Music Law 101: Protect Your Music, Protect Yourself

Brooks Pierce

Brooks Pierce

We are pleased to introduce a new blog series.  Music Law 101 will be a recurring bi-weekly series consisting of posts covering a wide variety of legal topics relevant to artists, musicians, songwriters, producers, and others in the music industry.  Topics will include information on copyright law, trademark law, the right of publicity, laws relating to agents and managers, and music contract law.

With the Music Law 101 series, we intend to break down legal jargon to make the concepts useful to you as you create, perform, and distribute music.  We want to help you Protect Your Music and Protect Yourself.

What Does Copyright Law Protect?

Copyright law can be confusing.  This inaugural post provides an introduction to copyright law for musicians and addresses the often misunderstood issue of what exactly copyright law protects.

The most important concept in music copyright law is that each single piece of recorded music involves two distinct rights:

  • The first right protects the underlying musical composition—that is, the specific arrangement and combination of musical notes, chords, rhythm, harmonies, and song lyrics. The law refers to this first type of copyright as a “musical work.”  This interest is also sometimes referred to as the “musical composition” or the “song.”
  • The second right protects the actual recording of a musical composition, which copyright law refers to as the “sound recording.” This interest is also sometimes referred to as the “master” or the “recording.”

While an unsigned songwriter who performs and records his or her own original songs owns both the musical work and sound recording copyrights in the song, it is often the case that the two distinct rights are owned by separate individuals or entities.  In general, music publishers own or control the musical work copyright, and record companies own or control the sound recording copyright.

A music copyright, whether as a musical work or a sound recording, is created immediately upon creation and satisfaction of the following elements:

  • It must be an original work of authorship; and
  • It must be fixed in any tangible medium of expression, such as written sheet music, a MIDI file, or a digital (or analog) recording.

Thus, for example, as soon as an original song is written down as sheet music or recorded as a MIDI or computer sound file, a copyright is created.  It is not necessary to publish the song or register a copyright with the U.S. Copyright Office.  However, as we will discuss in a future blog post, registration is required to obtain certain benefits under the Copyright Act.

While copyright protection generally arises immediately when a new song is recorded, the new song must be original.  That is, the work must be original in the sense of being the creative product of the author’s own efforts.  There is no requirement that it be original in the sense of being novel.  “Original” means only that the work was independently created and that it possesses at least some minimal degree of creativity.  “Originality” doesn’t mean a work of extraordinary genius.

While there are no bright-line rules, some courts have held that rhythm and harmony are generally in the public domain and not “original,” while melody is often determined to be “original” and protected by copyright.  And, courts have held that contributions by producers and engineers to the creation of sound recordings, including the processing of sounds and the balancing, equalization, and integrating of vocal and instrumental into a blended whole, can be protected by copyright.  On the other hand, musical style (i.e., the style of reggae), themes, or ideas in the abstract are not protected by copyright.

Often in copyright infringement actions, the defendant will argue that the plaintiff does not have a copyright because the song at issue was not original.  For example, in 2007, 50 Cent was sued over his use of the line “Go shawty.  It’s your birthday” in the song “In Da Club.”  The plaintiff, a music publisher, claimed that the lyric was copied from its song “It’s Your Birthday,” which was written by Luther Campbell (aka, Luke Skyywalker).  However, the court ruled for 50 Cent, holding that those lyrics were not original because the phrase was a common chant at hip hop events and nightclubs, had appeared in other prior songs, and Luther Campbell admitted that he didn’t create the phrase.  So, if a song or lyric is not original, it’s not protected under copyright law.

Similarly, words and short phrases are generally not copyrightable.  A court held that the phrase “Everyday I’m Hustlin” used in the song “Hustlin’” by Rick Ross is “a short expression of the sort that courts have uniformly held uncopyrightable.”  As such, the use of the lyrics “Everyday I’m Shufflin” in the hit song “Party Rock Anthem” by LMFAO was not an infringement of the Rick Ross song lyrics.  Similarly, in dismissing a lawsuit filed against Taylor Swift, a court recently found that the lyrics “Playas, they gonna play / And haters, they gonna hate” were “too brief, unoriginal, and uncreative to warrant protection under the Copyright Act.”

In sum, music copyright law protects musical works and sound recordings that are original works of authorship and fixed in any tangible medium of expression.  In our next Music Law 101 post, we will explain how authorship and ownership of music copyrights are determined.

This post originally appeared on the ReverbNation Blog.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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