So you’ve already written and recorded a song and determined who owns it, but now what can you as an owner do with it? What rights in the song do you have, that no one else does?
The owner of the copyright in a work has certain exclusive rights in that work, rights that no one else but the owner has, including the rights to:
- Reproduce/copy the work;
- Adapt and prepare derivative works based on the work;
- Distribute copies of the work;
- Perform or display a musical work publicly; and
- Perform a sound recording publicly by digital audio transmissions.
In general, this means that the owner of a music copyright can control, for example: (1) whether copies, including CDs and MP3 files, can be made of the song; (2) whether the song can be rearranged, remixed, or recorded with video; (3) whether copies of the song can be sold or downloaded; (4) whether the song can be performed on radio stations, in nightclubs, in stores, in restaurants, or in other public establishments; or (5) whether the song can be transmitted by interactive streaming services such as Spotify and Apple Music.
There are certain limitations under the Copyright Act, known as “statutory” or “compulsory” licenses, which limit these exclusive rights in certain circumstances. For example, one of these statutory licenses permits non-interactive streaming services, including satellite radio and internet radio stations such as Pandora, to transmit sound recordings without permission from the copyright owners, subject to certain conditions (including payment of royalties). We will discuss statutory licenses in a later post.
Notably, the public performance right for sound recordings only applies to digital audio transmissions (e.g., Pandora, SiriusXM, Spotify, etc.). It does not apply to public performances generally, or to broadcast transmissions by AM/FM radio stations. While the Music Modernization Act currently pending in Congress would change many areas of the Copyright Act (which we will discuss in a later post), it does not create a public performance right for AM/FM broadcast transmissions of sound recordings. Most other countries, however, do recognize a public performance right for sound recordings broadcast on AM/FM stations.
The rights under the Copyright Act do not include the right to credit (e.g., producer credits, songwriter credit, etc.). A right to credit can generally only be established by contract. However, in certain circumstances, false or misleading credits can be protected under trademark law.
One of the exclusive rights, the right to create derivative works, is worth exploring in more detail. A “derivative work” is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a “derivative work.” For example, a sound recording is a derivative work of a musical composition. A remix is also a derivative work.
To qualify as a derivative work, the “new” work must be:
- authorized by the owner of the underlying work (or the underlying work must be in the public domain); and
- independently copyrightable (i.e., there must be at least some substantial and original variation from the underlying work—not merely a trivial variation).
In sum, copyright owners have a variety of exclusive rights, in which owners can control the reproduction, distribution, creation of derivative works, public performance, and, in the case of sound recordings, the public performance via digital audio transmission of their songs.
Stay tuned for our next Music Law 101 post, in which we will discuss how long copyright protection lasts and when works enter into the public domain.
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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