Table of Contents
- The Two Types of Music Copyright Works
- The Doctrine of Fair Use and Music Borrowing
- The Relevant Music Copyright Acts
- Register a Copyright for Music
Music copyrights are the same as other copyrights. As defined on the What is a Copyright page, a copyright is a type of intellectual property protection for original works of authorship. Copyrights protect original literary or artistic works such as films, novels, poems, lectures, plays, choreography, drawings, paintings, sculptures, architecture, maps, and especially songs. A copyright is the exclusive legal right given to an originator (or an assignee) to reproduce, distribute, perform, display, and prepare derivative works based on the work. In addition, this protection gives the owner the right to let others exercise these exclusive rights (license), subject to certain statutory limitations. You can register your work for a copyright yourself, but Carson Patents offers copyright help.
By definition, a copyright protects an original work as soon as the author “fixes the work in a tangible form of expression.” In the case of music, as soon as the artist or artists record the audio or write down sheet music, the work is copyrighted. This means that for the artists, as soon as the music is created and documented in some way, they have the exclusive right to reproduce it, distribute copies of it, perform it, and make modified versions of it.
The Two Types of Music Copyright Works
When the musicians create the work, two works are actually being created. These two works are the musical composition (musical work) and the sound recording (master recording).
Musical Composition (Musical Work)
A musical composition is the composition of the song – the notes, melodies, lyrics, and chords in the order it was written and produced. The musical compositions are typically owned by the songwriter or composer.
Sound Recording (Master Recording)
The sound recording is the recording that demonstrates the way in which the artist performs the musical composition, called a “phonorecord.” The sound recording is typically owned by the performing artist and the performing artist’s label.
For a music copyright example, David Bowie owns the musical composition of his song “The Man Who Sold the World” because he is the songwriter. He also owns any recordings of him performing the song. Nirvana, however, owns their cover of this song during their MTV Unplugged performance in 1994. Nirvana is the owner of the cover sound recording because they are the ones singing the lyrics and playing the notes in the recording.
The Doctrine of Fair Use and Music Borrowing
There is no music copyright company or music copyright checker to go to for copying music. There are, however, a variety of ways to utilize lyrics and instrumentals of songs written and performed by other artists without infringing. First, before delving into these different ways, it is important to understand the doctrine of fair use.
According to the U.S. Copyright Office, “Fair use is a legal doctrine that promotes freedom of expression by permitting the unlicensed use of copyright-protected works in certain circumstances. Section 107 of the Copyright Act of 1976 provides the statutory framework for determining whether something is a fair use and identifies certain types of uses—such as criticism, comment, news reporting, teaching, scholarship, and research—as examples of activities that may qualify as fair use.” The factors for determining fair use included in 17 U.S. Code § 107:
- The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
- the nature of the copyrighted work;
- the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
- the effect of the use upon the potential market for or value of the copyrighted work.
There is not a clear determination of fair use rather the courts rules on a case-by-case basis. The above factors are merely guidelines the court uses for evaluation. For more information about fair use, visit the U.S. Copyright Office.
There are a few types of music borrowing including samples, covers, and parodies.
Samples and Interpolations
Sampling is using another artist’s sound recording in another sound recording. Samples can be similar to the original recording or can be manipulated through looping, speeding up/slowing down, or other alterations. For example, the song “Midnight Sky” by Miley Cyrus samples the melody of “Edge of Seventeen” by Stevie Nicks but has completely different lyrics.
Failure to get permission to sample could result in being ruled as fair use or could be determined copyright infringement by the courts. In some court rulings, unlicensed sampling was considered copyright infringement (Grand Upright Music, Ltd. v. Warner Bros. Records Inc (1991) and Bridgeport Music, Inc. v. Dimension Films (2005)).
Grand Upright Music, Ltd. v. Warner Bros. Records Inc (1991) changed the way American copyright law viewed sampling and set precedent for how music copyright infringement is handled today. In this case, rapper Biz Markie and his co-defendant, Warner Bros. were sued by songwriter Gilbert O’Sullivan because Biz Markie sampled O’Sullivan’s song without permission. Part of the defendants’s argument was that sampling was very common in the industry, so they are not guilty. This stance, and the fact that Warner Bros. had tried to get permission to use the sample, failed to get permission, and then used the sample anyway proving the infringing to be willful.
Biz Markie and Warner Bros. were found guilty and this changed the way artists sampled music. Artists were now required to get permission to sample songs. After this ruling, if sample licensing was too expensive or the copyright owner declined permission to sample, artists began using interpolations, or a replayed samples, to use the melody of the original song.
The difference between sampling and interpolation is that a sample uses a sound recording and interpolation is played by the interpolating artist. An example of a recent interpolation is Olivia Rodrigo’s song “Good 4 U” using a similar tune to that of Paramore’s song “Misery Business.” Paramore’s Hayley Williams and Josh Farro received as much as $1.2 million of the song’s publishing royalties after “Good 4 U” was released according to Rolling Stone.
On the opposite end as Olivia Rodrigo’s case is Led Zeppelin and the copyright infringement lawsuit brought against them by the rock band Spirit. The band alleged that Led Zeppelin’s “Stairway to Heaven” acoustic guitar opening resembled Spirit’s song “Taurus” in 2014. According to Spirit’s guitarist, Led Zeppelin had opened for them during their first American tour in 1968, thus hearing “Taurus” two years before “Stairway to Heaven” was released. Two years later, the jury decided Led Zeppelin had not infringed and the resemblance was due to arpeggios, a sequence of descending or ascending chords commonly found in songs. Spirit’s lawyer appealed and the case was reheard en banc (heard by a larger panel of judges – in this case, eleven).
The Ninth Circuit court ruled that Led Zeppelin was not infringing and overturned the “inverse ratio rule.” This rule, which says that when an infringer has more access to a work, the lower the bar for being similar. The Ninth Circuit said “Because the inverse ratio rule, which is not part of the copyright statute, defies logic, and creates uncertainty for the courts and the parties, we take this opportunity to abrogate the rule in the Ninth Circuit and overrule our prior cases to the contrary.” This ruling was challenged in 2022, however, the Supreme Court denied to hear the case, making the Ninth Circuit’s decision case law (law based on precedent).
There has also been an instance that the courts ruled unlicensed sampling was not infringement: VMG Salsoul v. Ciccone (2016). In this case, a lawsuit was brought against Madonna for sampling the Salsoul Orchestra’s horns in her song “Vogue” without getting permission. The federal court ruled that under the de minimis doctrine, an insubstantial part of the song was used. De minimis means “pertaining to minimal things” in Latin. Because such a small sample was used, an average audience would not be able to determine the original work in Madonna’s song. In most copyright music cases, permission is necessary to avoid a lawsuit.
Parodies are the copying or reworking (and frequently mocking) of existing music whether that be the lyrics or the original performer themself. Because parodies are usually in the form of satire or criticism, it is unlikely that the copyright owner will give the parody creator permission to use the work. A parody, however, typically falls under the fair use doctrine, but that can only be determined by the court should the copyright owner take action. The parody creator could also defend themselves in court by claiming the parody is a form of free speech protected under the First Amendment. Note, however, that well-known parody creator “Weird Al” Yankovic gets permission to parody popular songs before doing so.
A cover is the performance or recording of a work by a musician that is not the original songwriter or performer. Covers are often performed in a way of tribute to the original performer rather than trying to take credit for the work. The cover song can be very similar to the original or can be reworked and interpreted by the covering musician.
For example, Johnny Cash’s cover of the Nine Inch Nails’ song “Hurt” takes on Cash’s interpretation while only changing one line of the lyrics. Cash and his producer received permission from the Nine Inch Nails frontman himself to cover the song he wrote. In addition, many famous performers have cover bands that exclusively play covers of the specific artist or band. Elvis, Metallica, and Led Zeppelin popular tribute band collectors. The doctrine of fair use is not something that typically applies to covers. Permission to perform covers of songs can be arranged through the copyright owner and the interpreting artist or through mechanical licensing (paying a standard royalty/blanket licensing).
The Relevant Music Copyright Acts
Music Modernization Act (MMA)
The Music Modernization Act (MMA) was created to keep copyright law updated and became law in 2018. MMA is broken down into three sections: Musical Works Modernization Act, Classics Protection and Access Act, and Allocation for Music Producers Act.
The Musical Works Modernization Act (Title I) created the blanket licensing system to distribute phonoreocrds. This act is the reason artists are able to put their music on streaming services or available for download on listeners’ devices. Also included in this act is the creation of a “mechanical licensing collective” (MLC) and a “digital license coordinator” (DLC) to administer the blanket licenses and coordinate the licensees’ activities, respectively. The MLC does things like collect and distribute royalties, identifying owners of musical works, etc. Basically, the MLC monitors the music copyrights and ensures owners are receiving royalties owed.
The Classics Protection and Access Act (Title II) federally protects against the unauthorized use of pre-1972 sounds recordings. Sound recordings were previously not protected under federal copyright law unless created after February 15, 1972. According to the U.S. Copyright Office, the Classics Protection and Access Act protects pre-1972 sound recordings on a federal level for a period of time based on these conditions:
- For recordings first published before 1923, the additional time period ends on December 31, 2021.
- For recordings first published between 1923-1946, the additional time period is 5 years after the general 95-year term.
- For recordings first published between 1947-1956, the additional time period is 15 years after the general 95-year term.
- For all remaining recordings first fixed prior to February 15, 1972, the additional transition period shall end on February 15, 2067.
The Allocation for Music Producers Act (Title III), in general, was created to allow music producers, mixers, or sound engineers to also receive royalties on sound recordings, something that was not previously available.
The CASE Act
The Copyright Alternative in Small-Claims Enforcement Act of 2022 (CASE Act) was passed in December of 2022 and created the Copyright Claims Board (CCB) in the Copyright Office. The CCB was established to resolve small claims copyright disputes (up to $30,000) more timely and affordably than when using federal litigation. Copyright law is federal law, therefore, up until this point, parties of copyright lawsuits were required to dispute in federal court. Because this act is still in the implementation process, check to see if the implementation process is complete.
Register a Copyright for Music
How to copyright music for free is possible because protection is automatic. Because of the Berne Convention, a literary or artistic work is automatically protected as soon as it is created. Although it is not necessary to officially register a copyright for your song, registration provides a few benefits: having a public record of the claim, the ability to file a copyright lawsuit in federal court, and receiving return of legal fees for infringement claims if you win a suit.
Music law is forever changing as the world becomes more connected and more digitalized. Musicians should be aware of copyright infringement not only to prevent themselves from being guilty but to also receive any licensing fees deserved. Registering a copyright is a relatively simple process that we recommend you do yourself. To register a music copyright, visit the U.S. Copyright Office’s website and follow their steps to copyright music online or contact Carson Patents.