings and associated material contained in an album, if the works are created by the same author or have at least one common author, and if the claimant for each work in the group is the same. In the case of an application to register sound recordings, the applicant may also register any associated literary, pictorial, and graphic works in the album, such as cover art, liner notes, and/or posters.
You can reach out to our help team for assistance determining the best option for you.
Using Someone Else’s Work
Being inspired by others’ work is intrinsic to the creative process. Musicians often use other works to create new compositions, public performances, and recordings. It’s important not to assume that you can freely use other works. Here are some important copyright principles to keep in mind.
Generally, to use the sound recordings or musical works of another artist, you must:
- Use work that is already in the public domain.
- Get permission from the copyright holder directly, or license the work according to the terms set by the licensing contract.
- Rely on a statutory limitation to the exclusive rights, such as fair use or the section 115 license for musical works.
- There’s no hard and fast minimum amount of music you can use without getting permission when you need it.
- When you plan to use someone else’s work, for example when recording a cover song, always compare all of your intended uses with the exclusive rights of copyright and make sure you are lawfully engaging in each use.
- Trying and failing to contact the rights holder is not a substitution for permission. Copyright owners often have representatives in charge of licensing their works and certain types of uses of their works. This might be, for example, a music publisher or performing rights organization.
If Your Work Is Used Unlawfully
If your work is used unlawfully, without your permission and not under a statutory limitation, it is your right to pursue legal action. However you do need to register your work with the Copyright Office before bringing an infringement lawsuit for your work in the United States. And if you want to pursue statutory damages or attorneys’ fees in that lawsuit, you have to register within a certain amount of time. In other words, you need to have your registration if, for example, you take someone to court for using your work without your permission, and you want to try to have your attorneys’ fees covered or pursue certain other types of compensation.
Generally, copyright lawsuits are decided in federal court. The Copyright Office is currently working on establishing the Copyright Claims Board, which will provide a new forum for small copyright disputes. More info on that is below.
Important Laws to Keep on Your Radar
The MMA updates the way musical works rightsholders are paid royalties when their work is played online via interactive streaming services, effective January 1, 2021. If a digital music provider has taken out a blanket statutory license, to get paid, you (or your publisher or administrator) will need to register your information with the Mechanical Licensing Collective (The MLC) via their online claiming portal. Please note, this is not a replacement for copyright registration. To ensure that you are due a royalty for non-digital uses of your musical works, such as for pressing vinyl records or CDs, you must be identified in the registration or other public records of the Copyright Office. You can read more about the MMA here.
The CASE Act allows the Copyright Office to set up the Copyright Claims Board (CCB) to resolve copyright disputes over damages totaling less than $30,000. It is intended to be a cost-effective and streamlined alternative to federal court. You can read more about the CCB here.
When you record a song, you may be creating two works that are protected by copyright: a musical work and a sound recording.
Although your work is protected by copyright from the moment it is fixed, you can register your work with the U.S. Copyright Office for additional benefits, including access to federal courts in the case of infringement.
If your work is used unlawfully, without your permission and not under a statutory limitation, it is your right to pursue legal action.
More Resources for Musicians
Ready to learn more? Check out these resources to get started!
- Sampling, Interpolations, Beat Stores and More: An Introduction for Musicians Using Preexisting Music: https://www.copyright.gov/music-modernization/educational-materials/Sampling-Interpolations-Beat-Stores-and-More-An-Introduction-for-Musicians-Using-Preexisting.pdf
- How Songwriters, and Composers Get Paid: https://www.copyright.gov/music-modernization/educational-materials/musicians-income.pdf
- An intro to copyright for all creators and users: https://copyright.gov/engage/
- Educational materials about the Music Modernization Act: https://www.copyright.gov/music-modernization/educational-materials/
- An overview of the registration process for sound recordings and musical works: https://copyright.gov/circs/circ56a.pdf