Copyright Fundamentals for Musicians

Copyright Fundamentals
for Musicians
Presenter: Tristan C. Robinson
Generously sponsored by:
Texas Accountants and Lawyers for the Arts (“TALA”)
Texas Bar Foundation
Houston Endowment Fund
Special Thanks to: United Way

Who is Our Audience Tonight?
 Musicians (Solo Artists, Accompanists, Bands, DJs, Groups, etc.)
 Independent “Indie” Labels or Start-Up Publishing Cos.
 Songwriters
 Managers, Agents, Attorneys (Suits)
 Studio Engineers
 Anyone who wants to know how to engage the music business the smart
(legal) way and “make money” from what they’ve created.
 Anyone who wants to know their rights.

What Will We Cover?
 What’s a Copyright?
 Types of Copyrights in Music: the Song and the Recording
 What are the rights we get if we own a Copyright?
 Understanding how ownership of Copyright in a song is generally handled in
the entertainment biz. (We’ll talk Publishers vs. Record Labels and things to
look out for if you’re signing up with either)
 All the things we need to handle to make money, protect, or sue over our
music. (We’ll talk what these things can cost you and what you can do to not
spend a fortune while still being smart with your IP)
 Q&A

Music Law 101: What’s a Copyright and
How Do I Get One?
 WHAT IT IS: A Copyright is a form of Intellectual Property protection provided by
law. Copyright protection is available to “original works of authorship” that are
“fixed in a tangible form”, whether published or unpublished.
 What’s covered: Paintings, songs, sound recordings, literary works, live performances
(theatre/dance), photographs, movies, and software
 WHAT IT’S NOT: An idea or some useful invention. It must be “artistic” in nature.
 HOW DO I GET ONE: You have one the moment it’s put in a “fixed, tangible form”.
For us, that means if you write down the lyrics and chords or record it you have a
Copyright that moment (assuming it’s “original”).**
 ** - Heard about the U.S. Copyright Office? We’ll talk more about Federal Copyright
registration and the importance of that shortly, as well as what you get as the owner.

Music Law 101: Musical Composition vs.
Sound Recording
 IMPORTANT: Two types of Copyrights exist in Music.
 1. The Musical Composition: the notes, chords, lyrics, etc. (the easy
way to think about this is “the Song”). This is the thing that can be written
down on paper and recorded in a studio later.
 2. The Sound Recording: this is the recording of a particular performance of
the musical composition (the easy way to think about this is “the Recording”
or “the Master”).
Think: “The song itself… vs. the recording of that song being performed”
 WHY SHOULD I CARE?: Because which Copyright you own is going to
determine HOW YOU GET PAID and HOW MUCH YOU GET PAID.

Music Law 101: Musical Composition (“Song”)
vs. Sound Recording (“Recording”)
 Confused? Let’s simplify:
 Someone can own a Copyright to a “Song”
 Someone can own a Copyright to a “Recording” (of a Song)
 We’ll be referring to these two Copyrights as the “Song” and the “Recording” moving from
hereon out and soon we’ll talk about “how” you may become a full or part owner of either
of these Copyrights.

Music Law 101: What kind of rights do
we have if we hold the Copyright?
 Section 106 of the Copyright Act lists six “exclusive”* rights Copyright owners
receive:
 1. Right of Reproduction.
 2. Right to Make Derivatives
 3. Right to Distribute
 4. Right of Public Performance
 5. Right to Display in Public
 6. Digital Transmission Performance
* NOTE: Exclusive just means if you have this and haven’t licensed it away (like, with a
contract saying someone else can do these things)... No one else can do it.

Music Law 101: Exclusive Right of
Reproduction
 Reproduce = Copy. Right to copy it.
 This is the most important, powerful right you have as the owner of a
Copyright. It means you’re the only one who gets to “copy” this artistic
masterpiece of yours (without being paid anyway).
 Copyright. The “right” to make “copies” of the music. You get it.

Reproduction
 BUT REMEMBER: We have two types of Copyright(s) in the music biz that may conflict
(owner of the song Copyright, and owner of the recording Copyright)
 So how’s this work and who says who can copy what under this right to reproduce?
 Things can get complicated because of “Song” and “Recording” Copyright ownership
differences!
 So, let’s use a hypo.

Reproduction (HYPO1-Q)
HYPO: Suppose Justin Timberlake writes down a chord progression and
some lyrics on a piece of paper. He grins about it, decides to title it
“SexyBack”, and relaxes after deciding this was a job well done.
Without doing anything else, Justin sends that piece of paper to the U.S.
Copyright office to file for a Federal registration.
Question 1: Does it matter he hasn’t recorded or even played
“SexyBack”? Can someone else record or play “SexyBack” since Justin
hasn’t?

Reproduction (HYPO1-A)
HYPO: Suppose Justin Timberlake writes down a chord progression and
some lyrics on a piece of paper. He grins about it, decides to title it
“SexyBack”, and relaxes after deciding this was a job well done.
Without doing anything else, Justin sends that piece of paper to the U.S.
Copyright office to file for a Federal registration.
Answer 1: No. Justin obtained a Copyright to the musical composition
the moment he fixed it into a tangible medium of expression (when he
put the lyrics and chords on paper). Without Justin’s permission, no one
else can go record “SexyBack” even though he has yet to do so himself
(because to copy the song in any way is a violation of JT’s Exclusive right
of Reproduction – and thus is Copyright infringement).

 So what’s this trying to say?
 Practically speaking, the ball always begins in the songwriter’s court to
license as s/he pleases. There’s nothing to record (no “recording” Copyright)
if someone hasn’t written a song. So, we always start there.
 It doesn’t matter that he and Timbaland haven’t gone into the studio and
began mastering some recording of SexyBack.
 But let’s take a look at how it works if we do have some recording going on.

HYPO: Same facts as in Hypo 1, only Justin decides that he won’t be
including “SexyBack” on his new album. Instead, he approaches the
record company DefJam about whether or not they’d be interested in
having one of their artists, Rihanna, record it. DefJam agrees and Justin
gives permission for DefJam and Rihanna to record “SexyBack”. The song
becomes a huge success for Rihanna, causing Justin to regret the
decision not to include “SexyBack” on his latest album. Justin now seeks
to include his own version of “SexyBack” on his next album.
Question 2: Did Justin lose his right to reproduce “SexyBack” when he
gave permission for DefJam and Rihanna to record it?

Answer 2: Not without an agreement stating as much. Nothing in the
fact scenario above contemplates licensing “SexyBack” to
DefJam/Rihanna for anything other than sound recording rights. This
means, DefJam and their artist, Rihanna, can master it, but Justin’s
rights haven’t gone anywhere.

Music Law 101: Exclusive Right to
 So what happened?
 In the last hypo, because Justin still has the right to reproduce the underlying
song “SexyBack”, he’s owed royalties any time DefJam reproduces (note I’m
not saying “sells”) a CD, cassette or digital copy of Rihanna’s “SexyBack”.
 It’s still Justin’s song to reproduce, he just gave DefJam and Rihanna
permission to record it. See how important the right of reproduction is?
 Keep this in mind for when we get to making money from your music, which
will be discussed in just a bit.

Question 3: What reproduction rights does DefJam have with the
Copyright to the sound recording?

Music Law 101: Exclusive Right to
HYPO: Same facts as in Hypo 1, only Justin decides that he won’t be including
“SexyBack” on his new album. Instead, he approaches the record company
DefJam about whether or not they’d be interested in having one of their artists,
Rihanna, record it. DefJam agrees and Justin gives permission for DefJam and
Rihanna to record “SexyBack”. The song becomes a huge success for Rihanna,
causing Justin to regret the decision not to include “SexyBack” on his latest
album. Justin now seeks to include his own version of “SexyBack” on his next
album
Answer 3: DefJam has the right to reproduce the Rihanna version of “SexyBack”
onto CDs, cassettes, vinyl, etc. without having to ask Justin every time they do
so. DefJam still controls an exclusive right to reproduction that is protected by
Copyright law, it just so happens that every time the particular recording is
reproduced, so too is Justin’s musical composition (meaning Justin will still
benefit from a reproduction of the sound recording absent agreeing otherwise).

Music Law 101: Exclusive Right to Make
Derivatives
 NEXT RIGHT: DERIVATIVES
 Think about the exclusive right to make derivatives like this: if you own the
Copyright for a song, only you can give permission to make something
“derived” from that song. Adaptations, transformations, translations and new
works “based on” your song are (for the most part) entirely within your
control as the Copyright owner.
 Real World Examples: Let’s say someone wants to sing your song in another
language. A translation is a “derivative”.
 Now let’s talk about the biggest issue…

Music Law: Exclusive Right to Make
Derivatives – “SAMPLING”
 “Sampling” is perhaps the biggest issue that falls into a discussion of
derivatives. Sampling is when you take a piece of an existing Copyrighted
work and combine it with a new work (i.e., you take a portion of an existing
song/track and want it to be part of your new, different song).
 This is especially common in genres like Hip-Hop and R&B music.
 Remember that we have Copyright protection for folks who own both the
SONG and the RECORDING as we consider this next Hypo

Derivatives (HYPO3-Q)
Hypo: Justin owns the underlying musical composition (the “song”) for
“SexyBack”. DefJam owns the sound recording of “SexyBack” as
performed by Rihanna. Let’s say there’s not just Rihanna’s version out
there now, but instead that “SexyBack” has been recorded by various
artists at this point. Lil’ Wayne decides he would like to sample a portion
of “SexyBack” for his new song, “Sexy Wayne”.
Question 4: If the version of “SexyBack” Weezy wishes to sample is
solely from the DefJam/Rihanna master, does Weezy still need Justin’s
permission to sample a portion of “SexyBack”?

Derivatives (HYPO3-A)
Answer 4: Without more facts, yes. Rights to the underlying musical
composition belong to Justin and those are powerful rights. Both Justin
(song owner) and DefJam (owner of the Rihanna-master) have separate
rights to create derivatives. Weezy will need permission from both.

Question 5: Does the result change if Wayne decides to use only a very
small portion of Rihanna’s recording of “SexyBack”?

of “SexyBack” for his new song, “Sexy WAYNE”.
Answer 5: No. There’s no clear rule to determine how much sampling is
“too much” and Weezy risks Copyright infringement if he does not seek
the proper permission from both Justin and DefJam.

Derivatives – “SAMPLING”
 WARNING: Don’t make the mistake of infringing someone’s Copyright because
your friends told you that if you just “sampled a little” it would be OK.
 This is a MYTH: “I can sample up to six seconds of a song without running into
any issues”
 No, no you can’t. There’s no CLEAR answer on this one unless you want a
judge in Federal court to answer it for you – and even then you don’t know
what their ruling will be. Don’t run the risk.

Question 6: So what can Weezy do to reduce the number of licenses he’ll
need to negotiate to sample “SexyBack”?

Derivatives (HYPO3-A)
Answer 6: If Wayne decides he doesn’t have to have the Rihanna version
of “SexyBack” on “Sexy Wayne”, he can seek Justin’s permission (and
need not seek DefJam’s) if he or one of his musicians wishes to perform
the portion of the song he wanted to sample.

Music Law: Exclusive Right to Distribute
 Copyright owners have the exclusive right to distribute a song. This protection
means no one can distribute copies (sell, lease, etc., either in the physical or
digital marketplace) of your song without negotiating a license with you.
 Sounds simple, but there’s a number of rules that make it tricky based on if
we’re talking about a physical (like a CD or cassette) or digital copy (like a
.mp3 or .wav file on the computer).
 FIRST SALE DOCTRINE: Allows someone who purchases a physical copy of a
Copyrighted song (i.e., someone who buys a CD) to resell that particular copy.
That’s why it’s perfectly fine for someone to sell an old CD or record on a
website like eBay or Amazon.

Music Law: Exclusive Right to Distribute
 What can’t you do then? What’s different with digital versions?
 Copy that CD (burn it with third party software and redistribute new copies).
 For the same reasons, if the copy of a particular album is entirely digital (files
on a hard drive), the First Sale Doctrine doesn’t allow any kind of transfer
without permission from the Copyright holder.
 The right to distribute a song can also raise issues that apply to television and
film which refer to a special kind of license called a “synchronization license”
(or, “synch license”). We will discuss this later when we talk about making
money from your song.

Music Law: Exclusive Right of Public
Performance
 This right is a big protection for songwriters.
 Without the Copyright holder’s permission, no one can perform the song in a
club, or broadcast it over the radio or TV.
 At this point you may be asking, “How can I possibly police this sort of right?”
The good news is that there’s something called “Performance Rights
Organizations” (“PRO’s”) out there. These organizations represent millions of
songwriters and their job is to essentially monitor what’s being played. The
big ones you should be aware of (and register your songs with as a songwriter)
are: ASCAP, BMI, and SESAC. These are the people that work with songwriters
to issue performance licenses to all the clubs, radio stations, etc. that wish to
publicly perform the songwriter’s Copyrighted music.

Music Law: Exclusive Right to Display in
Public
 A Copyright holder has the exclusive right to display the Copyrighted work in
public.
 This is different than “performance”.
 This right protects, for example, someone from putting your song lyrics on
their website without your permission.

Music Law: Rights of Digital Transmission
Performances
 The Copyright Act gives the owner of a Copyright in the sound recording the
following protection: “to perform the copyrighted work publicly by means of
a digital audio transmission.”
 Only applies to sound recordings that are DIGITAL.
 Why does this only apply to sound recordings? Because the protection for
“public performance” (i.e., a concert) is already given to song Copyright
owner (who, in the earlier hypo would usually do something like license to
Rihanna the right to perform).

Music Law: Rights of Digital Transmission
Performances
 Why do we have this?
 Performing artists (if different than the songwriter) and their record labels
weren’t receiving any money on the digital transmission of the Copyrighted
performance, even though songwriters were.
 Congress decided this was unfair and enacted the “Digital Performance Right in
Sound Recordings Act of 1995” This and the DMCA (more law) made it so royalty
payments would be owed when the sound recording was transmitted digitally.
 A company called SoundExchange collects $ from online “non-interactive”
streaming services. Free. Take advantage!

Music Law: Determining Who Owns
Which Copyright?
 Not as simple as you may think.
 Short Answer: DEPENDS ON WHO IS INVOLVED!

Music Law: Determining Who Owns
Which Copyright?
 Longer Answer: You need to carefully evaluate the landscape of your situation
and ask yourself a few questions to accurately nail this down. For example,
did you write the song with someone else? Did anyone else contribute in any
way to the song (this could be as simple as a guitar riff or lyric)? Where did
you record your song (i.e., with your own equipment or did you use the
resources of a studio)? Is a publishing company or record label involved? Have
you signed any contracts with any of these potential parties? Did you write
the song working in your capacity for someone else?
 If you’ve answered “yes” to any of those questions, then you may not own all
(or any) of the copyrighted work, regardless of whether it’s a musical
composition or a sound recording.

Music Law: Who Owns It? Co-authorship
& Collaborations
 This means “working with others”.
 Be wary when you collaborate with others on your song, no matter how
insignificant their contribution may seem.
 The law assumes that if you don’t have an agreement in place, and two or
more people are working on a song together, something called a “joint work”
is created.
 WITHOUT AN AGREEMENT ROYALTIES WILL BE SPLIT EVENLY!

Music Law: Who Owns It? Co-authorship
& Collaborations
 So how do you fix that?
 You pre empt it by getting a contract in place before the money starts coming
in.
 If you know you’re putting in more effort, you should be paid for it. Don’t
wait until the money starts coming in!

Music Law: Who Owns It? Contracts,
Publishing Companies, and Record Labels
 OBVIOUSLY Contracts shouldn’t be signed without understanding what you’re
agreeing to.
 However, the hard reality of the music industry is that artists who are
approached for the first time by major publishing companies or record labels
generally can bet they won’t have a lot of negotiating power–a fact the
publishers and labels are well aware of.
 Before you let your excitement to be a part of the music industry walk you
into an unfavorable AND BINDING scenario, know the following types of things
can and do occur…

 It’s common to see clauses in music agreements that assign the publishing
company the rights to the musical composition (the “SONG”), or the record
label the rights to a sound recording (the “RECORDING”). Some clauses are
negotiable, and some generally aren’t, but you should consult a
knowledgeable attorney before signing your first music contract.
 The reason is simple: you need to be aware of who is about to potentially
stake a claim in your songs.

 Another issue that frequently pops up is the term (the “duration”).
 IF YOU SIGN with a publisher or label, you’re locked into a particular deal
with a publisher or label for a period of time.
 In a typical contract for a new artist you’ll be given a one year “trial” term.
After the trial term concludes, the publisher or label has the option to
evaluate your success and thereafter invoke an option to continue the deal
another year. These options generally can go on for the next three to five
years after, assuming you’re a keeper.

 Consider what this may mean for you in the event you are approached by a
different publisher or label who offers better terms:
 (1) Do you still own the Copyright to your song or sound recordings, or have
you sold (licensed) these to the publisher or label you’re currently signed
with?;
 (2) Did your document have a clause allowing you to renegotiate the terms
with the original publisher or label if they invoke their option?; or even,
 (3) Is this publisher or label a place you see as a “fit” for you?
THESE THINGS ARE DANGEROUS! The time to engage an entertainment attorney
is BEFORE not AFTER you sign.

Music Law: A Brief Note on “Publishing
Companies” vs. “Record Labels”
 Think of it this way: PUBLISHER = SONG / LABEL = RECORDING
 A publisher deals with the aspects of songwriting and management of
the composition. The role of the publisher is essentially to connect people with
your song in order to generate revenue. Publishing companies assist songwriters
with licensing, distribution, accounting, collecting royalties, and the like (this is
called “administration”).
 In exchange for the administration of the songwriter’s Copyrighted work, a
publisher will generally receive a percentage or all of the Copyright ownership,
thereby receiving a share of the royalties. I would recommend taking a look
around on the The Harry Fox Agency website if you’re interested in learning more
about publishers.

Music Law: A Brief Note on “Publishing
Companies” vs. “Record Labels”
 A record label handles aspects of performance and sound recording. In some
cases, a record label will also serve as its own publishing company, such as
with the “big three” (which identifies, Universal Music Group, Sony Music
Entertainment, and Warner Music Group).
 Basically, these are companies that find performers for the song (assuming
the songwriter is not also a performer, or perhaps if the label desires one of
their performers to cover the song), record or master the songs, own
Copyrights to the sound recordings, and market those recordings.

Music Law: Who Owns It? “Works for
Hire”
 COMMON SITUATION: Let’s say someone hires you to write a song for them.
 If you’re a new songwriter in the industry with little bargaining power (as is
frequently the case), you may think that sounds like a pretty good gig.
However, the consequence of writing a song for an employer in this type of
situation could very well give rise to what’s called a “work made for hire”.
The bottom line with works made for hire is that the employer (which can be
a company or individual), rather than the employee (in this hypothetical,
you), will be deemed the author and hold the Copyright protections.
 Remember those contract dangers we were discussing above? Here’s another:
a common clause that comes up in a songwriter’s contract with a publishing
company is one that declares the things you author are “works made for hire”
for the company.

Music Law: Aww yeah, making Money
 There’s a few major ways you can leverage your song for revenue and they all
involve a straightforward concept: issuing licenses to your Copyrighted work
in exchange for fees (“royalties”).
 Some of these royalties operate pursuant to law, others can be negotiated.

Music Law: Making Money – “Mechanical
Royalties”
 Again, we use a license (a contract). One type of license is called a “mechanical
license” an this applies to the Copyright holder’s “right to reproduce”.
 Remember that if you write a song no one else can reproduce that song without
your permission (permission is given in the form of what’s called a “mechanical
license”).
 When a record label wants to reproduce a song in “devices serving to reproduce
the composition mechanically,” and pays money for that right, the resulting
payment is what’s called a “mechanical royalty”.
 Absent an agreement to the contrary, these royalties are paid every time a song is
reproduced, not just when it is sold!

Music Law: Making Money – Mechanical
Royalties
 The government sets a maximum amount for mechanical royalties, which is
currently $0.091 cents for songs under five minutes.
 The rate goes up when the song is over 5 minutes. It also applies whenever
your song is covered by other people.
 Doesn’t sound like much, but…

Music Law: Making Money – Mechanical
Royalties
 Let’s say your song which you have the composition rights to appears on a CD
that a label manufactures 100,000 copies of.
 Assuming you have assigned away nothing to a publisher, you receive (100,000
x $0.091) $9100.00.
 Now consider if that CD was produced just as many times, only it had two of
your songs on it ($9100.00 x 2). That’s $18,200 for two songs, on a CD that
wasn’t even manufactured an unreasonable amount.
 Mechanical royalties are the primary source of income for publishers, and will
often be a hotly negotiated part of your music contract. A good deal with a
publisher will ensure songwriters receive a fair return on mechanicals in
exchange for the Copyright to the work.

Music Law: Making Money – Public
Performance Royalties
 Public performance royalties are the SECOND MOST IMPORTANT SOURCE OF
REVENUE for a Copyright owner.
 Almost every time a song is performed publicly, minus a few exceptions, the
holder of a Copyright is entitled to public performance royalties.
 This is a broad source of revenue because public performance means,
speaking practically: live in concert, on a record, or broadcast over radio or
television.

Music Law: Making Money - Public
Performance Royalties (PROs!)
 In order to monitor public performance royalties, you should engage a
Performance Rights Organization (“PROs”) such as ASCAP, BMI, and SESAC.
PROs are in the business of issuing blanket licenses to those who wish to
broadcast (or “publicly perform”) the songs of their affiliates (the songwriters
or publishers).
 PROs assist artists in generating revenue by keeping track of air play and
subsequently collecting and distributing monies owed to the Copyright owner
(minus a commission fee).
 CHEAP: $50.00 to sign up (ASCAP). No annual dues. They do the work.

Music Law: Making Money -
Synchronization
 A “synchronization license” is an agreement the Copyright owner of the song
negotiates with someone (usually a producer) who wants to use the song in
film or television (including advertisements).
 This is tied with the Copyright owner’s exclusive rights to reproduction and
distribution.
 Generally, a one-time fee is paid by the producer in exchange for the right to
distribute and reproduce the Copyrighted song in their movie, show or
advertisement.
 A similar permission for the sound recording is given in what’s called a
“master usage license”, which is negotiated with the sound recording’s
Copyright holder.

Music Law: Making Money – Synch
Licenses
 Keep in mind that synchronization licenses are different from public
performance licenses and operate as a separate, distinct source of revenue.
 For example, every time a movie is rerun on television, a PRO still monitors
the performance and royalties are incurred in that manner as well.

Music Law: Making Money – Print
Revenue
 Not as important as it once was but…
 Music contracts also anticipate royalties for the sale of any sheet music.
Think: sales of guitar tabs and lyrics for your Copyrighted song.

Music Law: Making Money – Things Not
Related to Copyright
 Music is basically pirated all the time, which hurts the artists, so here’s some
other things you can do to make money:
 A big way to make money off your brand name (or Trademark, which is
beyond the scope of this seminar) is to Merchandise
 Live shows / Ticket Sales (Big way for money to come in because you don’t
instantly make a whole lot per the PRO’s monitoring your songs) -- if you’re
in charge of the group, you can also negotiate with the venue what sort of
revenue you generate

Music Law: Federal Copyright
Registration
 Easy to do and INEXPENSIVE (only $55.00 generally to file for Copyright
registration).
 Not necessarily PER SONG, you can file for what’s called a “Compilation”
 You don’t necessarily need an attorney for this, but if you have questions
after visiting COPYRIGHT.GOV, call one.
 So why do this?

Music Law: Federal Copyright Protection
 YOU MUST REGISTER TO SUE!
 Assuming someone later infringes your Copyright to a song, and you haven’t
registered, you can’t take advantage of the $150,000 “statutory damages” clause
of the Copyright Act. You’ll have to prove “actual damages” – which can be hard
and costly to show.
 Establishes a record you own copyright and if made before or within 5 years
of publication, establishes the validity of your claim in court.
 Lasts Life + 70 years (meaning if you’re Marvin Gaye your family can sue Robin
Thicke for ripping off his song post-mortem)
 It all starts here, REGISTER YOUR COPYRIGHTS (www.copyright.gov)

Music Law: Q&A
 Ask anything you feel is unanswered at this point.
 Thanks to TALA for having me.
Law Offices of Tristan C. Robinson, P.L.L.C.
1095 Evergreen Cir., Suite 200
The Woodlands, TX 77380
(281) 601-4579 – Office
(713) 893-6940 – Fax
Tristan@tcrobinsonlaw.com
www.tcrobinsonlaw.com
blog.tcrobinsonlaw.com

Copyright Fundamentals for Musicians

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