Who Owns that Sound? Music in the Digital Age
Who this resource is for: Artists seeking further information on musical copyright
Who created it: Written by Kurt Dahl with input from Martha Rans. Kurt Dahl has practiced Entertainment Law since 2010, became partner at Murphy & Company in 2016, and was acknowledged by Canadian Lawyer in 2019 for his contributions to Entertainment Law in Canada. This post is intended for educational use only and available to anyone on that basis. © Pacific Legal Education and Outreach Society (PLEO), May 2020.
Presented by Kurt Dahl
Musical Copyright
What is musical copyright?
Musical copyright is the exclusive legal right to produce, reproduce, publish, or perform an original musical work. Musical work includes any work of music or musical composition, with or without words, including any combination of the above.
When is musical copyright formed?
Musical copyright automatically forms when an original musical work is fixed in a tangible form such as a recording or written lyrics.
What is protected by musical copyright?
Musical copyright will protect the expression of an original musical work, but not the idea behind it. For example, many artists have similar songs about romantic relationships, but the idea behind the songs is not capable of musical copyright. However, the artist’s expression of a romantic relationship through written lyrics or in a song is capable of musical copyright.
Who owns a musical copyright?
Multiple parties can have ownership over a musical copyright. For example, there is copyright ownership of the composition of music in addition to copyright ownership in a sound recording of that composition.
What rights does the owner of a musical copyright have?
The owner of a musical copyright has an exclusive set of rights regarding how the musical work is used. For example, the owner is the only person who can reproduce the work, perform it in public, and authorize other people to do the same. If any person exercises those rights without the permission of the owner, this is copyright infringement.
When is musical copyright infringed?
Musical copyright will be infringed if: the music or any substantial part of it is reproduced in any form or performed in public by someone other than the owner, the music is communicated to the public by telecommunication, or a translation of the music is produced or performed, without the consent of the copyright owner.
The person claiming copyright infringement must prove two things:
Access – that the infringer had heard, or could reasonably be presumed to have heard, the original song prior to writing their song; and
Substantial Similarity – that the average listener can tell that one song has been copied from the other. The more elements that the two works have in common, the more likely they are substantially similar.
What are royalties and why do they matter?
Royalties work by granting certain rights over a musical copyright to some person or organization in exchange for a payment of money. For example, the owner of a musical copyright would be owed a royalty whenever their music is played on the radio because they allowed the radio to play their music.
Royalties matter to artists because they are a source of revenue. If one artist uses another’s copyrighted musical work without permission, the original artist is losing royalties that should be paid to them. Additionally, the new artist can obtain their own royalties based on their use of someone else’s original work. Both of these facts underpin the importance of royalties.
Rights in Musical Copyright
Mechanical – the right to reproduce the music in a recording
Public performing – the right to perform the music in public
Synchronization – the right to synchronize the music with visual images such as using a song in a movie or a commercial
Print rights – the right to reproduce the music in print form
Subsidiary rights – other rights associated with the economic value from the music such as the right to translate a song
Case Study: Rolling Stones Article on Cardi B and Copyright Infringement
Cardi B recently posted a viral Instagram video where she yells ‘Coronavirus’ while discussing her concern about the pandemic. Within days, the audio clip from the video was used in a song that is rising on the iTunes charts. Cardi B believes she is owed royalties from the use of her audio in the song without her permission. It is possible that she is because her contract with the record label, Atlantic Records, may grant them ownership of all recordings made by her, including those on her Instagram. It could be argued that the audio in the video is an original expression capable of copyright protection. If this is the case, Atlantic could have a claim for copyright infringement against the artist behind the song.
Case Study: Nick Cave on “stealing” music
On numerous occasions Nick Cave has admitted to “stealing” other artists’ work for use in his band’s own songs. However, Cave does not have the same conception of stealing as most of the public. Cave believes that stealing music should be encouraged and celebrated, but only if the stolen music is then advanced in some way after the theft. According to Cave, this is how modern music progresses; ideas for music are collected and transformed into new music that is so covetable that the new music is then stolen by someone else and advanced further. This belief causes Cave to think that all music is stolen.
The prevalence of copyright infringement cases can indicate two possibilities. First, that most artists have not adopted Cave’s belief in the value of stolen music as a tool for musical progression. Second, that many artists have adopted Cave’s belief, but do not believe their stolen music has been sufficiently advanced in a way that warrants looking past the theft. These two possibilities, when combined with the fact that copyright infringement cases can result in multimillion dollar awards for the original artist, might explain the prevalence of copyright infringement cases being litigated.
Which position an artist takes on the issue of musical copyright, Cardi B’s or Cave’s, is likely influenced by the artist’s belief in creativity. If an artist believes that they can approach the creative process with a blank slate, free of any influences they have previously heard, seen, or experienced, then they may be more likely to ascribe to Cardi B’s viewpoint. In this situation, any similarity between the finished product and an existing musical work would be viewed as intentional, and the artist should be held liable for copyright infringement. In contrast, if the artist believes that they are unable to approach the creative process with a blank slate, then they may be more likely to ascribe to Cave’s viewpoint. In this situation, the artist can justify any similarity between the finished product and an existing musical work without guilt about “stealing” because they have advanced the original work into a new creative product that will be perpetuated and improved on over time.
Additional Resources
Kurt Dahl’s Article on SoundExchange Royalties and Paying Producers
Kurt Dahl on Band Agreements, and Why you Need One
Kurt Dahl on ‘5 Things to Look for in a Record Deal’
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