Music Copyright in the Twenty-First Century

Robert McParland. The Business of Entertainment. Editor: Robert C Sickels. Volume 2. Westport, CT: Praeger, 2009.

Copyright is literally the right to copy a work of art. It is an intangible property right that provides exclusive rights to authors for the protection of their writings. It grants exclusivity to authors to reproduce and publish their work and prevents others from doing so. Copyright protects how ideas are expressed. The unique expression of ideas is what is copyrighted. Currently, music copyright, once a subject of specialized concern for entertainment attorneys, law professors, music publishers, and songwriters, has emerged as a hot topic for music listeners and consumers. With digital downloading and relatively easy access and distribution by electronic means, the use of copyrighted material has entered a new and often controversial phase. With the new emphasis to protect intellectual property from piracy has come new restrictions that affect the public. The future of the music industry, in part, hinges upon developing legal ways for consumers to buy product electronically while protecting intellectual property. It is increasingly necessary that we come up with creative solutions to the challenges of digital media and public policy. It has become imperative that constitutional concerns regarding copyright and not exclusively business and trade interests be weighed and considered. Those concerned with copyright must balance the public interest with authors’ interests and companies’ economic interests. Legislators must practice Constitutional discourse, as well as business discourse, in this matter. Congress has to consider creators and users, as well as copyright’s impact upon trade and upon America’s future.

With the emergence of digital technologies, copyright has entered a period of dispute. Digital technology has advanced rapidly, and copyright has been playing catch-up. In a peer-to-peer music sharing environment much is at stake. The discussion is usually framed by corporate interest because accessibility to music product through these digital technologies threatens their traditional revenue streams. However, to find effective solutions, the discussion must move beyond narrowly defined issues of piracy toward innovative reform of copyright and effective uses of digital download technology. One may argue the case that copyright revision will benefit the public, creative artists, and companies holding copyrights. Even so, it is likely that copyright discussions, on the legislative level, will be dominated in the immediate future by corporate music business interests.

Much has been written about the problems that are facing us. Peter Jaszi outlined the issues of authorship, contemporary copyright, and collective creativity in the Duke Law Journal more than a decade ago. More recently, he has suggested that his testimony before Congress was not really heard because, in his view, Congress listens thinking of trade rather than of Constitutional issues. Lawrence Lessig, an attorney who continues to lead a battle for the revision of copyright law, is strongly opposed to copyright extensions and believes that they negatively affect the public commons. Rosemary Coombe, in The Cultural Life of Intellectual Properties: Authorship, Appropriation and the Law (1998), urges a cultural studies approach to legal discourse about copyright, one that is social, political, and ethical. Mark Rose, in Authors and Owners: The Invention of Copyright (1992), has looked carefully at eighteenth-century copyright law cases and concluded his book by arguing that copyright is “an archaic and cumbersome system of cultural regulation.” Martha Woodmansee, in “The Genius and the Copyright: Economic and legal Conditions of the Emergence of the Author” (1984), connected copyright law economics and the romantic notion of genius and originality. Paul K. Saint-Amour, in The Copyrights (2003), points to the impact of copyright upon cultural memory. He makes no mention of how the European extension of copyright terms to life plus 70 years via the Berne Convention influenced the Sonny Bono Copyright Extension Act in the United States. The Sonny Bono Term Extension was, in part, a reaction to the participation of the United States in the Berne Convention. Pat Choate, in Hot Property: The Stealing of Ideas in an Age of Globalization (2005), makes a strong case for the need to adapt copyright to the digital age in a way that will safeguard commercial practices and support the public commons.

The digital revolution has prompted legislation to guard intellectual property rights. Some have argued that digital exchange facilitates the flow of knowledge and allows for the empowerment of people. They argue that this contributes to the sharing of information and culture. However, digital exchange of music affects the profits and traditional rights systems of the music and media industries.

At issue is a clear economic reality: Music copyrights are big business. Publishing companies, record companies, and artists assert their copyrights because they have created, purchased, or marketed copyrighted songs. In the 1990s, several domestic and foreign initiatives were taken that attempted to broaden intellectual property protection. These included the 1998 Digital Millennium Act (Public Law 105-304, 112 Statute 2860) and the Sonny Bono Copyright Extension Act (Public Law 105-298 Statute 3287). The legislative intent of the Digital Millennium Act was to correlate world intellectual property law. It would provide for greater protection for digital and electronic works that are under copyright. The Sonny Bono Copyright Extension Act, likewise, was intended to make U.S. copyright more consistent with the Berne Convention in Europe. These acts were preceded by the Audio Home Recording Act (AHRA) of 1992, which permitted the taping of a television program for home viewing later (Public Law 102-307, 106 Statute 264).

However, copyright law was intended not only to promise protection and incentive for the creators and owners of musical works. It was also drafted with an eye to the public good that would come from such creation. Copyright was originally viewed as providing incentive to creators to contribute their works to the public. Recognizing that ideas and creativity are what advance society in its thinking and feeling, intellectual property law sought a temporary right for artists and inventors to their creations. In its initial intent, copyright law emphasized the “temporary” nature of this exclusive right. It was believed that after a writer, musician, or artist held this copyright to a song for a time, it would then enter the public domain. Access to use of the work would then provide a broader benefit to the society.

Those who criticize copyright extensions as contrary to the public good sometimes point to the origins of U.S. copyright. The U.S. Constitution, in Article 1, Section 8, gives Congress the charge “to promote the progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” Thomas Jefferson was instrumental in the article’s creation through James Madison. Jefferson wrote to Madison in September 1789 that the copyright term should be focused on: “This principle, that the earth belongs to the living and not to the dead.” Jefferson, himself a writer and an inventor, wrote to Isaac McPherson on August 13, 1813: “He who receives an idea from me receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me.”3

The drafters of the U.S. Constitution stated that their intended purpose for copyright was to “promote progress of Science and Useful Arts.” They gave little guidance on how this was to be done. However, it is clear that the U.S. approach to copyright focuses upon public benefit more than European copyright law does. As Christina N. Gifford has pointed out, France’s approach to copyright is more author-oriented. However, copyright extensions signed into U.S. law have placed increasing emphasis upon copyright holders, whether writers or companies.

Opponents of the present system of copyrights have been bothered by these copyright extensions. For some, this has created darkness for our cultural heritage by limiting our ability to pass the light of creativity along. It has been argued that the public commons has been shortchanged by copyright extensions in recent years. Today, debate persists concerning the appropriate term of copyright. When the U.S. House of Representatives wrote the Copyright Act of 1976, they noted: “The debate over how long a copyright should last is as old as the oldest copyright statute and will doubtless continue as long as there is a copyright law” (HRR, EP No. 94-1476 [1976]). With copyright extensions, songs do not fall into the public domain. Thus, they are not readily available to other artists and writers to use without authorization, which usually includes a fee. This, some argue, inhibits creativity. Consequently, we now have to confront the issue of how copyright and digital media will impact the creative artist, the consumer, researchers, and educators at the present time and in the future.

The Copyright Act of 1909 provided for a term of 56 years. There would be an original copyright term of 28 years and a renewal of 28 more years. The 1976 act increased this. The term of copyright protection would be the author’s life plus 70 years. In the case of song collaboration, the term of protection would be 70 years from the death of the last surviving author. In 1998, Congress passed the Sonny Bono Copyright Extension Act, adding protection of 20 years to all copyrighted works. The 1909 Copyright Act had conferred common law protection, and the 1976 Copyright Act brought statutory protection. Under the Copyright Extension Act, copyright holders retain their copyright for life plus 70 years. Copyrights are often held by the widow/widower, children, or executors of the author.

Support for copyright extensions has come from large corporations, such as the Disney Corporation, which sought to protect and perpetuate their rights to their cartoon characters, such as Mickey Mouse and Donald Duck. Companies that hold lucrative copyrights from works produced in the 1920s did not want to see these songs, scripts, characters, or images fall into the public domain. So they argued for copyright extensions.

Music publishing companies most often hold song copyrights. Usually, the music publisher contracts with a songwriter for the song he or she has written. The songwriter will receive a writer’s share in such agreements. The music publisher is responsible for exploiting the song. That is, the publisher seeks to get as many “cuts,” or recordings, of the song as possible. When an artist holds ownership to a song this is called a “controlled composition.” Sometimes a producer will control the music publishing rights for recorded songs. Performance fees result from the song being played. Mechanical rights emerge when recordings are sold. Copyright holders hope for continued profits from these copyrights.

Proponents of copyright extensions have cited four major reasons for lengthening the term of copyrights:

  1. The United States needs to maintain global competitiveness in the intellectual property market.
  2. U.S. copyright law should be harmonized with the copyright law of the European Community, under the Berne Convention and other agreements.
  3. Authors now live longer than in the past and need this protection.
  4. In their view, this is a stimulus to new works.

While copyright holders contend that control over uses of a work is necessary, opponents of copyright claim that copyright extensions hinder the common intellectual heritage and cultural progress. At issue is a clear economic reality: Music copyrights are big business. Publishers and artists assert their copyright because they have created and marketed songs. On the one side, the theft of intellectual property has been cited as “a contributing cause to America’s technological decline.” On the other, copyright opponents such as attorney Lawrence Lessig argue that the lack of availability of cultural materials under present copyright law extensions may be diminishing our creative progress as a culture.

Opponents to the Copyright Extension Act argue that U.S. exports of copyrighted material far exceed that of any other country. They claim that it is not possible to fully harmonize U.S. and European law and point out that Europe tends to follow natural law theory while the United States does not. They ask why any copyright should support two generations of an author’s descendants. Finally, they argue, like law professor Dennis S. Karjala, that “a longer term does not automatically drive creative authors to work harder or longer to produce new works.” Rather, this impedes progress. Songwriters and librettists have to get permissions and licenses before they can adapt scripts into musicals. Some works will never be recorded by new artists because of the cost of licenses that are required for them to sing certain songs. Opponents argue further that the Copyright Term Extension Act is contrary to “the public interest in maintaining a rich public domain.”

Those who think that copyright term protection should be less than the life of the author plus 70 years have not persuaded Congress. Others, like the late Sonny Bono and country songwriter Pat Alger, have insisted that copyright is a form of ownership and should be held in perpetuity. Mark Twain once wrote: “You might just as well, after you had discovered a coal-mine and worked it for twenty-eight years, have the Government step in and take it away.” Jack Valenti, Motion Pictures Association of America president at the time of the Sonny Bono Extension Act, supported long-term copyright provisions and suggested the phrase “forever less one day.”

The Sonny Bono Copyright Extension Act went into effect in 1998, not long after the songwriter-performer turned Palm Springs Congressman died in an unfortunate skiing accident. This act of Congress became Public Law 105-298 and extended the term of copyright for 20 years. It effectively stopped all 1920s copyrights from 1923 and afterward from falling into the public domain until at least 2019. Thus, it kept the Gershwin Trust from having to give up some of George and Ira Gershwin’s copyrights, and it saved rights to Mickey Mouse for the Disney Corporation. As a result, as Michael Choate points out, “Happy Birthday to You,” copyrighted in 1935, will likely continue to garner an estimated $2 million or more in royalties until 2030. It will do so even if the BMI representative or the ASCAP man fails to raid your backyard party and ask for a payment. AOL-Time Warner can count on getting at least half of that amount.

Some present debates continue to revolve around the 1998 Sonny Bono Copyright Extension Act, which added 20 years to the term of copyrights retroactively. This lengthened the term from 50 to 70 years after an author’s death.

Copyright and Digital Music

Copyright has had to adjust to the “digital revolution” in recording that began in the late 1980s. At that time, computers entered recording studios, and the studios began to put away their reel to reels and tape-splicers. They began to set up digital editing programs. Musicians also turned toward sampling. Sampling is the process of “quoting” earlier music by dubbing portions of previously recorded music into newer recordings. Sampling uses the song from that previous recording. With the appearance of digital technology sampling became prevalent. However, sampling may infringe upon the copyright license of the music publisher and upon the mechanical license of the record company. Suddenly, digital technologies began to pose some dilemmas, especially in the area of “mechanical” rights: the rights that are connected with dissemination of sound recordings. With the appearance of the Internet and digital media, companies and individuals with copyright interests sought means for intellectual property rights to be further defined.

Individuals who are concerned with issues of fair use and the public domain also point to the genesis of the Digital Millennium Act. On July 7, 1994, a working group for the Clinton administration led by Bruce A. Lehman issued their “green paper”: a green-covered document that stipulated that movie makers and other content providers could charge for uses of their products. It limited the fair-use standards that allowed writers, librarians, scholars, and artists to copy a small portion of a work for education, illustration, or documentation purposes. It further recommended that Internet providers be held responsible for what was transmitted over their wires to their customers. The proposal prohibited the making of backup copies of purchased CDs and DVDs. The opposition mounted by Internet providers prompted revisions. Meanwhile, it appears that the movie companies had overlooked the now multimillion dollar business potential of DVD rentals.

In September 1995, the final version of the Lehman group’s document appeared under a white cover: the “White Paper.” The reaction to it was immediate. Internet providers rejected the idea of being held liable. Law professors argued that the proposal worked against the public good. The Home Recording Rights Coalition went to work. Library associations cringed at the prospect of having to obtain permissions before making digital copies of works in libraries. In 1996, the proposed legislation stalled. In Congress, Representative Rick Boucher (D-Virginia), an experienced intellectual property attorney representing a rural western district in Virginia, fervently opposed the legislation, to no avail. The World Intellectual Property Treaty enacted legislation that made it so that the Internet providers would not be held liable for what was transmitted over the Internet. The librarians were not so fortunate. The Digital Millennium Copyright Act became law on October 31, 1998.

It remained a technical violation to make a cassette or CD copy of a CD recording that one already owned. Further, it was illegal to download any song from the Internet, although this was often being done. Such electronic distribution, called “file sharing,” was illegal. The reason for this prohibition was that each of the songs was “owned” by a copyright holder; writers had invested time, thought, musical training, and qualities of talent and creativity into the creation of these songs. Publishers and record companies had invested money to exploit, record, and distribute these songs. However, now recordings were being duplicated by consumers without mechanical licenses from the record companies who owned the masters for these recordings. No performance royalties were being collected and distributed from downloads to the publishers and writers who were the copyright holders of these songs.

On December 7, 1999, the Recording Industry Association of America (RIAA) sued Napster, which claimed some 38 million users worldwide. Napster was charged with damages of $100,000 for each song it had copied and made available. After all, the RIAA argued, no royalties were going to the artists and writers of these songs. In July 2000, a Federal judge issued an injunction to shut Napster down. The idea was put forth to transform Napster into a subscription-based company that would pay artists and companies royalties. The idea did not easily catch on, and Napster folded, selling its assets and its name at auction. In April 2003, Steven Jobs of Apple Computer put forth iTunes, a business model that would allow song downloading for 99 cents per song, or $9.99 for an album. This model has since been replicated many times over by other companies.

The lawsuits against users of music on the Internet increased in 2003, as music companies sought to protect their profits. Their objective clearly was to educate music listeners that copyrights existed to these songs. A royalty system, handled by the music licensing agencies ASCAP, BMI, or SESAC, was attached to the playing of them. The goal was to make song swapping risky business carrying serious penalties and to encourage consumers to go through legal vendors on the Internet when downloading songs. Sadly, the lawsuits of September 2003 included some people who had likely been ignorant of matters such as performance rights societies, song publishing contracts, and U.S. copyright law. For example, a Duluth, Minnesota, Federal jury fined Jammie Thomas, a mother of four, $222,000 for 24 songs she took from the Kazaa file-sharing program. Some 20,000 people have been sued by the Recording Industry Association of America (RIAA). Most have settled for about $3,000 per song. The RIAA asserts that the lawsuits are intended “to defend the constitutionality of the statutory damages provision of the copyright act.”

Universal Music Group sued MySpace, the social networking site, in November 2006. YouTube was also named for infringement of Universal Music copyrights. Universal took a stake in it before it was sold to Google for $1.65 billion. In 2006, Warner Music Group entered a court battle with Anywhere CD. Warner Music Group dropped its suit against the Imecon music-sharing site in exchange for a revenue-sharing agreement.

Music corporations turn to copyright law to protect their investments. Copyright extension works favorably for music publishers who have commercially successful songs of lasting value. It is the goal of a music publisher to “exploit” copyrights: that is, put them into use in the market. A century ago, this meant distribution of sheet music and piano rolls. Today, it primarily means getting a “cut” on a recording. The copyright owner generally agrees to a standard license to record. This tends to allow for openness as to how the song will be treated in a recording session. However, this is a mechanical license, not a copyright. The copyright itself remains with the music publisher or with the original songwriter.

Songwriters and music publishers hold copyrights. Frequently, a music publisher will copyright a song following a contract with its writer or writers. Copyrights may also be purchased by music publishers. Songs that have been popular may be among these acquisitions. When one publisher’s catalog is sold to another publisher, often the copyrights, rather than the company’s stock, are transferred. The buyer usually pays for copyrights at about five to eight times the annual performance rate assigned to those songs, as determined by ASCAP and BMI payments. There are statutory copyrights and common law copyrights. Writings that are not fixed in print form or in phonograph recordings are protected by common law copyright. As digital sources, cable television, satellite radio, and other media have emerged, new means of generating revenue from copyrights have appeared. These trends are likely to continue in the future. Amid the vicissitudes of the music business, copyrights remain a valuable investment.

Copyright as Protection from Infringement

Copyright acts as a form of protection for songwriters and publishers. It guarantees that they have exclusive rights to the use and distribution of these songs. Infringement occurs when someone who is not the copyright holder makes public use of the song without permission. Allegations of copyright infringement have produced several famous legal cases.

In November 2007, country singer Toby Keith won an infringement suit that had been filed against Keith by songwriter Michael McCloud, claiming that “I Love This Bar” was like his own song. Keith argued that the individual who filed the suit was trying to make money off of him.

Beyoncé’s song “Baby Boy” won a lawsuit by songwriter Jannifer Armour of Minnesota, who said that she had submitted music to Matthew Knowles, president of Music World Entertainment, a company connected with Columbia Records. She alleged that “Baby Boy” was her song “Got a Little Bit of Love for You” and pointed out that the phrase “Every time I close my eyes” appears in both songs. However, on September 21, 2006 a Houston judge, Nancy Atlas, found the songs to be in different keys, tempos, and melodies and “substantially dissimilar.”

In one of the most well-known cases, George Harrison’s song “My Sweet Lord” (1970) was found to have “subconsciously” drawn upon Ronald Mack’s “He’s So Fine,” performed by the Chiffons. The court said: “His subconscious knew it already had worked in a song his conscious did not remember.” This was a handy piece of psychoanalysis. Of course, one might ask if the case would have been brought if Harrison were not a former Beatle and his song had not been #1 on the charts for four weeks in 1970.

In 1994, Michael Bolton and Andy Goldmark’s “Love Is A Wonderful Thing” was found by the Ninth U.S. Circuit Court of Appeals in California to have shared elements with an Isley Brothers song from their Let’s Go album. Lyric, pitch, musical phrasing, rhythm, and hook were all found to be similar. Thus, $5.4 million was awarded. Bolton and Goldmark sought to overturn the ruling in 1999. The Supreme Court refused to hear the case. Ronald and Marvin Isley have been receiving 66 percent of the song proceeds from royalties and 29 percent of all proceeds from the Bolton album Time, Love, and Tenderness on which the song appeared.

In 1994, attorneys for country vocalist Emmylou Harris argued against infringement of her recorded work in Harris v. Emus Records (1984). The 1976 Copyright Act had provided a limitation on the exclusive right to record musical compositions. Mechanical licenses, the law asserted, are in effect when an artist who holds a copyright distributes a recording to the public. In the Harris case, a California court found that the owner of an unlicensed master, who had already issued this, could no longer sell it. Rather, he could only “listen to the master in his own living room” and could make no other use of it.

Andrew Lloyd Webber spent $2.3 million in legal fees after 1990 to defend against religious folksong writer Ray Repp’s claim that the theme of Webber’s “Phantom of the Opera” was drawn from his song 1978 “Till You.” The U.S. Federal District Court in Manhattan found in favor of Webber.

These issues of copyright infringement are fairly common in the music business. While in George Harrison’s case infringement was considered “unconscious,” some acts of infringement are clearly willful. When a work is used without obtaining necessary permissions this use is illegal. Further, there are times when someone claims that a work is his or her own original work, and it can be proven to be a copy of another writer’s work. Usually anyone who is charged with such infringement will deny having had access to this copyrighted song. However, if the song has been made available through performance, recordings, Internet distribution, or radio broadcast it is possible to demonstrate access. Some publishers are hesitant to listen to unsolicited new material because of a concern that a songwriter might claim that a published song sounds similar to their own and that the publisher had access to the material.

Royalties: Money from Copyrights

Copyrighted and published music is connected with a performance rights agency. In the United States, there are three of these: ASCAP, BMI, and SESAC. ASCAP collects about $510 million annually for its members, which are publishers and songwriters. About a quarter of this amount derives from foreign sources. BMI collects from $450-500 million annually. SESAC, the smaller performing rights agency, collects about $5 million.

Song copyrights that are used in recordings that receive media airplay are eligible for royalties. The performance rights organizations that administer this are a primary source of income for music publishers and songwriters. These organizations track a wide range of music providers from radio stations and television stations to the Internet, hotels, casinos, and concert venues.

ASCAP emerged early in the twentieth century as a membership organization that was encouraged by composers such as Victor Herbert. Today, Victor Herbert’s piano sits one floor below a winding staircase that leads to the attorneys’ rooms atop the ASCAP building across from Lincoln Center for the Performing Arts in New York. The organization has about 60,000 members, including more than 30,000 music publishers. ASCAP issues a blanket license for its catalog to all radio and television stations. The station’s gross receipts are calculated, and a rate of under 2 percent of the station’s adjusted gross receipts is charged. ASCAP also distributes royalties to songwriters and publishers for online uses of copyrighted and licensed songs. ASCAP has “RateCalc” to help Internet users to figure out their ASCAP licensing fees when online. A basic license and a rate schedule are issued after the inquirer responds to a series of questions.

BMI (Broadcast Music, Incorporated) was established in 1940, prompted by the widespread increase in radio. Today, BMI represents more than 3 million copyrighted and published works. Some 140,000 songwriters and 60,000 music publishers have affiliated with this performance rights organization. BMI is a nonprofit organization that works primarily with blanket licenses and has a formula for charges to broadcasters. The BMI Web site has a Hyper Repertoire database for searches for its songs, songwriters, and publishers. It uses “On Ramp” technology services, a Web site that allows direct downloading of songs for fees.

SESAC is a good deal smaller. It began as a private licensing company in 1930. The SESAC catalog comprises about 200,000 to 250,000 songs and has about 1,000 affiliated publishers and 1,000 writers connected with the organization. To determine music use charges, SESAC gauges the market population of a radio station and its advertising rates. SESAC also tracks cable television, the Internet, college concerts, hotels, and other places where music is played.

The largest users of music copyrights are the record corporations that also have affiliated movie companies: Warner/Chappell, SONY/ATV, and Universal Music Group.

The interweaving of songs with film and television has become pronounced partly because of the profits that can be generated from performance fees, synchronization fees, and mechanical fees.

Fair Use and the Public Domain

Songs written and published before 1922 have entered the public domain. Most songs written after this date remain under copyright, unless their copyright has not been renewed. The public domain consists of compositions that are considered part of the world’s cultural heritage.

Educational uses of copyrighted works are governed by a doctrine of “fair use” that some experts say has become attenuated in recent years. Fair use concerns the public’s right to make a reasonable use of a part of a copyrighted composition. Fair use only gained force in 1976. Prior to this it was generally recognized that one could include brief passages from published works within criticism, or for educational purposes. A “four-point test” was established in the 1976 U.S. Copyright Law in which nonprofit educational uses were favored. The law stated that one could use such material for criticism and commentary, or for educational purposes, scholarship, and research. A four-point rule held that fair use concerned: (1) the purpose of the use, (2) the nature of the copyrighted material, (3) the portion or amount used in relation to the whole of the work, and (4) the effect on the market for that copyrighted work.

Fair use affects musicians, music educators, and those who write about music. There are times when musicians may wish to quote a previous composition within a new song, so he or she may play a riff or hook from it. However, as music business attorney William Krasilovsky notes, the four bar or less rule is a myth. One cannot take four distinctive bars from “Jumpin’ Jack Flash” or “Smoke on the Water” to pay tribute to the Stones or Deep Purple. One must pay for this. Musicians who like to play cover tunes are also affected. The larger venues they play in have to be licensed by BMI or ASCAP, and these musicians cannot record their covers without a license through the Harry Fox Agency, usually costing money. For songwriters, there is no “four bar rule” for fair use in including another song within one’s own composition. Rather, what matters is the intended use of the song and this reference. The use of short extracts of melody or harmonic and rhythmic patterns are often viewed by courts as not “fair use.”

Educators are likewise affected by fair-use laws. There are guidelines that allow for making a single copy of copyrighted music for music education. Music instructors are permitted to make use of partial excerpts. They can distribute a copy to each student. However, these copies must not exceed 10 percent of the work. So, too, are music arrangers affected by fair use. Arrangements of music from the public domain may be copyrighted. If made with a copyright owner’s consent, arrangements that meet a standard of originality may also be copyrighted. However, usually the musical arrangements made on recordings cannot be copyrighted. Rather, only the underlying song is. Record producers are sometimes involved as arrangers and exert creative influence in recording sessions. Unless a music arranger is connected with the originating writer or publisher or with an affiliated record company he or she will probably not obtain a share in the copyright for a song. These arrangers, instead, receive a payment or salary for their work on a project.

Music education is also affected. A musician who copies records for the purpose of learning to play the songs on the record has to be able to show this purpose. This may be possible if the musician is enrolled as a full-time music student. However, many of the best pop and jazz artists are self-taught. Likewise, there are few schools for the study of hip-hop and rap. Musicians who copy recordings for study may be hard-pressed by our legal system of copyright to provide evidence of intent if called upon to do so in a court of law.

Similarly, musical theater writers are affected by copyright. Rights must be secured before any play or film can be adapted to the stage for a musical. This may discourage some writers and composers from attempting such an adaptation. One cannot insert any copyrighted song into a film or a stage musical without paying mechanical, performance, and synchronization rights. Also, writers who write about music cannot easily quote song lyrics. These uses require permissions. Writing for and obtaining such permissions is a time-consuming process. Often such uses require payment.

Our cultural heritage is affected when songs that are still copyrighted fall out of public use. These songs become harder to find. The general public, some argue, tends to lose a bit of its sense of the culture of the 1930s, for example, when most of the songs of that time are out of print and securely hidden away in special collections.

How to Copyright a Song

With the Copyright Act of 1976, all common law works were brought under Federal statutory provisions that became effective on January 1, 1978. The law says that whenever a work has been “fixed” in a tangible form it may be copyrighted. That means if it is on paper, on record, on a disk, or in some other format, it can then be deposited with the Library of Congress and the U.S. Copyright Office. The work does not have to be published.

The 1976 Copyright Act provided that there be no requirement for copyright registration. However, such registration is useful to songwriters and music publishers. One may copyright individual songs or collections of several songs, albums, audiovisual material, recordings, remixes of derivative works authorized by copyright holders, and album liner notes. Liner notes that are lengthy may be copyrighted using Form TX (for text). Usually songs are copyrighted using Form PA (performing arts), and recordings are copyrighted using Form SR (sound recording).

Copyright claims are registered with the Copyright Office by including a deposit of the work, usually two copies. This may be a recording of a compact disc or a cassette tape, or a printed manuscript copy. This work does not have to be published. However, the deposit should represent “the best edition of the work.” Some 50,000 performing arts works are registered annually. Any recording that is offered for sale and distribution is considered a publication. However, a live performance of a song is not a publication. The work has to be in a tangible, physical form for copyright to be in force. According to the 1976 Copyright Act, musical compositions must be “fixed” in recorded form, or in manuscript form.

To demonstrate creation and ownership of an unpublished song, songwriters sometimes mail a copy of their song to themselves by registered mail, or in an envelope that they expect will be postmarked by the post office. A formal copyright through the Copyright Office generally provides better protection for the songwriter than this self-mailing method. Copyright registration provides formal recognition and a copyright notice.

The U.S. Copyright Office makes available several forms for free. These forms can be obtained on the Copyright Office Web site: (http://www.loc.gove/copyright/forms). Form PA is for registering performing arts works. This may include musical works, plays, movies, choreography, and audiovisual materials. The SR form is used for sound recordings. If someone has created a musical, he or she needs to fill out only this form. The TX form is for a non-dramatic literary work, like a novel, or a book of lyrics. The VA form is used for visual arts, including record covers, graphics, fine art, photographs, prints, posters, and advertisements.

A copyright notice (©) was required for all public copies of a song following the 1976 Copyright Act. In 1988, the United States joined with the international Berne Convention by enacting the Berne Convention Implementation Act. This made the required notice of copyright (©) largely unnecessary. However, music business attorneys continue to advise that copyrighted songs carry the copyright symbol on them. The songs of American composers and lyricists are now protected in all of the countries that have signed the Berne Convention. Interestingly, titles cannot be copyrighted. However, the lyric may embody the title in an important part of the song. The title may also be the title of the album on which the song appears. Any title of this nature must be sufficiently unique for any rights to be asserted.


The future of copyright, many say, will be best promoted through a dialogue between music companies, music artists, and those in sectors of the public who are concerned with fair use and the public domain. In balancing the rights of copyright holders with the needs of artists, educators, and other music users, it appears necessary to reform our present copyright system. In a digital media environment, it is necessary to effectively preserve intellectual property protections and the commercial viability of copyrights. However, it is also important that we broaden the discussion beyond issues of piracy to include reflection upon our common inheritance. We need to remain true to the original purposes of copyright, so that: (1) Creative work will be remunerated and preserved; (2) Creative work can be made increasingly available for creative uses and cultural purposes; and (3) We can build further creative work upon it. In this way, the products of human genius and workmanship can continue to contribute to our cultural memory and to the public good for many generations to come.