Joey Stuckey is a music producer, educator, sound engineer, recording artist, and media personality. He is the Official Music Ambassador of Macon, Georgia, where he also serves as professor of music technology at Mercer University. Joey keeps a full schedule as a commercial studio owner, music producer and music business consultant, while also working hard to make music and music technology accessible to all – a role he is uniquely qualified to undertake as a blind brain tumor survivor.
Making It In The Music Biz – The Copyright!
Okay, you might be saying to yourself, “this sounds boring, I’ll just skip this article for something more exciting”. I sympathize, but this article might just mean the difference between you being a megastar with a 50-year career and you having to get a day job!
To be sure, this article is no substitute for having a music attorney, something, at some point, that will become a necessity. But rather than thinking about how much that will cost you, let’s instead take it as a sign that you are on your way to being a real full-time music industry mover and shaker.
In the meantime, I’ll be here to assist you to navigate the confusing waters of the music biz!
Copyright is very misunderstood and there are lots of reasons for this.
First, the law hasn’t done a very good job keeping up with all the technical changes in modern music making.
Second, in a world where everyone and their mama has a blog, how do you know what information to trust?
Finally, at first, like any field of study, the amount of information to digest is massive and can be daunting, but don’t worry, we’re going to break it down to the essentials!
So, the first thing you should know is that there is no substitute for filing the copyright correctly and with the US Library of Congress! Nothing else will work!
Ever since I got started in the biz back in the early 90’s there was this persistent notion that if you made a recording and then sent it to yourself via certified mail, you had a copyright for around $3. This simply isn’t true! At best, all this does is give you an exhibit in a court of law of a federally substantiated date so you can claim that this is the date you want your copyright to take effect—but practically speaking it is a waste of time and money. Just like there is no such thing as a free lunch, there is only one way to have a properly registered copyright. Recently, a new website has come up with the digital version of the old mail-it-to-yourself, which in the biz we call the “poor man’s copyright”. Again, they are charging around $5 for this service, but it is the same kind of flawed thinking that is behind the postal version and it is a waste of money and time and doesn’t protect you or your music!
Yes, filing with the US copyright office is much more expensive, around $50 per copyright, but only if you file with the Library of Congress are you granted the rights of a copyright holder and only if you register will you be allowed by the justice system of the US to file any kind of infringement lawsuit! So, without this basic step taken with the Library, you aren’t even allowed to present your case to the courts.
Below, we’ll examine the rights granted to the copyright holder for the US. Keep in mind that different countries have different laws, however by-in-large all western countries have very similar laws. I’ll just pause a moment to say places like China have almost no intellectual property laws and theft of music and copyright infringement is truly rampant there.
Rights granted to a copyright holder:
- The Right to publicly perform the work. This means you can perform your music at concerts, public gatherings, in restaurants and bars and the like! This also allows for the broadcast of your music on TV and radio. Also, this protects you so that if someone else performs your song in public, you get paid as the songwriter for their use, or “exploitation”, of your work. I should note that technically, any performance of your music in a public place should earn you a royalty payment and conversely, should you perform someone else’s work publicly, you should pay them. Most of the time, what is supposed to happen is that a venue that has live music pays a “blanket” license to one of the PROs (Performing Rights Organization). We’ll discuss what PROs are in future articles, however, just know if you perform music in public, or someone performs your music in public, there should be money changing hands. Again usually, the artist/band isn’t responsible for this but rather the venue or space where the live music is taking place is responsible.
- The right to copy the work, or more commonly known as the right to “reproduce”. Simply put, this gives you permission to make copies, whether that is sheet music or CD’s or digital downloads or vinyl. You have the exclusive right to make and get paid for these copies.
- The right of first use. This right allows you to be the first person to record/perform the work. In other words, you have the right to be the first person to “Exploit” the music. When we are speaking about making money from music, “Exploit” isn’t a dirty word? So, if you have a song that you play for me and I love it and want to record it, until you have made money off the song, “exploited” it by making money off it, I can’t do anything with the song without your direct permission and a negotiated fee. However, once you have “Exploited” the song, say by releasing it for sale on iTunes, then as long as I pay you the “mechanical” royalty (we’ll delve more into this in another article) then you really have no recourse and I can perform and “exploit” the song you wrote.
- The right to make a derivative work. This means that only the copyright holder has the right to take a portion of something they have created and use that in combination with a newly created composition to make a whole new composition. So, remember when P-Diddy took the melody of the Police song “Every Breath You Take” and changed the lyrics to say “Every Day I Pray”? Well, the underlying melody belonged to the Police, yet, P-Diddy used that instead of coming up with his own new melody with which to sing the lyrics he had written. You can’t do that without the copyright holder’s permission and this right isn’t regulated by statute, so the fees are totally negotiable and you don’t have to grant permission if you don’t want to.
- Grand rights. This is a bit confusing and usually not germane to most songwriters, but this right gives you the ability to grant permission to have your work adapted, for example to take one of your songs and adapt it to be used in a Broadway musical. For now, we’ll move swiftly on.
- The right to distribute—this should be self-evident.
- The right to publicly display— again, easy to understand.
- The right to assign. This means that the copyright holder has the right to assign any rights to third parties. For example, most often if an artist/band gets a record deal, they will have to assign the sound recording copyright to the label.
These rights aren’t all powerful. For example, most educational institutions don’t have to pay copyright fees if they use your music for a teaching project. In my music technology class I teach at Mercer University, I play the song “Shake” by Taylor Swift and an alternate version of that song as recorded by Ryan Adams. I don’t have to pay either copyright holder based on of the right of fair use because I am using these recordings to share some important concepts about recording and producing. However, most often as my Berklee professor John Kellogg used to say, “When the music gets played, someone gets paid”!
We’ll finish with one last point.
What is copyrightable? So, contrary to a lot of poor rulings, crazy court cases, and public opinion, there are three things and three things only that are copyrightable.
- The melody of a song. This is the main theme of the music. Whether sung with lyrics or as an instrumental. You can’t copyright drum beats, guitar chords, bass lines—only the melody.
- Here again, only the song lyrics can be protected. You can’t copyright titles or specific words, like when Taylor Swift tried to copyright/trademark “Swifting” to describe when someone was tweeting about her—you can’t do that, it is too nebulous. You can, however, copyright the lyrics or story of a song.
- The Sound Recording. Yes, your recorded performance of the music is also protected. So I can’t just take your recording and use it—I must pay you if I want to use that. In future articles, we’ll discuss publishing and revenue streams from your music, but the first important step is making sure you have protected your song(s)!
So, when filling out your copyright form with the US copyright office, you will be asked the nature of the work and you will select music and lyrics (if any), for the underlying composition. And if you have a final fixed sound recording (eg, a sound recording that you will release to the public), you will select SR or sound recording as well to protect your recorded performance.
One last thing.
While it is true that copyrighting your music can be very expensive, especially if you copyright each song individually, which I recommend primarily because it makes it easy to search for by people that want to pay you for using your music, you can copyright several of your songs together as a “collection”. There isn’t a limit on how many songs can be in the “Collection” and you pay a one time fee of around $50 instead of around $50 per song. This really helps your budget but might hurt your chances of getting the music used by major companies like Sony if you go the collection route because of the more complicated process of researching the rights holder. You’ll have to decide what makes the most sense for you and your business model, but for me, I still prefer to copyright each song individually.
Check out this informative interview with my entertainment attorney about the myth of the “poor man’s copyright”. https://youtu.be/5xq81JDmnlE
**This article is provided as an overview of your options. Joey is not an attorney, but he is an experienced music professional. Always consult a music attorney, the US Copyright Office or one of the PROs (ASCAP, BMI or SESAC) for advice on your specific situation. Hookist does provide legal advice and this info should not be considered as such.
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