You have successfully completed the creation process for your music. The recording is done, you have the final mix sounding perfect, and have mastered (or not) the song so it translated on each streaming platform the same way. You are ready to release your music for public consumption. However, before you do that, there is one final step you must complete to ensure you get the most out of your music. Copywriting your songs and signing up with a performance rights organization (PRO).
A copyright provides the owner with the exclusive right to a particular work for a limited duration of time. For a work to be “copyrightable,” it must be original and fixed in tangible form, such as a sound recording recorded (affixed to) on a CD or a literary work printed (affixed to) on paper. There are many copyrightable works; some include original literary works, dramatic works, choreography, musical works, audio-visual works and other graphic artistic works. Some of these include poetry, novels, movies, songs, computer software, dance choreography, fine art, comics, sculptural works, and architectural works. This means that a band logo, album cover art, photographers and music videos could all potentially be protected.
Music is unique in that every track has two copyrights. One of these is a copyright in the song, i.e. the musical composition, which consists of the lyrics and underlying music (beat, instrumental). The other is a copyright in the sound recording or “master recording” itself. For example, “All Along The Watchtower” was originally written and composed by Bob Dylan. It has been subsequently performed and “covered” by several artists, including Jimi Hendrix. In this situation, the copyright in the underlying musical composition (the lyrics and musical arrangement) is owned by Bob Dylan (or his Publishing Company); while, the copyright in a particular sound recording, such as the Jimi Hendrix version of this track, is owned by Jimi Hendrix (or his record label).
A copyright owner is provided with five exclusive rights in their created work. The owner, as well as authorized third-parties, have the right to: (1) reproduce the work, (i.e., mechanical reproduction of the music for CDs, downloads, and vinyl); (2) distribute the work (i.e., stream or otherwise make the music publicly available); (3) prepare derivative works; (4) publicly perform the work (i.e., in a concert or on the radio); and, (5) publicly display the work. This means that the owner has the sole and exclusive right to publicly distribute copies of the work by sale, rental, or lease and to publicly perform or display the work, such as selling copies of a novel or publicly playing a musical recording at a restaurant. A “compulsory license” is one that cannot be refused by the songwriter (or publisher), i.e., it does not require the songwriter’s permission for you to record his song. In the United States, The Harry Fox Agency is the foremost mechanical rights agency. It administers and issues compulsory licenses and collects and distributes the mechanical royalty license fees to the appropriate parties.
A work created by two or more individuals, where they intend to merge or otherwise mesh their works together at time of creation of the work is considered a joint-work. This means that the joint-creation must be prepared “with the intention” that the different creator’s contributions will be merged “into inseparable or interdependent parts of a unitary whole” with each author contributing material that, “Could have been independently copyrighted.” However, each author’s contributions to the final work need not be equal and the authors do not need to be in the same physical area or create the work at the same time. The length of a copyright for a “joint work” is 70 years after the last surviving author’s death.
Another related copyright concept is the “work for hire” doctrine. This means that an individual is commissioned by a third party, an individual or corporation, to create a specific work for the third party. This third party is then the owner of the work created by another. For a work to be considered a “work for hire,” the copyrighted work must be prepared by an employee within the scope of his or her employment for their employer. While this may seem straight forward, an analysis of who is considered an “employee” and whether a work was created “within the scope” of the employee’s employment, are determined on a case by case basis. In addition, a work may also be considered a “work for hire” if a “work [is] specifically ordered or commission for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas” as long as “the parties agree in writing that the work is a work made for hire.” For works made for hire and anonymous and pseudonymous works, the duration of copyright is 95 years from first publication of the work or 120 years from creation, whichever is shorter. Registering a copyright is as easy as preparing and submitting an application to the United States Copyright Office with the appropriate filing fee and copies of the copyrighted material. Once the work is registered and the certification is issued, the benefits of the registration begin immediately and are retroactive to the initial filing date. A formal registration of the creative materials with the U.S. Copyright Office within three months of public release provides additional, valuable benefits to the owner of the work. Some of these benefits include that the work now becomes a matter of public record and is available for search within the U.S. Copyright Office and the Library of Congress. A work must also be registered in order to bring a copyright infringement lawsuit.
A PRO is an agency that ensures songwriters and publishers are paid for the use of their music by collecting royalties on behalf of the rights owner. PROs collect public performance royalties. When a song is played in public, like on any kind of radio (AM/FM, streaming, or satellite), in a venue, or TV shows and commercials, it is required that they pay for the use. The PRO collects those payments, and distributes them to the rights holders. The biggest names in PROs in the United States are ASCAP, BMI, and SESAC. For our Canadian friends, there is SOCAN. They collect public performance royalties from public performances as defined by the US Copyright Act and ensure that payment is issued appropriately. Any outlet that plays music publicly must be licensed to do so. Restaurants, music venues (bars, amphitheaters, performance halls, etc.), sports arenas, stores and shopping malls, bowling alleys, golf courses, amusement parks, airports, hospitals, and any other public place that plays music must purchase a license from the PROs in order to play that music. That licensing fee is paid out by the PRO as a performance royalty to songwriters and rights holders (publishing companies). When songs are streamed digitally on a service like Pandora or SiriusXM, or on a cable music channel (like Music Choice), SoundExchange collects digital public performance royalties. These are collected for works covered by the Digital Performance Right in Sound Recording Act of 1995 and Digital Millennium Copyright Act of 1998. Though services like Spotify, Apple Music, and Rdio have reached deals with many labels and publishers directly, bypassing SoundExchange when dealing with royalties.
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