Copyright for Musicians: An Introduction

“Copyright” gives creative people the legal rights to control how their works are copied.  For musical works, there are two kinds of copyrights: one for musical compositions, and another for sound recordings.

For composers, copyright means controlling how your musical composition is performed or recorded.  How much control you have depends upon whether you have made sound recordings (CD’s or digital files) of your music and distributed those recordings to the public (or you have allowed someone else to do so).

Once authorized sound recordings of your music have been distributed, U.S. Copyright law allows other people to make their own recordings of your musical composition.  (This means they can assemble their own musicians (or create their own digital music) and make their own recording based on your composition.  It does NOT mean they can copy and distribute your sound recording.)  They can do this even without your permission, but they have to pay you for it.  This is called a “compulsory license.”  The compulsory license fee is set by the Copyright Royalty Board.  As of this writing, the current fee is 9.1 cents per each copy of the sound recording that is sold, or 1.75 cents per minute of playing time (rounded up to the next full minute), whichever is more.  You can view the updated license fees here .

Compulsory licenses only work for purely audio recordings.  Compulsory licenses do not cover use of your music in a dramatic work (for example, a play, movie, or TV show), or a multi-media work (for example, a music video, a computer game, or on a website).  If someone wants to use your music in those kinds of works, she needs your permission.  This is called a “synchronization license.”  As the copyright owner, you can say yes or no to a synchronization request, and you can set your own fee.  If someone uses your music in one of these ways without permission, that’s called copyright infringement, and it is illegal.  You are entitled to stop the infringement, and to get paid for the use.

Once you publish your composition, people may also want to play it.  Under copyright law, they are allowed to play the music privately.  But if they want to play it in live public performances, they must have your permission to do so.  There are some exceptions for certain circumstances, such as performances in educational classrooms, or by nonprofits if no-one is paid for the performance and no fees are collected from the audience.  But these are very limited circumstances which usually don’t apply.

There is also an exception for music by composers who have signed up with a music licensing agency, for example, ASCAP, BMI, SESAC or the Harry Fox Agency.  Those agencies have blanket licenses with performing venues which allow bands to play covers of their members’ music.  The venues pay a licensing fee to the agency, and the agency in turn distributes license fees to its members.  If someone performs your composition in public without your permission, and none of these exceptions apply, that will also be copyright infringement.

For performers, there is a separate copyright that covers sound recordings.  The copyright owner for the sound recording can be different than for the musical composition.  For example, if the Kronos Quartet records your piece, the Quartet will own the sound recording copyright, but you will own the composition copyright.  If you make sound recordings of your own music, then you will own two separate copyrights – one for the composition and another one for the recording.

When sound recordings are made commercially, the sound recording copyright may be shared by all the musicians, technicians and producers who created the recording together.  Or the record company will own the sound recording copyright under the contract with those people.  (The record company contract will also set how the people are paid.  Musicians are typically paid an advance that is recouped from royalties on sales.)

Once authorized copies of a sound recording have been distributed to the public, then anyone who obtains a legal copy of the recording can play it privately.  Radio stations and places like restaurants and retail stores can also broadcast the recordings, but they have to pay public performance licensing fees to both the composition and sound recording copyright owners.  Other services, like iTunes, also make licensing deals with the copyright owners (or their agents).  If someone wants to use the sound recording in a multi-media work, such as a movie or video games, she also has to negotiate performing and synchronization licenses from both the composition and sound recording copyright owners (or their agents).  ASCAP, BMI, SESAC, and the Harry Fox Agency are some of the agencies which manage these licenses and collect such fees for copyright owners.

If sound recordings are copied or distributed without such permission, for example, digitally downloading a copy of someone’s MP3 through an unauthorized file-sharing network, that is another form of copyright infringement.  Sampling from someone else’s sound recording without permission is also copyright infringement, even if the sampler uses it to make a different composition.  It is also copyright infringement to create an unauthorized sound recording, for example, making a bootleg recording of a live concert.

Read on to Copyrights: Part 2!

Copyright for Musicians: Part 2

Under the U.S. copyright system, you need to get a copyright registration to make sure your copyright is protected.  Copyright registration creates a public record of your copyright ownership and your contact information.  This is important, because it ensures that someone who needs to pay you a compulsory license, or ask your permission to use your musical composition or sound recording, can find you.

Also, if someone infringes your copyright, you aren’t allowed to sue him in court unless you have a copyright registration.  Even if you can’t afford a court case, it is important to be able to say to an infringer that you already have a registration.  This tells them that you have the legal ability to enforce your rights, and that makes him take you seriously.  In most cases, it is the possibility of a lawsuit, rather than actual litigation, that gives you bargaining power.  (Most infringement matters settle without a lawsuit.  Even if a suit is filed, 90% of them settle before trial.)

It is also important to register your copyright as soon as possible.  You must have filed for copyright registration before the infringement occurs, or within 3 months after your composition or sound recording was distributed to the public, in order to have the full scope of copyright protection.  Full protection for such early registration gives you the right to two important remedies: the right to recover your attorneys’ fees when you win a lawsuit, and the right to an award of statutory damages.  Statutory damages means that the court can determine an amount of money to be awarded even if you cannot prove actual damages or the infringer’s profits.  Actual damages means you lost a specific amount of money because of the infringement.  Infringer’s profits means the amount of money the infringer made from selling or distributing your work.  These types of damages can be hard to prove.

When people receive a letter stating an infringement claim, their first step is to determine whether you have the full protection of a copyright registration.  If you do, they know that you are entitled to sue them for statutory damages and your attorneys’ fees.  This means that you may be able to get an attorney to take your case, and that they are more likely to be liable for a sizable sum.  So when you tell them to stop the infringement, or pay you a settlement fee, you are more likely to get their cooperation.

Under the old copyright law, a copyright notice was required to protect a work once it was published.  This is no longer true.  However, including a copyright notice on your work is a very good idea.  Copyright notice lets others know that your work is copyrighted, and it prevents an infringer from arguing that he believed the work was in the public domain (“public domain” means not protected by copyright).  Many people think that anything posted online is in the public domain, but that is not correct.

Copyright notice may also be the best way to discourage unauthorized copying in the first place.  Nevertheless, copyright notice does not give you the right to sue for infringement, or much bargaining power to stop infringement.  You still need a registration to enforce your rights.

The standard form for a copyright notice is “ © 2008 [your name].  All Rights Reserved.”

Read on to find out How to Register: A Step-by-Step Tutorial >

How to register your copyright

Its easy to register your copyright(s) in your music!

You can even register copyrights in more than one work together on one form, for one fee (fees are charged per registration, rather than per work).  And you can register both types of copyright (musical composition copyright and sound recording copyright) for the same work on the same form.  But first, you need to figure out if the music you want to register is “published” or “unpublished.”

1.    Decide if your music is “published.”

This is the tricky part.  “Published” has special meanings in copyright law.  It doesn’t mean having a traditional publisher publish your sheet music.  Rather, it means making copies of your music available to the public.  The “copies” can be in any form, for example, sheet music you print yourself, sound recordings, or videotapes of a performance of your music.  Making the copies available to the public can mean sales or distribution through any venue, including retail stores or online.  It can also mean sending sheet music or recordings to several agents or potential publishers or record companies.

On the other hand, sending your music to only one or two agents won’t mean publication.  Merely passing out your sheet music to fellow students is not a publication.  Playing your music in a live performance also does not count as publication.

Posting your music online (in any form – sheet music or sound/video recordings) is a gray area.  The Copyright Office has decided not to decide whether online posting is a publication, and so far the courts have not decided either.  So if you don’t state on your posting that you are giving your viewers permission to copy or download the music, you can decide that you have not “published” your work.

The advantage of having “published” works is that you get the three-month retroactive grace period with your registration.  For example, suppose you posted your composition, My Song, online on January 1, but you didn’t file your copyright registration until February 15.  In the meantime, on February 1, someone has already copied My Song and is using it on their own website.  If you registered My Song as a published work, you will get the bargaining power of having the full benefits of early registration (statutory damages and attorneys’ fees) retroactively against the February 1 infringement.  If you registered it as an unpublished work, you don’t get those extra remedies, because the date of your registration is after the date of the infringement.

The disadvantage of having published works is that you cannot register them together unless they were “published” on the same day.  So if you have several compositions that have been posted on different days, you can’t register them together if you call them published works.  You would have to register each one separately for a separate fee.  Instead, you may want to register them together as one collection of unpublished works, for one fee.

IMPORTANT: if you have a collection of both published and unpublished works, you cannot register them together on the same form.  Separate the unpublished works and fill out one form for them.  For your published works, each one has to be registered on a separate form, unless a group of them were published together as a unit (e.g., on one recording).  In that case, you can register them as a published collection on one form for one fee.

2.    Fill out the form.

Go to www.copyright.gov, click on “Forms” and find the links for Form CO and Form CO Instructions.  (Note: the Copyright Office has also just launched a fully online registration system.  However, as of this writing that process is still pretty glitchy.  So this article will walk you through the alternate procedure for the form that you fill-out online, but then print and send by mail to the Copyright Office.)  You should follow the instructions, but some of them are not very clear.  Here’s some additional tips:

NOTE: these instructions are for individuals who have created their compositions or sound recordings on their own.  (There are different rules if you created works as an employee or with other people, and those are not covered here.  See the Form CO Instructions for guidance for those situations.)

1 Work Being Registered

1a: Check Performing arts work (“performing arts” includes the concept of a musical composition) even if you are registering both your musical composition and a sound recording.

1b: Enter one title.  If you are registering one piece, enter its title.  Don’t use quotation marks.  For example, put My Song, not “My Song.”

If you are registering a collection of compositions, put the collection title.  (If you don’t have a collection title, decide on one now.  It can be something simple like 2008 Sonatas).  To add the individual titles of each piece in the collection, click the “additional title” button (you can do this up to 50 titles).

1c. Skip.

1d. Skip, unless your work is also known by another title.

1e. Put the year that you finished the piece, or for a collection, the year that you finished the last piece in the collection.  If you are registering both a composition and a sound recording of that composition, put the year the sound recording was completed.

1f. If your work (or collection) has been “published” under the special definitions discussed above, then put the month, date and year that the first copy was distributed.  If you expect to distribute copies, but have not yet done so, leave this blank.  You can’t declare a future publication date.  Also make sure the publication date is the same or later than the date you put in 1e (by definition, you can’t publish a work before you created it, but you’d be surprised how many people make this mistake).

1g. Skip.

1h. For unpublished works, Skip.  For published works, check United States, unless copies of your work were first distributed in another country (then check Other).

1i. This is relevant if your work was included in a published compilation with works by other people - for example, if your composition was in a book of sheet music, or your sound recording was on a CD with songs by other composers.  In that case, put the name of the publication or CD.

1j. If you filled out 1i, put the publication volume, number and issue, if applicable (leave blank if no volume, number or issue exists).

1k. Skip.

2 Author Information (the term “author” includes composer and musician)

2a. Put your name.  This can be your real name, or a pseudonym that you use for your music.  Or you can put Anonymous in the First Name field.  However, that will make it harder for people to find you as the copyright owner.

2b. Skip.

2c. If you have a dba (“doing business as”) name, put that here.  A dba is a business name you’ve adopted for yourself, but that hasn’t’ been formailized into a legal business entity.  For example, if you have a website called “Mike’s Music,” that would be a dba.

2d. OPTIONAL.  You can put your birthdate, but you don’t have to.  The Copyright Office explains that this information helps people distinguish between different people with the same name.  But information on these forms becomes public record.  You may not want to reveal that you are a minor.

2e. Skip (obviously, you’re not dead).

2f. Check the appropriate box after Citizenship OR Domicile (not both).

2g. Check Pseudonymous if you put a pseudonym for your name in 2a.  Check Anonymous if you put that in 2a.  Don’t check Made for hire.

2h. For musical compositions, check Music and Lyrics, if appropriate.  If you are also registering a sound recording of your composition(s), check Sound recording/performance.

3 Copyright Claimant Information

3a. Put your name, the same way as in 2a.

3b. Skip.

3c. If you filled out 2c, put the same dba here.

3d. Fill in your postal address.  This will be part of the public record.  If you prefer, you can use a P.O. Box.  You can choose whether or not to fill in your phone number and email.  these will not be public, they are in case the Copyright Office needs to get in touch with you.

3e. Skip.

4 Limitation of Copyright Claim

This section is relevant only if you’ve used an earlier work in the music you are registering now.  The earlier work can be by someone else, in which case you should identify it (also make sure you have permission to use it, unless it is an old work no longer protected by copyright.  Generally, anything created before 1923 is safe).

If your work is based on your own earlier music, you don’t need to fill out Section 4 unless you already “published” or registered that earlier work.  This is important, because if you identify an earlier work in this section, that earlier work is excluded from the copyright protection given by this registration.  So you need to make sure that you have a separate registration for any of your own works that you put in this section.

4a. Check Music or Sound recording/performance, whichever is correct for the earlier work.

4b. If the earlier work has a copyright registration, put that information here.

4c. This section is asking what NEW material you’ve created, rather than what already existed in the earlier work.  For musical compositions, check Music and/or Lyrics, depending upon what you added to the earlier work.  If you are also registering a sound recording of your composition(s), check Sound recording/performance.

5 Rights and Permissions Contact

This section is for people seeking permission to use your music.  If you want them to contact you, check the first box.  If they should contact someone else (like your agent, lawyer, or parent), fill in the requested information for that person.

6 Correspondence Contact

This section is for the Copyright Office, in case they have a question or problem with your application.  If you want the office to contact you, check the first box.  If the Office should contact the same person you put in Section 5, check the second box.  If you want the office to contact someone else, fill in the requested information for that person.

7 Mail Certificate To:

This section determines where your registration certificate will be sent.  Usually, you will want it sent to you, so you can check the first box.  Or if you want it sent to the same person as you listed in Sections 5 or 6, you can check those boxes.  Or fill out a different address.

8 Cerification

8a Sign on the line.

8b. Print your name.

8c. Choose Today’s Date or fill in the date by hand.  Remember, this date cannot be earlier than the date you’ve put in Section 1f for the date of first publication, because that would mean that you are trying to register a published work that hasn’t yet been published.  When this happens, the Copyright Office rejects the application.  If you know your music will be published soon, wait for that to happen and then sign and date the form after that date.

8d. Skip.

8e. This is a place where you can put your own code for keeping track of this application.  For example, you can assign it CO1 and put the same code CO1 on your FedEx form.

3.    Write the check.

Write a check (or get a money order) for $45 made out to Register of Copyrights.

4.    Prepare your deposit specimen(s).

A “deposit specimen” is a copy of the musical work(s) that you have identified on the form.  The rules are different depending on what kind of work(s) you are registering, and whether or not they are “published” as discussed above:

For one unpublished composition: provide one copy of the lead sheet or sheet music (full score and parts, if available, or if not, the conductor’s score and parts), OR a CD or tape of a recording of the music (yes, you can submit a recording as a specimen for the composition, even if you are not registering the sound recording).  The CD or tape should have a label with the name of the composition.

For a collection of unpublished compositions, provide copies of the lead or sheet music assembled with a title page giving the same collection title that you put in Section 1b of the form, OR a CD or tape with all of the compositions, appropriately labeled.

For unpublished sound recordings, one copy of each recording.

For published sound recordings, two copies of each recording.

If you are registering compositions and sound recordings together, combine deposit specimens described above.  For example, if you are registering the musical composition and a sound recording of the same composition, a CD of the sound recording will satisfy the deposit specimen requirement for both.

5.    Make copies of everything.

Keep copies of the form, check, and deposit specimens for your files.  This is very important for two reasons: first, your application might get lost or misplaced, in which case you’ll need the back-up.  Second, the Copyright Office doesn’t always keep the deposit specimens.  So you need to keep our own duplicates in case you ever need to prove what the registration certificate covers.  (I know, it sounds crazy, but unfortunately, it’s true.)

6.    Send the package to the Copyright Office.

Send the form, check and deposit specimen(s) to

Library of Congress
Copyright Office
101 Independence Avenue, SE
Washington, DC 20559-6233

Check the Copyright Office website for current information about how to prepare your package: http://www.copyright.gov/mail.html.

7.    Follow up.

If you don’t hear anything from the Copyright Office within 6 months or so, contact the Office and ask about the status of your application:  http://www.copyright.gov/help/general-form.html.

© 2008 Linda Joy Kattwinkel.  All Rights Reserved.  Disclaimer: the information in this article is provided to help you become familiar with legal issues that may affect composers.  Legal advice must be tailored to the specific circumstances of each case, and  nothing provided here should be used as a substitute for advice of legal counsel.

For questions of comments, please visit our Ask Linda page>

Ask Linda Joy

Linda Joy Kattwinkel was an illustrator/graphic designer before her current practice as an attorney and mediator for artists and musicians with Owen, Wickersham & Erickson in San Francisco.  Her clients include corporate intellectual property owners as well as individual artists, musicians and designers.  She is a member of the referral panel of California Lawyers for the Arts and has been mediating and arbitrating arts-related disputes since 1987.  Linda Joy’s artwork has been exhibited in various venues over the past thirty years. As often as possible, she paints in plein air and at her studio in San Francisco.  Linda Joy can be reached at  ljk@owe.com.

If you have any questions regarding copyright issues, share it with some of our other readers. Submit a comment below.

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Arthur Jarvinen

ADORNO brings composer/percussionist Art Jarvinen to comment on the works of ScoreXchange submissions. Read his comments on the participants’ works…

About Arthur Jarvinen:

Arthur Jarvinen (b.1956) is a familiar figure in the contemporary music community, having been a featured composer and performer on prominent concerts, festivals and broadcasts internationally for well over two decades. He was a founding and longtime member of the acclaimed California E.A.R. Unit and has led several of his own bands and ensembles of various kinds. His musical activities both as composer and performer range from contemporary chamber and experimental music to songwriting, surf music, electronics, improvisation and multimedia, and his creative output includes visual art, word works, and experimental theater.

Edible Black Ink, the first full CD of Jarvinen’s music, is released by the California E.A.R. Unit on O.O. Discs. Ghatam, a 55-minute collaborative work by the Antenna Repairmen and sculptor Stephen Freedman is composed for unique handmade ceramic instruments and is released on M.A Recordings. Erase the Fake, the debut recording of Some Over History (O.O. Discs) enjoyed a lengthy stay on the college radio top-ten playlist. Serious Immobilities, Petit (84 variations on Satie’s Vexations), for piano solo, was recently recorded by Bryan Pezzone and released on Los Angeles River Records. In 2002 Jarvinen established Lakefire Records for releasing his own recordings and other projects of special interest. Experimental Etudes is Jarvinen’s first offering as an author. The book elucidates in music and words many of the problems of contemporary music for players of all instruments.

Jarvinen’s theatrical experiments have generated a unique body of work he calls “physical poetry”. These are non-narrative audio/visual compositions for the stage, incorporating sound, text, movement, lighting, and props. Jarvinen has performed his physical poetry as a soloist, and with the California E.A.R. Unit, the Antenna Repairmen, and the experimental theater group Le Mômo.

Jarvinen has received commissions from the Los Angeles Philharmonic, the Koussevitzky Music Foundation (for X-tet), the Fromm Foundation at Harvard University (for the New York New Music Ensemble), the Minnesota Composers Forum (for both the California E.A.R. Unit and Helios), the San Francisco Contemporary Music Players, Zeitgeist, Alea III, and others. He received a 1990 NEA composer fellowship for The Paces of Yu, a unique percussion work for Brazilian berimbau (a folk instrument) and homemade instruments. He was awarded a 1991 California Arts Council fellowship and received Ohio University’s 1997 Achievement In Music Award. He received a Subito Grant from the American Composers Forum, Los Angeles Chapter, for the recording of Serious Immobilities, Petit, and most recently was awarded a City of Los Angeles (C.O.L.A.) Individual Artist Fellowship for the creation and presentation of Nighthawks, a staged song cycle on paintings by Edward Hopper.

Jarvinen’s works have been performed by the California E.A.R. Unit, the Los Angeles Philharmonic New Music Group, New York New Music Ensemble, Icebreaker (England), Relâche, Bang On A Can All Stars, Essential Music, Xtet, Zeitgeist, Contemporary Chamber Players, Ensemble ‘88 (Netherlands), the San Francisco Contemporary Music Players, the Pittsburgh New Music Ensemble, New Performance Group, Twisted Tutu, Bosso Bongo, Magnetic Pig (Australia), New World Ensemble, Synchronia, Ensemble Green, Dinosaur Annex, Firebird Ensemble, Alea III, as well as numerous solo artists.

Major performances include the Ojai Festival, Tanglewood, CalArts Contemporary Music Festival, New Music America, Ars Musica (Brussels), the Meltdown Festival (London), de Ijsbreker (Amsterdam), the Kennedy Center, Monday Evening Concerts (Los Angeles), Bang On A Can, Merkin Concert Hall, Lincoln Center, The Kitchen, and Essential Music (NYC), American Inroads (San Francisco), the Overtones Series and Walker Art Center (Minneapolis), North American New Music Festival, the Kenneth Patchen Festival (Ohio), the Louisiana Museum for Modern Art (Humlebaek, Denmark), and Music Fest Kiev.

Arthur Jarvinen received the Bachelor of Music in applied percussion from Ohio University (1978) where he studied with Guy Remonko, and the Master of Fine Arts from the California Institute of the Arts (1981) where he studied percussion with John Bergamo, Karen Ervin, and Ruth Underwood, and composition with Morton Subotnick, Stephen Mosko, and Earle Brown.

Mr. Jarvinen is currently on the composition faculty at the California Institute of the Arts.

Visit Art’s site

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