Patent and Copyright Laws are made by Congress as provided for in the United States Constitution. The founders of our country recognized that for the country to make progress, inventors, Authors, Composers, and artists would need protection for their intellectual property, especially regarding their rights to commercialize and profit from their creative work.

They used the term “useful arts” and were clear that by passing strong protective laws Congress would provide for the nation’s future economic growth. There is indeed a strong correlation between strong copyright laws and economic growth in countries around the world, and most countries have laws in place that model what we have in the United States.

More recently, Congress passed the Music Modernization Act of 2018 (MMA). This law was the first major legislation to affect music royalties passed since the Copyright Act of 1976. The act is favorable to musicians and should increase payments to many Songwriters and Producers, especially from streaming platforms. (See my article explaining what’s in the MMA here.)

With music, there are two copyrights which apply. The first is for the song or the composition itself. This copyright is created at the moment the song is written down or recorded. There is no need to register it, although there are some additional benefits to be had from doing so.

It’s important to know that in order to be protected by this copyright, the song or composition must be “fixed” in some way; this means you must make either a written copy, a recording, or a digital file. If you make up a song and perform it, this by itself will not qualify for copyright protection.

This copyright is known as the song copyright, and sometimes referred to as the “compulsory” copyright because it is created automatically with the fixing of the work on paper, in a digital file, or in a recording.

The second copyright pertains to the specific recording of the song, sometimes called the master or mechanical copyright. Typically, the Songwriter or Composer will own the song copyright, while the record company or Producer may own the master. Independent musicians who produce their own recordings for commercial use can own both copyrights.

Some of my students get hung up on all the jargon. Terms like Intellectual Property and Mechanical Royalties can seem intimidating to the neophyte. It’s worth taking the time to research meanings as the terms are commonly used, and it’s also crucial to seek advice from qualified legal professionals, such as an Entertainment Attorney when dealing with specific cases.

There could potentially be a lot of money at stake, and many lawsuits and conflicts can be avoided by getting all your ducks in a row, legally.

The scope of this article doesn’t allow for a full glossary of terms, but I will provide just a few quick and dirty definitions of some important terms (most definitions are from the Oxford Dictionary or Wikipedia):

A work or invention that is the result of creativity, such as a manuscript or a design, to which one has rights and for which one may apply for a patent, copyright, trademark, etc.

A government authority or license conferring a right or title for a set period, especially the sole right to exclude others from making, using, or selling an invention.

The exclusive legal right, given to an originator or an assignee to print, publish, perform, film, or record literary, artistic, or musical material, and to authorize others to do the same.

A symbol, word, or words legally registered or established by use as representing a company or product.

A sum of money paid to a patentee for the use of a patent or to an Author or Composer for each copy of a book sold or for each public performance of a work. (Note: sometimes also called “Residuals” because the value “resides” in the work.)

A Music Publisher (or publishing company) is responsible for ensuring the Songwriters and Composers receive payment when their compositions are used commercially. They also secure commissions for music and promote existing compositions to recording artists, film and television.

A licensing agreement between a music user and the owner of a copyrighted composition (or song), that grants permission to release the song in an audio-only format (interactive audio streams, digital downloads, CDs, vinyl).

Music syndication is the license to use music in broadcast television programs, radio programs, movies, advertisements, video games, or other visual media.

Note that there is a difference between a patent and a copyright: patents cover inventions while copyrights cover creative works. When we are talking about music as intellectual property (IP) we are discussing copyrights, whereas if someone invented a new musical instrument they would seek a patent. Patents are sometimes called “hard IP” while copyrights are referred to as “soft IP.”

The question of what is covered by a copyright has been the subject of countless lawsuits. While this is great business for Lawyers, it can be costly for musicians. Many big-name acts have been sued for copyright infringement, some successfully, some not. It can be very difficult for a judge and jury to understand and decide about infringement cases, so often they will hire experts to explain exactly how the law is supposed to work and what music or other creative content is protected.

For example, titles of songs, rhythms, musical styles, and chord progressions (harmony) have all been deemed to be not copyrightable. Melodies and lyrics are protected, but short snippets may not be. The courts don’t always agree on what should be covered. For example, there have been many high profile cases related to sampling, and there has been a split between the 6th and the 9th Federal Circuit (appeals) courts.

On the one side the court applied the “Bright Line” rule, which means use of any sample from a previous recording is illegal. The other court claims that a sample must be recognizable to the “average” person (whatever that means) in order to be infringement. This means if you modify a sound or sample from another recording to the point it isn’t recognizable by most people, you are not infringing. This is a question which ultimately must be decided by the Supreme Court.

Since music is an art form which borrows heavily from what came before, any lack of clarity in the law poses potential problems for musicians, Songwriters, Producers, and Composers. What exactly can we use? What should we avoid using? In some cases it might be clear, but many situations will feel a bit fuzzy as to what’s allowed.

The upshot of all this is that you should take the necessary steps to protect your creative output. If you write songs, make sure to record them and/or write them down, so that they are copyrightable.

It might be a good idea to start your own publishing company, which isn’t too hard to do. When you start putting out your music, you want to feel confident that you will be paid your rightful ownership fees from those who use your music. It’s up to you to learn all you can about music copyrights and take the steps to protect your work.

If you are planning to make a living from your music, it’s strongly advisable to form a solid business relationship with a specialized Entertainment Attorney. There are many capable Lawyers who can help you understand and act appropriately around copyright issues, and they are worth the money they charge.

If you don’t have income yet from your music, it’s still not too early to sit down with an Attorney for a consultation. Check with other music professionals to see who they recommend in your area, and also check the listings maintained by your state Bar Association. You will need someone with a specialty in entertainment and intellectual property law, and it is always good to get a referral.

For those interested to know more, especially about sampling and the law, I recommend the 2009 PBS documentary Copyright Criminals which gives a very thorough analysis of how copyrights work in the music industry.

There are also many good books, such as Donald Passman’s All You Need to Know About the Music Business, John Kellogg’s Take Care of Your Music Business, and Bobby Borg’s Business Basics for Musicians. Make sure you get the most recent edition of any books you buy, since there are always new developments in the industry and the law.

No matter where you are in your music career, it will take some time, diligence, and effort to stay on top of your music business. Learning all you can about music copyrights and the law is a great way to set yourself up for success and avoid some common pitfalls made by many musicians.