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Ask the Attorneys: Copyright in Music -- Seeing Double

Any time you listen to a track on a CD or an MP3, or listen to a song broadcast on the radio or the internet, or hear that same song as part of a film or television program, you are seeing the exploitation of two separate sets of copyrights.

Since the rise of the singer-songwriter paradigm over the last several decades, many people have come assume that the performers singing or playing a particular song are also the songwriters who wrote it.  However, the conceptual framework that underlies copyright law is much older, and makes a sharp distinction between copyrights which derive from the work of songwriters, and those which derive from the work of performers.

When they compose a song - the melody and the lyrics (if any) - and preserve it, whether by writing it down or performing it into a recording device, the songwriters create a copyrightable work called a musical composition.  No matter how a musical composition is actually preserved, it is perhaps easiest to think of the composition as sheet music, which was the primary form in which music was sold until the middle of the twentieth century.  The musical composition is subject to copyright, usually belonging initially to the songwriter;  If there is more than one songwriter (a composer and a lyricist, for example), they each have equal shares in the copyright, unless they have agreed to a different split.  As a practical matter, however, the songwriter(s) frequently sign over the copyright to a music publisher, in exchange for an advance and/or a share of royalties received, though some songwriters retain the copyright in their works and act as their own publishers.

For a songwriter, the musical composition copyright is the sole source of revenue.  Anyone who wishes to exploit the song - a performer who wants to perform or record it, a broadcaster who wants to play it on air, a producer who wants to use it in film or television program - must pay the holder of the musical composition copyright for a license.  Further, because industry custom dictates that one-half of public performance royalties be paid directly to songwriters rather than to publishers, even songwriters who face problems with their publishers can expect steady payment from the performing rights organizations (in the United States, these are ASCAP, BMI and SESAC).

Once the composition is written, it may be performed and recorded.  The performer may be the songwriter, or it may be someone else.  In either case, the performers and the record producer are together creating a new and separate work, the sound recording.  This new work is separate from the musical composition, but derives from it.  As a result, it is usually not possible to exploit the sound recording copyright separately from the musical composition copyright; anyone seeking a license to use the recording of a song will also need a license to use the underlying musical composition.

As a practical matter, the sound recording copyright will usually be transferred to, or even initially belong to, a record company, though as above, some performers and producers make and release their own records, and retain the copyrights.  If a record company is to become the copyright owner, the performers and producers will usually receive an advance, a flat fee, a share of royalties, or some combination of some or all of these.  As with the performing rights organizations, "featured" performers - that is, generally the big-name performers, but not studio musicians, backing vocalists, or other supernumerary performers -may be paid directly by SoundExchange in the United States, which collects public performance royalties paid for digital exploitation of a sound recording.

When making or exploiting recorded music, remember that you are not dealing with a single set of copyrights, but with two.  Seeing double will help keep you from a potentially disastrous copyright infringement problem.

Joshua Graubart is an entertainment and intellectual property litigator with Winslett Studnicky McCormick & Bomser LLP.

This blog post provides general information about the law for the benefit of Fractured Atlas members. The information contained in this post is not legal advice. Please consult with a lawyer to obtain advice about how the law impacts your particular situation.