How Music Copyright Works
Blog By: Attorney Joe Anderson
Edited By: Heather Harteis
Understanding and navigating the complexities of the rights of songwriters and recording artists in their creations can at first seem overwhelming, but there are a few key mental and legal distinctions to learn to help ensure compliance when obtaining legal rights for licensees or protecting the interests of creatives and copyright licensors.
Part 1
What are the different types of music copyrights?
Picture yourself walking into a music store. What kind of store did you picture?
Was it a:
store selling instruments and sheet music?
store selling CDs, vinyl, and cassette tapes?
There are two different copyrights for music, with this same concept in mind. Any music you hear on the radio, streaming, or purchased recordings have two individual copyrights:
The copyright in the composition (visualize sheet music)
The copyright in the recording of that music (visualize a vinyl disc)
The first type of copyright is: The composition copyright, often also referred to as the “publishing,” is the creation of the author of the musical composition itself, which can be one or more people including songwriters, composers, lyricists, etc. There is one definitive version of this copyright that is consistently involved in all transactions involving the song. There are several independent aspects of this copyright that can be sold, licensed, or otherwise exploited by its owner (or owner-appointed administrator). Songwriters are more likely to own the publishing rights to their music.
The second type of copyright is: The sound recording copyright, often also referred to as the “master,” is the creation of a recording artist (and sometimes a producer), which can be one or more people including musicians, singers, conductors, and sometimes technicians involved in reducing a specific version of the composition to a sonic recording capable of being replayed. There can be multiple masters of any given composition. Likewise, there are several independent aspects of each master copyright that can be sold, licensed, or otherwise exploited, and all those rights can be broken up differently. Record labels are more likely to own the master copyrights.
What are the master and publishing copyrights for a song?
Here’s a recent example to contextualize these points:
“Fast Car” is a composition written by singer/songwriter Tracy Chapman and originally recorded by her and released on Elektra Records in April 1988 as the debut single on her debut album. So, at that moment, there were two “Fast Car” copyrights:
The “Song of the Year” Grammy-nominated song “Fast Car” written by Tracy Chapman, the melody, chord progression, and lyrics of which can all be written down in sheet music notation for anyone to play (the publishing); and
The Recording of the 1989 “Record of the Year” Grammy-nominated and Best Female Pop Vocal Performance Grammy-winning folk/rock single “Fast Car” from the eponymous debut album Tracy Chapman on Elektra Records – a “master” recorded and released on compact discs and played on the radio that reached the Top Ten on both the UK and US Charts.
Those copyrights would break down as follows (although they may differ in various international territories where the rights have been licensed to other entities):
Publishing: © 1988 by Tracy Chapman and her publishing entity Purple Rabbit Music
Master: © (P) 1988 by Elektra Records (the circle P is the notation for “phonocopyright”)
Whew! That was a lot.
If your brain is ready for you to stop and digest this understanding of the two types of copyrights, feel free to pause here.
If you’d like to learn more about how publishing copyrights and master copyrights have even more subcategories to them, keep reading on to part 2 of this blog.
Part 2
The Types of Music Copyright Interests
Just as a quick reminder – a copyright is, literally, the right to copy. Its exclusive ownership resides in the author of an original work reduced to a tangible means of expression (e.g., written down, painted, or recorded with permanence, including digitally) and represents the right to copy that work. Whether the copy is physical (a compact disc) or ethereal (a public performance of the work live or on radio, television, or via the Internet), each is a copy of the original and the property of the author or copyright owner.
What are the types of publishing copyrights?
So, let’s start with the publishing rights. The rights that can be granted in a musical composition include the following, in historical order:
Publishing Reproduction and Distribution: The right to produce and distribute sheet music of the composition for anyone to play and/or sing at home. This was the main method of distribution of songs before the advent of the gramophone and, later, the radio.
Public Performance: The right to play or perform a composition in public (e.g., at a concert or in a restaurant) or, later, to broadcast a performance of it via radio or other methods such as television and eventually streaming. Payment for these rights is made by the venue or broadcaster and collected by performing rights societies such as ASCAP, BMI, and SESAC in the United States and a variety of others worldwide.
Mechanical Reproduction and Distribution: The right to fix a performance of the composition in a medium where it can be heard using a mechanical device (originally, piano rolls for player pianos, followed by gramophone records, vinyl records, cassettes, CDs, and eventually digital distribution via download).
Compulsory License: Also known as a statutory license (because it is granted by law at a rate set by legislation rather than agreement), it allows the use of a composition that has previously been recorded without the explicit permission of the copyright owner. In exchange, a royalty is paid to the copyright holder.
Synchronization with Visual Works: The right to synchronize a recorded performance of the composition to the “moving images” in a work of visual media such as film, television, digital media, or commercial advertising.
Adaptation or derivative use: The grab bag of additional rights that can include sampling, turning a song into a story (such as a film or TV show), and other uses of the music or lyrics that might require a license.
What are the types of master use copyrights?
Next up, the master use rights, which are for the use of a given sound recording of the composition. These differ because, while the publishing of a composition is largely static (“Fast Car” is and always will be a song written by Tracy Chapman), there can be virtually limitless versions of “Fast Car” recorded as covers, live versions, and more (e.g., most recently on the Best Country Solo Performance Grammy-nominated version by Luke Combs released in 2023 on Columbia Records, but also including others with which you may not be familiar).
The Sound Recording copyright generally is owned by the recording artist(s) (and sometimes producers) who performed on the recording; although, as a practical matter, the record label frequently takes ownership of that copyright from day one. The Master rights include:
Master Reproduction: The right to duplicate copies of the sound recording in audio only format, traditionally by way of releasing it on physical products such as vinyl, tape, or CD and later via digital means. This is a manufacturing right.
Master Distribution: The right to distribute copies of the sound recording in audio only format, traditionally by way of releasing it on physical products such as vinyl, tape, or CD and later via digital means. This is a distribution and sales right. (Note: Often 1 and 2 are included together in one deal, but they can be separated such that one entity has the right to manufacture but another has the distribution rights, for example, to import the record from the manufacturer in one territory for distribution and sale in another.)
Master Use License for Synchronization with Visual Works: The right to synchronize a specific master recording to the “moving images” in a work of visual media such as film, television, digital media, or commercial advertising. This is analogous to the right in the composition and is often also referred to as a “sync right,” but for accuracy, the sync is for the composition and the “master use” is for the recording.
Digital Public Performance: The relatively recently created right to broadcast a performance of a master recording via satellite radio or non-interactive streaming media (e.g., Pandora, SiriusXM, iHeartradio, etc.) in certain territories.
(Note: Traditionally, there was no public performance right for sound recordings, meaning that only the composer of a song benefited directly from the broadcast of any recording of that song via radio. In the digital age, however, recording artists do receive royalties for certain streaming platforms (but not others that are “interactive,” such as AppleMusic, Spotify, or Amazon Music). Payment for these rights is made by the streaming platform and collected in the United States by SoundExchange for distribution to recording artists and record labels (45% to featured artist, 5% to supporting artists, 50% to the record label).Adaptation or derivative use: The grab bag of additional rights that can include sampling, remixing, and other uses of a specific recording that might require a license.
If you are familiar with Taylor Swift, then you are familiar with the fact that she re-recorded her songs and re-released her albums in an effort to finally obtain master rights to her music, on the re-recordings, since she was unable to obtain master rights on the originals.
Holy cannoli, this is like a textbook with all these terms!
No wonder folks hire an attorney to help them understand copyrights 🙂
If your brain needs a break, feel free to pause here.
If you’d like to see how it all comes together in practice, keep reading on to part 3 of this blog.
Part 3
How These Music Copyrights Interact
A copyright is an exclusive right (sometimes best considered as a bundle of rights) held by the copyright owner, so absent the written agreement of the copyright owner, unauthorized exercise of any of the rights above constitutes copyright infringement (sometimes of more than one copyright if both the master and publishing are infringed). Let’s use this information to analyze a few common questions that might arise for copyright owners, authors, or others interested in making use of someone else’s music.
But first, the exception! Remember the “Compulsory License” mentioned above? It’s a license granted pursuant to statute, without the explicit permission of the owner, to anyone else to make a recording of the composition or perform the composition publicly, commonly referred to as “covers” of the original recording of the song. The Compulsory License only applies to a composition that has already been recorded and distributed at least once (hence, later versions will be covers of that original version, even if the later version is more famous). Thus, the songwriter/publisher gets to choose the first artist to record the song (might be the songwriter, might be someone else), but after that recording occurs and is published, anyone can thereafter record a new, reasonably faithful (i.e., no major changes in compositional structure or lyrical content) version of the composition.
In short, the copyright owner of the song is “compelled” by law to issue a mechanical license to future recording artists at the Statutory Rate according to law . Royalties for such licenses are paid by the manufacturer to the publisher generally by way of collection through the Harry Fox Agency in the U.S. As a practical matter, then, Luke Combs did not have to get Tracy Chapman’s permission to record his version of “Fast Car.” In fact, he did not; although there’s no reason to believe she would have objected. The point is that he was able to file proper paperwork with the Copyright Office and Harry Fox Agency indicating that he was making a faithful cover of “Fast Car,” and she had nothing to say about it.
Per recent reports, her royalties for the first six months after his release of the song in mid-2023 were about $500,000, so it’s not as if this is a problem. In fact, most songwriters love having their songs covered, especially much later or in a different genre or more successfully. The publishing owner still receives public performance royalties for broadcast and streaming of the cover version, and interest in the original or in the sheet music for the song may also be increased to the benefit of the songwriter/publisher.
What about using music in movies? What’s the copyright that applies here?
Significantly, however, only the mechanical right is compulsory. The others remain discretionary and exclusive to the owner. Thus, if Greta Gerwig wants to put the Luke Combs cover of “Fast Car” in Barbie 2: Ken Is Homeless, she will not only have to get permission from Columbia Records, she’ll also have to get permission from Tracy Chapman and Purple Rabbit Music, and that permission can be withheld by Tracy or she can charge whatever she wants for the synchronization license, regardless of how much Luke might want to hear his cover in the movie. This provides a good example of why it’s vital to distinguish between the two copyrights when pursuing licenses for the use of music. The permissions can get complicated.
For potential licensees (for example, a company that wants to use a piece of music in a commercial), securing the sync license from the publisher first is key unless only a specific recording of the song will do. If the composer is happy to let you put the song in the commercial, then the licensee can always just re-record a new version rather than pay what might be a big master use fee to a big recording artist/record label. On the other hand, it doesn’t matter if Manfred Mann’s Earth Band is happy to license you its cover of “Blinded by the Light.” If Bruce Springsteen isn’t interested in granting you a sync license (he wrote it), you’re out of luck. If you simply have to have a Tom Waits cover of a Neil Young composition, then you’re really out of luck.
How does a band split their copyright ownership?
The division of copyright ownership also explains why, traditionally, the big money for artists in the music business was in the music publishing rather than the sound recording side of the industry. John Lennon and Paul McCartney as songwriting partners through their publishing company Northern Songs made all the performance royalties from the Beatles recordings of those radio hits, not to mention all the mechanical and performance (and, in some cases, sync license) royalties from covers of those songs by other artists. George and Ringo only got paid for the sale of Beatles records made famous by those songs becoming radio hits (not counting the songs they wrote either on their own or for the Beatles, of course). Some bands, like U2, equally share their publishing and recording royalties. Most do not.
Joe Anderson is an Entertainment Attorney based in Los Angeles.