The 3 Most Common Misconceptions About Music Copyright

Plus a Bonus One For Good Measure

Copyright

When it comes to music, copyright can be tricky. A lot of musicians just do not understand how copyrighting works. While I certainly won’t be covering everything there is to know about music copyright today, I am going to talk about the three most common misconceptions about music copyright.

These will help you protect your own copyrights, learn when and how to license someone else’s copyright, and will give you a better understanding of copyrighting in general.

1. No License? No problem!

First on the list is the one that I hear most often. That you don’t have to pay a licensing fee when covering, mashing up, or remixing a song if you aren’t selling copies or making money off of it. This is not true. You are required by U.S. copyright law to pay a mechanical licensing fee when covering a copyrighted piece of music REGARDLESS of if you are making money off of it. (I talk about mash-ups and remixing briefly in italics at the end of this section if you are interested).

When licensing a cover song Harry Fox Agency is your best friend! They make it dead simple to aquire the appropriate licenses from pretty much any song you can think of.

While there are specific cases in which you don’t need to pay a licensing fee, it is best to always assume that you do. Unless of course you like getting sued for potentially millions of dollars for infringing on another persons copyright.

There are four specific ways in which you do not need to pay a licensing fee for using someone else’s copyrighted works and they are:

1. Getting the copyright owner’s consent in writing beforehand stating that you can utilize their copyright without a licensing fee. This one is highly unlikely unless you personally know the copyright holder, and they aren’t signed to a record label or publisher.
2. Fair use (e.g. parody). It is important to note that fair use is a defense in the court of law, which requires you to be sued before claiming fair use. The ownus is on YOU to prove that your use of the copyright is covered by fair use. This will require a lawyer, many many hours, and lots of money. I would highly recommend just paying the licensing fee, and getting the parody cleared by the copyright holder first.
3. Creative commons license. If you are an electronic musician rejoice! A lot of successful artists in the EDM space make their music available under a creative commons license. If you know for a fact that they do, then make sure to follow the creative commons rules and you are good to go. If there is any doubt, even a little, that a song is under a creative commons license, do a little research, reach out to the artist, or do whatever you can so you can be 100% positive. The last thing you want is to get your YouTube account deleted, your SoundCloud account shut down, or worse; get sued in federal court for copyright infringement.
4. The song is part of the public domain. (PD Info is a good place to check out songs in the public domain). After the U.S. joined the Berne Convention in 1988 a copyright lasts for the life of the author, plus seventy years. After that, the copyright enters into public domain. You can use the underlying composition to your hearts desire for any song in the public domain, but you cannot use any part of the original sound recording without a proper license. So underlying composition can become public domain, sound recording cannot.

IMPORTANT: A cover technically uses the underlying composition, and not actual sounds recorded from the original track. Mash-ups and remixes that include parts of the original recording require a special license, and authorization by the copyright holder or their estate, because it is not covered under a standard mechanical license.

Also a cover, by U.S. Copyright definition, does not substantially change the lyrics, melody, or underlying composition of the song. So if you are recording a version that substantially changes any of these things i.e. taking the lyrics and completely changing the melody, then you are required to get a special license.

If the artist offers a creative commons license, remixing, and mashing-up may be covered. Check their specific license and the Creative Commons rules to be 100% positive!

Parodies by the most strict definition do not require a license, but as I stated, if the artist feels their copyright is being infringed upon you may be sued. I would highly recommend going through the proper channels to get the parodied cleared, and licensed to avoid having to show up in court.

2. $35, I Ain’t Paying No $35

Number two on the list is what’s referred to as a poor-man’s copyright. A poor-man’s copyright is simply snail mailing a physical copy of your song, or works to yourself, and keeping the unopened piece of mail with a dated stamp to prove that you are the original copyright holder.

This is not a reliable method of copyrighting. Courts have denied musicians their copyright because of this method, without having further proof that they were the original copyright holder.

A much more reliable, and foolproof way to protect your copyrights is to register your works with the U.S. Copyright office at copyright.gov/eco. It costs only $35 per copyrighted work, and offers you the highest protection against infringing uses of your music.

IMPORTANT: A creative work is innately granted a copyright upon conception in a fixed medium (e.g. written down on paper, or recorded onto tape, in a DAW, etc). However, a registered copyright is afforded much more protection. Like the right to sue in a federal court of law, and guaranteed minimum damages for infringement. A non-registered copyright is still protected, but not to the same extent, and it can be much harder to prove damages/infringement.

3. There Can Be Only One

Rounding out the list at number three is the belief that a song has only one copyright. Now this one is so common because of a general misunderstanding about how U.S. copyright works with music.

A song has one copyright for it’s underlying composition and lyrics, so think sheet music, or the song itself in an unrecorded state. A song also has a second copyright for the fixed recording (whether that is digital, or in a physical format no longer matters, just that it is a FIXED recording that they can have a copy of, and compare against in the case that you are suing or being sued for infringement).

There can be only one copyright for the underlying composition. So the person who originally wrote it naturally gets the copyright. However, there can be one sound recording copyright for EACH RECORDED VERSION of a song. Meaning if you wrote a song, but have three different recorded versions of it, you could file one copyright for the composition, and three copyrights for the sound recording.

Similarly, if you covered Michael Jackson’s “Thriller”, his estate owns the underlying compositional copyright, but you can file a Form SR (sound recording) copyright as long as you properly license the right to do so (hint hint, harryfox.com)

This means that you have a right to make money off of the performance of your song by another person, as well as the use of your recorded version of the song, whether you are the copyright holder or not (granted that you properly licensed the copyrighted work in the first place).

IMPORTANT: Why a separate copyright for the underlying composition, and the fixed sound recording? We want to encourage other artists and musicians to utilize already registered copyrights. If they can cover a song for the mechanical rate (9¢/copy) and can protect THEIR version of the copyright (the recording that they made) then they are more likely to do so. This is the healthiest way to encourage creativity, and capitalism.

Bonus Tip #4

4. Copyrighted

When you copyright a piece of work it is copyrighted not copywritten. In fact copywriting is something entirely different than copyrighting. (Try saying this sentence outloud to someone. It’s fun to see their expression).

Copywriting is the marketing and advertising practice of writing copy. The carefully crafted words and messages on a client’s website, advertisement, etc.

Copyrighting refers to the act of claiming the right to an intellecual property (in the case of music either the underlying composition, or the sound recording) of an individual, group of individuals, or company (e.g. record label, or publishing company).

Now to you!

• What is the most surprising misconception about music copyright to you?
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