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Your Music and Copyright

In an attempt to be objective and viewing matters through the lens of a music artist who has no background in law, which could have enabled a basic understanding of intellectual property – most certainly, there is a huge chance that anyone short of a legal practitioner will similarly struggle with the understanding of music copyright. Music exists in the realm of abstraction, it cannot be seen or held as one would a tangible property such as a cell phone or a piece of furniture. To put things into clearer perspective, music is categorized as an intellectual property which is basically a description of a set of intangible assets owned and legally protected. The concept of intellectual property relates to the fact that there are certain products by humans such as musical works, which cannot be afforded the same protective rights as a tangible property.

Now Copyright is an intellectual property term which gives the holder exclusive right to reproduce, publish or sell his or her original work of authorship (as a literary, musical, dramatic, artistic, or architectural work). In 1886 most of the countries in the world – except for a list of about 17 unparticipating countries which, however, joined a parallel treaty – gathered together in Berne, Switzerland to agree that music (literary work) is automatically copyrighted and protected the moment it is fixed in a permanent form.

The development simply dispenses with the requirement for registration. Essentially, this means that once an artist or music creator conceives, develops, produces and stores his or her music in a fixed form such as a Flash Drive, Compact Disc or even in the Cloud as technological advancement has made possible, the music is automatically protected and copyrighted and such artist shall be termed as the original author of the musical work; and only the author can commercially exploit or give permission to a third party for the exploitation.

We have established what copyright is generally, next we will dig deeper into the concept of musical copyright – this might be a tad mentally draining for emerging artists who, more or less are like the greenhorns of the music industry.

Diving right into it, copyright in music is categorized into two: Composition (sometimes called Publishing) and the Sound Recording (also termed Masters). It is vital to understand the fine line in-between the two forms of music copyright. A score of unnecessary copyright infringement lawsuits can be avoided by songwriters, performing artists and music users at large if only there was a moderate grip of music copyright. The understanding of music copyright stresses ownership – who owns what? Who is entitled to the associated proceeds flowing from the exploitation of such intellectual property right? As stated previously, a musical work, for copyright purposes, is divided into two. The first is Composition, which, refers to the unique qualities that define a song, such as its lyrics, melody and structure. The composition copyright belongs to the songwriter and/or the Publisher. The second which is Sound Recording represents the specific recording of that Composition. The resulting recorded sound constitute an independent intellectual property which is completely separate from the Composition; and is owned by either the performing/recording artist or the record label such performing artist is signed to. Hence, a musical work can have several different people owning either of the copyrights.

For clarity, let us consider this illustration:

Bert is an excellent song writer. His talent is highly noticeable with his bank of rhyming words which he strings together to make a master-piece. While Ernie is a perfect recording artist. He has the necessary clout, energy and grace to push out records to millions of fans to love. Ernie approaches Bert to write the lyrics to a song named “Lush” which Ernie wishes to record and release. Bert got right to work – pieced various sensory-pleasing words together and concluded the lyrics, which was subsequently delivered to Ernie. Ernie proceeds to a recording studio, mounted the microphone, recorded the lyrics with melodies and released the resulting music.

Relating this hypothetical scenario to the copyright in the music business, Bert, being the original composer of the lyrics to the song “Lush” owns the copyright to the Composition, which makes him entitled to the Publishing Rights. While Ernie, being the recording artist is the copyright holder of the Masters, which refers to the finished work that came out of the recording studio. In a nutshell, the music “Lush” has two copyrights owned by two different people: Bert & Ernie.

While the above example represents a clear example of music copyright ownership, it should not be taken as a rule set-in-stone because different relationships can pan out in the music industry that can even synergize the two music copyright in Ernie despite the fact that Bert wrote the lyrics. (For example, if they agreed to it before Ernie commissioned Bert to write the lyrics) The music business is a very dynamic sector and it shape-shifts from a known form to an eerie form. It is vital to engage a music lawyer to properly guide the artist’s career in the right coordinates so as to protect the artiste’s interests.

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