Music Law 101: What Does Copyright Law Protect?

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.

Copyright law can be confusing. This 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.

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.

The Music Law 101 series is provided by Coe W. Ramsey and Amanda M. Whorton of the law firm Brooks, Pierce, McLendon, Humphrey & Leonard LLP. Brooks Pierce provides sophisticated and strategic counsel to a wide variety of clients in the entertainment industry, including artists, musicians, songwriters, record producers, DJs, artist managers, radio stations, television stations, new media companies, record and publishing companies, film and television producers, advertisers, actors and reality TV talent, radio talent, and literary authors and publishers. The Music Law 101 series provides a survey introduction to the laws in the United States relevant to the music industry, is not intended as and shall in no way be construed as legal advice or a legal opinion on any specific set of facts or circumstances, and shall not be construed as creating an attorney-client relationship.

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28 comments

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  • Rebecca Dawson - July 26, 2019 reply

    I’m writing a book for teens. Can I use words from songs to speak to them? Can I ask that they listen to a particular song for comfort?

    Latrice - August 7, 2019 reply

    At the very least, I believe you’ll have to site the author. Just like when writing papers in college.

    Danish Ahmad - January 6, 2020 reply

    search google

    Hershel Collins - February 21, 2020 reply

    Do I need permission to sing a song gospel no money involved if so how can I get in touch with the writer ?

  • Anne-Marie McPhillips - August 25, 2019 reply

    My chorus would like to use just the notes from the first 4 bars of a Christmas song in the design of a Christmas ornament. The ornament would be sold by my choral group, but there is no associated sound. Is that legal?

  • Neil W Hensley - September 9, 2019 reply

    I was thinking of covering songs in a new way, was wonder what the stipulations of using the same instrumental and vocals but labeling it as a cover, and if making money off of this would be an infringement, and if not, if I would have to pay the artist any amount.

    Claude B. - June 7, 2020 reply

    I’m wondering the same. Would it be considered copyright infringement to arrange several song covers by the same artist on a new album eñtitled “x band played on different instruments”? Would you need permission from the original artist? I mean it’s often done- for example when one artist covers a song by another artist.

    Pat Rios - June 29, 2020 reply

    Who can I email to use Eminem’s song “Not Afraid” on a video to promote a cause.

  • Zac Pugh - October 1, 2019 reply

    I am hoping to take jazz standards that are not in the public domain, re arrange them and release them as an educational study, but this would be something I would like to sell and make my own audio files and sheet music. What do I need to consider for this? Say the song was Blue Bossa by Kenny Dorham and released on an album by Joe Henderson in 1963.

  • sandi pear - October 13, 2019 reply

    would like to use first two lines of music from heigh ho off to work we go.different words for a jingle how do i apply to use it and is it possible?

  • Asa A. - October 29, 2019 reply

    How long do song copyrights last? I’ve written a song and used the tune of Good-Hearted Woman (in love with a good timin’ man) from the late ’60s. What can I do with that other than just play it for friends or in local concerts? What would I need to do in order to record it?
    Thanks very much.

  • nhlakanuipho - November 26, 2019 reply

    im a song writer i want to protect it what must i dop

  • Liz - December 29, 2019 reply

    After reading a children’s book to my baby a couple times, I was inspired to compose music rising the book to her. It has become her main lullaby and I was thinking of recording it and sharing it. I’m wondering if I can do this and cite the author and book, or if I need to get permission. If the latter, how can I go about getting that permission if the author is deceased but the book copyright isn’t in public domain?

  • Indemental Media - January 3, 2020 reply

    I need this information at that hands of 12 to 20 year olds at NASHVILLE’S PUBLIC LIBRARY STUDIO project. CRITICAL DEVELOPMENT IS AT HAND

  • Dung Zang Nyam - January 16, 2020 reply

    Just yesterday, I recorded a single and I’m wondering what must I do before official release on relevant media platforms?
    Thanks!

  • Christopher Easterling - January 20, 2020 reply

    1. I have written a libretto. I have registered it with the WGAW. What else do I need to do to protect the intellectual property rights?
    2. The same question applies for a children’s story that might get picked up as an animated feature.

  • Crystal - February 28, 2020 reply

    With the lyrics— If i were to type up just the lyrics and put into a packet for a group of kids to sing around the campfire at camp- how would the copyright laws apply here? We arent selling anything and its just for fun. there were some songs that were in our packets in the past but in a recent one they were removed because they have copyright so now we are encouraged to learn the songs on our own. How does this differ from printing lyrics from lyrics.com or azlyrics.com type of sites? are there cases where someone might have had permission granted to do this type of packet? how would that be documented and where? I appreciate any clarification you can provide me with.

  • Samadur Rahman - March 13, 2020 reply

    Great post

  • Laura - April 23, 2020 reply

    I am from the UK ( hoping it’s the same rules)?
    I have written my oven lyrics but used a kareoke backing track of a pop song for a school I work at.
    Can I perform the song, without a licence as it’s my lyrics?

    Cheers x

  • kabir singh - May 16, 2020 reply

    Copyright. Copyright is a legal means of protecting an author’s work. It is a type of intellectual property that provides exclusive publication, distribution, and usage rights for the author. This means whatever content the author created cannot be used or published by anyone else without the consent of the author

  • Joseph - May 22, 2020 reply

    Am I allowed to rap over an instrumental version of a song?

  • Rolanda Shaw - May 28, 2020 reply

    How do u go about copywriting songs if the artist is deceased?

  • George - May 28, 2020 reply

    If there is a copyrighted song with no lyrics…

    Can you write a lyric/poem to the rhythm of the song that has no lyrics…without violating the copyright?
    To be exact: Can you use the lyric/poem as a stand alone poem …. as long as you don’t put the poem to music without the permission of the composer?

  • Claude B. - June 7, 2020 reply

    I’m wondering the same. Would it be considered copyright infringement to arrange several song covers by the same artist on a new album eñtitled “x band played on different instruments”? Would you need permission from the original artist? I mean it’s often done- for example when one artist covers a song by another artist.

  • someone - June 26, 2020 reply

    can using the same tunes part of copyright

  • Nenu-B - July 26, 2020 reply

    This is the best post on my career I have found today. Honestly, your a great writer.

  • Young far - August 31, 2020 reply

    I like to listed dancehall music ,this is why I was started to make muxic

  • Hawaii - September 27, 2020 reply

    Best article today٫thanks alot to the post author

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