Music Publishing and Copyright Laws

Copyright laws affect all phases of the music industry: manufacturing copies of recordings, performing, distribution, display of lyrics or artwork, radio/TV play, recording other artists' songs, licensing or leasing songs or recorded music etc.

All copyrights are issued by federal law and deal with registration for copyright, assignments, infringement, remedies, work-made-for-hire, blanket licensing, pirating and fair use. The most important thing to keep in mind about the copyright law is that the right to copy a song or musical recording is a kind of property that exists apart from the sheet music or master recording. Simply purchasing a recording in a retail store etc. does not give one the right to copy the music on other tapes or CD's and sell them yourself.

A copyright in the U.S. in most cases lasts the life of the 'author' (artist, writer, songwriter etc.) plus 50 years, before the work becomes public domain, in which case it is available for unrestricted use by anyone. Once a work falls into the public domain it can never be recaptured by the owner. It is in your best interest to get your work copyrighted right away -- a simple and inexpensive procedure.

What Is Copyright?

Simply stated, a copyright is legal protection of ownership -- the right to copy a work of original authorship, including works of the visual, performing and literary arts.

A copyright is the exclusive right, granted by law, for a stated period, usually until 50 years after the death of the surviving author of the work -- to make, dispose of and otherwise control copies of literary, musical, dramatic, pictorial and other copyrightable works. Exclusive right is set forth in the 1976 U.S. Copyright Law Section 106.

How To Copyright

To register a music work under the 1976 Copyright Act:

1. Send a request for application to:

   Register of Copyrights
   Copyright office
   Library Of Congress
   Washington, D.C. 20559

   (To order an application by telephone call 202-707-9100)

2. Send completed application to the Copyright Office with:

   1. 1 copy of manuscript, lead sheet or tape if unpublished
   2. 2 copies of manuscript (sheet music) or tape if published
   3. Appropriate registration fee of $20, by money order, bank draft or check made payable to Register of Copyrights.

Applying For Copyright Notice On Product

The statutory copyright notice must appear on every published copy of a song, artwork etc. It should include:

1. The word copyright'
2. The copyright symbol
3. Owner of copyright (you)
4. The year of first publication
5. For South American publication, add 'All rights reserved.'

"Work For Hire"

It is important in copyright law to distinguish between ownership or copyrights in a work and a so-called "work made for hire" when a songwriter agrees to write a song for an employer while in the employee of that person. Where a songwriter agrees that his song is a "work made for hire", his hiring employer is deemed to be the copyright owner with all rights to register and grant assignments and renewals and collect all royalties. Under the law, the creator of a work who is not an employee acting in the scope of his employment is considered the copyright owner from the moment the work is fixed in a tangible medium of expression -- unless he signs an agreement stating that the work is one 'made for hire.'

Should you neglect to include the required notice on your work and do not stay within certain curative provisions under the law, you could lose valuable benefits, or worse, or work just might fall into the public domain.

Certain things that can not be copyrighted such as titles or ideas not reduced to written or recorded form or works not possessing enough originality to distinguish them from other copyrighted or public domain material. All other works should be registered with the Registrar of Copyrights, Library of Congress.

Exclusive Rights

The rights of the songwriter under Copyright Law include:

1. The right to publish the song
2. The right to make arrangements of the song
3. The right to make and distribute sound recordings of the song, subject to compulsory license
4. The right to perform the song publicly

Copyright and Record Co. Contracts

Where the artist under contract owns the copyright on the songs recorded, the record company will sometimes demand that the artist transfer a portion of the copyright to them. Often the record company will require the artist to enter a co-publishing agreement at the time of contracting the record deal.

Where the artist will not or cannot transfer the publishing rights to a song, the record company will still require that the artist negotiate a 'mechanical' royalty, at more-favorable-than-statutory rates, on 'controlled compositions,' songs whose copyrights the artist controls.

Controlled Composition

Controlled composition is one written or co-written by a recording artist (and sometimes the producer in and of the artist contract) under an exclusive recording agreement. Typically, the recording company will pay 75% of the minimum statutory rate on only 10 sides per LP and 2 sides per single recording, regardless of the actual number of sides or lengths of the composition(s).

Compulsory Mechanical License

Compulsory Mechanical License is a license provided by the Copyright Law allowing anyone to record a song previously commercially recorded with authorization, as long as that person pays at least the current royalties set by the Copyright Royalty Tribunal. This pertains to 'cover' songs. The right of the songwriter to record or authorize the recording of one's song is subject to the nonexclusive right of any other person (once the song has been recorded) to make and distribute one's own recordings of the same song. This compulsory license is obtained by filing a notice of intention with the copyright owner or the Copyright Office and by paying the statutory royalty to the songwriter. Songwriter must register song in order to receive mechanical royalties.

Fair Use

The Copyright Law qualifies the exclusive rights of the songwriter permitting certain kinds of 'fair use' of a song for purposes such as "criticism, comment, news reporting, teaching, scholarship or research."

The Copyright act also exempts from liability for copyright infringement certain performances of music such as a performance in the course of face-to-face teaching activities of a nonprofit educational institution; closed-circuit transmissions by a governmental body or nonprofit educational institution; services at a place of worship; at a free concert where no admission is charged or if the proceeds from the concert are used exclusively for charitable purposes. An exception in the latter case is that the songwriter has the right to veto use by serving a written notice of objection to the performance.

Song Registration - Before You Publish

What does a songwriter do if his or her work is not yet copyrighted but he or she wishes to perform the song publicly? To protect their songs from rip-offs while demonstrating or performing them in public, you can cheaply and safely establish proof of authorship by registering their song(s) with (1) The Copyright Office in Washington D.C. by filing Form E or (20 as an interim action only, consult your attorney. Supply him or her with a copy of your song on tape or disc, or even just a lyric sheet if that is all you have written. Have your attorney seal it, date it, give it a registration or identifying number and file it in a vault. Get a signed receipt. This does NOT give you the protection of copyright but does identify your authorship.

What is Publishing?

The term "publishing" most simply means the business of copyrights. A writer owns 100% of his or her copyrights and 100% of the related publishing rights until the writer signs those rights away by contract.

As defined by the copyright law, publishing has two separate meanings. First, it is the "distribution of copies of a work to the public by sale or other transfer of ownership, or by rental lease, of "lending". Second, a work can be considered published if there has been an " offering to distribute copies of a work to a group of persons for purposes of further distributions, public performance or public display." In other words, publishing occurs when copies are printed and there has been an offering to distribute those copies.

As a practical matter, music publishing consists primarily of all administrative duties, exploitation of copyrights and collection of monies generated from the exploitation of those copyrights. If a publisher takes on these responsibilities it "administers" the compositions. Administrative duties range from filing all the necessary registrations (i.e., copyright forms) to answering inquiries regarding the music composition.

One of the most important functions of both songwriters and music publishers is exploitation simply means seeking out different uses for music compositions. Music publishers have professional quality demos prepared and send them to artists and producers to try to secure recordings. They also use these tapes to secure usage in the television, film and advertising industries.

Equally important as exploitation is the collection of monies earned by these musical usages. There are two primary sources of income for a music publisher earnings that come from record sales (i.e., mechanical royalties). Mechanical royalties are collected directly from the record companies and paid to the publisher. Performance royalties are collected by performing rights organizations -- ASCAP, BMI and SESAC and then distributed proportionately to the publisher and directly to the songwriter.

In addition to plugging and administrative functions, it is also important to know that there is a creative side to music publishing. Since producing songs is in the best interest of both the writer and the publisher, good music publishers have whole departments devoted to helping writers to grow and develop. The creative staff finds and signs new writers, works with them to improve their songs, pairs them up creatively with co-writers and hopes the outcome will be hit records.

Administration, exploitation, collection of monies and creative development are the major functions of a music publisher. Although a writer can be his own publisher ( and in fact, owns his or her own publishing rights until they are signed away) the large publishers in the music business usually pay substantial advance payments to writers in order to induce them to sign a portion of their publishing rights to the publisher.

Keep in mind that since every music publisher is different it is important for the songwriter to assess both the business and the creative sides of a music publisher before signing a deal. Music Business Institute, Eric L. Cager, 504-945-1800 or [email protected] or http://www.ikoiko.com/cuttingedge/.