Music Publishing – Copyright Basics

Let’s say you happen to be a part of that rare breed of recording artist–in addition to being an incredible performer, you also write and compose music! Prince ain’t got nothing on you!! It’s only a matter of time before you’re a rising star and TMZ starts following you around!

As you’ve steadily been building your buzz online these past few months, you decide it’s time to sell a song on iTunes and see what it does. Turns out the first week you sell 15,000 downloads! (Yo – it could happen – really!) Now, you’re excited because all of the labels and music publishing companies have taken notice and start calling you! You did expect the record labels to come running, but it’s even more of a pleasant surprise when music publishers actually call to offer you co-publishing and administration deals. Obviously, you reach out to your music attorney to advise you on what these companies mean when they say that they want to offer you a co-publishing agreement or an administration agreement.

Before you can fully understand what a co-publishing or administration agreement is, you first need to understand the basics of copyright and copyright law. So, what is a copyright?  A simple way to understand the definition of a copyright is to simply reverse the two words “copy” and “right”; do this and you’ll get “right” to “copy.”

The Copyright Act of 1976 (Copyright Act) gives you as a creator of an “original work” (such as movies, books, musical works and sound recordings, etc.) the exclusive right to (or to allow others the right to) “copy” or reproduce the work; the right to create derivative works; the right to distribute copies of the music; the right to publically perform the music; the right to transfer the copyright interest to a third-party; and the right to perform a sound recording by means of digital audio. In other words, you, as the writer and composer of the song or “composition,” have the right to enter into an agreement with a third-party music publisher and transfer some or all of your ownership interest in that song.

Another question you should consider is: What can be copyrighted? I often get calls from clients who want to sue another artist on copyright infringement grounds because they were in the studio and gave the artist the “idea” for the disputed song. Well, according to the Copyright Act, a copyright arises when an “original work is created and put into a tangible form or medium.” If that client had put his “idea” either on a sheet of paper or better yet, recorded it onto a CD or a digital .wav file, then a copyright could be claimed on that song in question. “Ideas,” however, are not copyrightable; only tangible expressions of an idea may be copyrighted. So, if you’ve got a great idea for a movie, book or song, it would be best to keep that idea to yourself until you’re able to write it down or record it!

Now, even though you automatically have a copyright in the song the minute you put it on a CD or record it in a studio, the way to protect it from copyright infringement (i.e., the unauthorized use of your music) is to register the song with the United States Copyright Office headquartered in Washington, D.C. In other words, in order to sue someone you feel is infringing on your copyright, you must have the song registered.  The song can easily be registered online (www.copyright.gov); and remember, since you are the author as well as the owner of the sound recording, you will need to fill out the Performing Act (PA) Form, as well as the Sound Recording (SR) Form.

Additionally, you will have the exclusive copyright in the song for your life, plus 70 years after your death. Had you written the song with someone else, the copyright duration would be for the life of the longest surviving author, plus 70 years.

Finally, a copyright is like property, in that your exclusive rights can be bequeathed to your significant other or your children by a will.  So long after you’re gone, “the music will still play on!”

Next issue–we’ll delve into co-publishing and administration agreements.