A Brief Outline of Copyright Law in the U.S. (from summer legal intern Zara Day)
We live in a time when technology is moving at exponentially quicker rates than the laws that regulate it. Copyright law is already complicated before introducing the complexities of the Internet into the equation. The most basic principle of music copyright law is that the product of a person’s mind is equally as important as a physical product. For example, a song on an album has the same legal and possessory value as the actual physical album itself. Just because a song cannot be “held” does not mean that it does not have the same qualities of ownership that an album (or, less confusingly, a painting) does.
Music copyright is a loaded area already. It has always been a complicated and contentious subject matter, but the introduction of file-sharing sites like Napster, MP3s, and streaming sites and devices have created new obstacles for artists, record labels, and industry executives. My blog posts over the coming weeks will consider the various ways in which the law has and has not dealt with technological advancements. I will also evaluate the ways in which the laws’ actions (and inactions) have affected artists, music consumers, and labels. This first blog entry discusses some of the most basic principles of copyright law in the United States.
I. What is copyrightable material?
The intention of copyright law is (presumably) to ensure that thinkers, philosophers, and musicians are not at a legal disadvantage to artists and innovators who create more tangible products. If property regulations were based strictly on “real property,” or physical goods and, as my property professor was wont to say, “goods with thinginess,” then all property that could not be held or physically manifested would have no protections. Just because a creation is physically immaterial does not mean that it should have less legal safeguards than something that is tangible. This protection is particularly important for musicians.
Songs can be copyrighted. Recordings (“sound recordings”) can be copyrighted. Ideas, however, cannot be copyrighted. This means that although an artist may have been the first person to express an idea, and may believe him or herself to have been the first person to have an idea, the idea itself is available for other artists to interpret, consider, and discuss.
In the United States the 1976 Copyright Act outlined three basic requirements for material to be copyrightable: originality, expression, and fixation.
Originality:
In order for a song to be considered legally “original,” the court does not look primarily to the uniqueness of the composition or song. Instead, the general legal emphasis is on whether or not the composition is an artist’s “independent creation.” If a song is legally an independent creation, it has been created entirely of the artist’s own mind. For example, if a musician writes a song that, unknown to the musician has exactly the same melody and lyrics as another musician’s song, both musicians can own the rights to their songs as original compositions. In the age of instant streaming and with such a great amount of music access, this is a highly unlikely scenario, but is an idea protected by the law nonetheless.
Since so much of music is based on the building and reinterpreting of past trends, the courts have been hesitant to highlight “uniqueness” or creativity as a substantial element of originality. The Courts require only “some minimal degree of creativity” for a piece of music to be considered original, in an effort to not stifle creativity. One important reason why the creativity requirement exists is so that artists cannot expressly take works from within the public domain and attempt to copyright them as their own work. For example, courts aim to protect songs like Yankee Doodle (which is within the public domain) from being performed by modern artists and then copyrighted so that other artists would not have access to it.
Expression and Fixation:
As previously mentioned, although an artist’s “expression” can be copyrighted, an idea is not copyrightable. Even though the idea may be new, and it may never have been expressed before in any form of publication, as an idea it is part of the “public domain” and free for use by all people. The only way to take your idea out of the public domain and protect it as your own is to “fix” it in a tangible medium such as by writing it down and publishing it, or by recording it (if it’s a song) and releasing it to the public as your own song.
In order for a work to be legally “fixed” it must be “sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.” (United States Copyright Act § 101) Essentially, when it is possible to make a recording (historically a “phonorecord” or copy) of a song, the song has been fixed. Subsequently, a musician that comes up with a great melody and a catchy hook has no rights to this work if it is played or recorded by another artist before the first musician fixes it. Furthermore, if a musician comes up with the lyrics and melody for a song and plays it for a friend before fixing it, and the friend then records or fixes it herself, the first musician has no rights to the song. Of course, this can create a sense of paranoia within the industry where musicians are unwilling to share unfixed work with each other.
Summation:
In short, in order for your song to be copyrightable it must be (1) an independent creation and have at least a modicum of creativity, (2) an original expression and not an idea, (3) able to be copied or recorded.
II. What is not copyrightable?
There are several types of works that are not copyrightable. Works within the public domain cannot be copyrighted. Works within the public domain include songs for which the copyright expired because they were written long ago. Ideas, facts, names, titles, and short phrases cannot be copyright either. Finally, unfixed works and works of the United States government cannot be copyrighted. Artists no longer have to register their creations with the Copyright Office to secure copyright, but this used to be a requirement for copyright ownership, so works created before January 1, 1978 that were not accurately submitted to the Copyright Office may also be within the public domain.
The Public Domain:
Works within the “public domain” are accessible to all people. A surprising number of popular songs are not within the public domain, but those that are can be used in movies, clips, and “samples” at will and without having to obtain anyone’s permission first. At its inception in 1709, a work’s copyright lasted only fourteen years with the option for an author to extend another fourteen years if he was still living at the end of the first period. Today works created after January 1, 1978 are copyrighted for the entirety of the creator’s lifetime plus seventy years beyond the artist’s life.
III. Who can own copyright?
Music copyright ownership is broken down into important pieces. Owners can have rights to songs or song recordings (or both). Ownership of a song recording means that the owner has rights to royalties of one physical album or recording. It is most common in the industry for artists to own the rights to their songs and labels to own rights to their song recordings. This means that artists have rights to perform and play the song (the artistic and creative creation) and the labels have rights to sell, market, and distribute the physical manifestations of the artist’s work (albums, etc). Copyright owners then sell licenses to third parties who want to use the copyrighted material (e.g. film producers, other artists wanting to do cover songs, etc).
Mechanical Licenses:
Mechanical licenses give third parties the rights to distribute and produce copyrighted material. The aim of mechanical licenses is to facilitate the process of music distribution. A mechanical license would likely be given by the owner of the rights to a song or sound recording to distribution organizations who would help market and sell albums. As distribution for music becomes more internet-based, the dimensions and dynamics of mechanical licensees are evolving.
Performance Licenses:
Performance licenses give third parties the rights to play copyrighted material. Today, one of the most interesting concerns dealing with performance licenses is how they interact with the many amateur musicians who post videos of covers on youtube.
Synchronization Licenses:
Synchronization licenses give third parties the rights to use copyrighted material in other media forms like films. The ease of music copying and manipulation today also creates problems. Since it is so accessible for individuals to “synchronize” their music to clips they have filmed and so simple to post these clips on Youtube, it is almost impossible (and certainly would be a public relations nightmare) for record labels to police all youtube video artists who use copyrighted materials in their clips.
Artist and Label Dynamics
As the relationship between artists and labels has evolved over time, the power dynamic has shifted. Although the industry standard used to be that labels would pay a lump sum to buy both the song and song recording rights from artists, leaving artists with literally no ownership of their own creation, today, most artists maintain the rights to their songs. It is important for musicians to know that it is possible for artists to lose all rights to their music, however, if they sell both the song and song rights.
Royalties
For copyright and compensation purposes, songs are generally split into two sections: “melody” and “lyrics.” Subsequently, if multiple artists wrote either the melody or the lyrics, the copyright ownership and royalties are split between creators.
What’s Next?
After briefly analyzing some of the most basic principles of copyright law, the next entries of this blog will consider some of the modern problems that technology and the Internet have posed for musicians, music consumers, lawyers, and labels.
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