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!