Photo Credit: Wesley Tingey

Part I of this article discussed the different type of works and copyright rights in music. In Part II, we discussed different types of music licenses. In this final part of the article, we’ll discuss what happens when someone does not have a license to use the musical work or sound recording and the use is not otherwise allowed by the law. This is known as copyright infringement.

When is a Musical Work or Sound Recording Infringed?

Anyone who, without the authorization of the copyright owner, engages in an act that is covered by one or more of the exclusive rights of a copyright owner is an infringer of copyright unless:

1. The musical work or sound recording is not protected by copyright (for example, if it’s in the public domain); or
2. The act is permitted by an exception in copyright law.

In other areas of law, in order to be culpable, the actor must have had knowledge or intent to do the wrongful act. Not so in copyright. Copyright infringement is determined without regard to the intent or the state of mind of the infringer. In other words, it makes no difference whether the infringer knew what they were doing constituted copyright infringement. The only time that the actor’s state of mind may come into play is when a court is determining how much money in to award to a copyright owner in damages for the infringement.

How To Prove Copyright Infringement

Courts usually require a copyright owner to prove that they owned the copyrighted work, and the defendant violated one of the exclusive rights of the copyright owner. In a case where infringement of the reproduction right is alleged, since there is seldom direct evidence of the offending act, a copyright owner may prove infringement through circumstantial evidence establishing that: (1) the defendant had access to the original work, and (2) the two works are substantially similar.

It is not necessary that the entire musical work or sound recording be copied for an infringement of the reproduction right to occur, nor that the copying be literal. All that is necessary is that the copying be substantial and material and that protected expression is copied. Likewise, the similarity between the two works must also be a similarity of protected elements, not unprotected elements. For example, in music, this means that copying of common musical ideas like chord progressions or basic scales will not qualify as copyright infringement, but copying of more unique melodies might.

The portion taken by the alleged infringer must also be more than a trivial amount to qualify as infringing. In music, this issue usually arises in the context of sampling. In most instances, a license is needed to use a sample of another song in your song. Typically, sampling (without a license) is only permissible in very limited circumstances, where the quantity and quality of what is taken is considered to be insignificant. 

Remedies for Copyright Infringement

If one or more of the exclusive copyright rights of the owner of a musical work or sound recording have been infringed and the copyright owner wishes to seek monetary damages and profits, attorneys’ fees, and/or an injunction, they can initiate a lawsuit in federal court against the alleged infringer for civil copyright infringement. Before a copyright owner can initiate a copyright infringement suit in federal court, they must have applied for a copyright registration with the U.S. Copyright Office for the work at issue in the case and the Office must have rendered a decision om the copyrightability of that work by either issuing a registration or rejecting the application on copyrightability grounds. 

The various remedies for copyright infringement in federal court are available to copyright owners who registered their works in a timely fashion. These remedies are explained in detail below.

• Injunctions: In federal court, a copyright owner may seek a preliminary or permanent injunction to prevent or restrain the infringer from continuing the infringement. Courts often grant permanent injunctions where liability is established and there is a threat of continuing infringement.
• Damages: At any time before final judgment is rendered, a copyright owner may elect to recover either (i) actual damages and profits of the infringer or (ii) statutory damages (i.e., damages determined by the statute, here the Copyright Act). Actual damages may be awarded in the amount of the copyright owner’s losses plus any profits of the infringer attributable to the civil copyright infringement. Statutory damages are only available when the copyright owner registers their work with the U.S. Copyright Office either (1) within three months of publication of the work, or (2) before the infringement starts. Statutory damages in federal court may be awarded in an amount between $200 and $150,000 per work infringed, with the former available only for “innocent infringers” and the latter available in cases of willful infringement. Remember, intent is not necessary to prove infringement, but it is factored into a court’s analysis on damages. 
• Court Costs and Attorneys’ Fees: Federal courts have discretion to allow the recovery of full court costs by or against any party, including the awarding of reasonable attorneys’ fees to the prevailing party under certain circumstances. However, plaintiff copyright owners cannot be awarded attorneys’ fees unless they have timely registered their works with the U.S. Copyright Office.
• Impoundment and Destruction: Federal courts may order the impounding of infringing goods at any time an action is pending. As part of a final judgment, the court may also order the destruction or any other reasonable disposition of the infringing goods.

An Alternative to Federal Court—the Copyright Claims Board (CCB)

The Copyright Claims Board (CCB) is a voluntary alternative to federal court for resolving certain types of small copyright disputes. The total monetary damages that can be awarded by the CCB is limited and cannot exceed $30,000 in one case and $15,000 per work. The CCB also cannot issue injunctions. However, if the parties reach an agreement where one party agrees to cease a particular conduct, the CCB can include a requirement in its final determination that the party abide by the agreement to cease the conduct. As a general rule, at the CCB, parties must pay their own attorneys’ fees and court costs. The CCB is often used instead of federal court where the infringement is not a large amount and/or the copyright owner may not be able to afford the cost of litigating in federal court.

Conclusion

Obviously, there is much more that we could discuss when it comes to music copyright. After all, there are many books written on the topic. Hopefully, the information provided in the three-part series offer a strong foundation for you to understand your basic rights and how to license your music to someone and what to do if they use it without your permission. It may have also sparked an interest to learn even more about music copyright. 

If you’re still looking for more information, here are few additional resources from the U.S. Copyright Office that we’d recommend:

• What Musicians Should Know about Copyright
• How Songwriters, Composers, and Performers Get Paid
• Musical Works, Sound Recordings & Copyright
• Sampling, Interpolations, Beat Stores, and More: An Introduction for Musicians Using Preexisting Music

If that’s not enough, two other books you might find helpful include All You Need to Know About the Music Business by Donald S. Passman, which includes information about the legal financial and practical information about music copyright and is considered by many to be the industry bible on music copyright; and Music Money and Success by Jeffrey and Todd Brabac, which includes detailed information about licensing and royalties. 

And don’t forget to join the Copyright Alliance’s FREE Creator Membership to continue your educational journey on how to protect your creative work.

In Part I of our Understanding Copyright in Music series, we explored the different types of works and copyright rights in music. In Part II we’ll discuss different types of music licenses.

There are many kinds of music licenses. What and how you license will depend on the type of work you are licensing—whether it is a musical work or sound recording (or both)—and what kinds of uses you are allowing the licensee to do with your work. Below is a list of several types of music licenses and how they are used:

Public Performance License

A public performance license grants someone permission to play a song in public, whether to a live or online audience. Recall that a performance is considered “public” when the work is performed in a public place, at a place where a substantial number of persons outside a normal circle of friends and family are gathered, or is transmitted to the public. If someone wants to publicly perform a musical composition, they must obtain a public performance license to do so. 

The owners of the public performance right in the underlying musical work typically authorize a Performance Rights Organization (or PRO), such as ASCAP, BMI, SESAC, and GMR, to license these rights. As discussed in Part I, owners of sound recordings only have a public performance right when the performance occurs by means of a digital audio transmission. That right is administered by Sound Exchange. But no license would be required when the transmission of the sound recording is by a terrestrial or other non-digital transmission, for example over broadcast radio. 

Mechanical License 

A mechanical license grants someone permission to reproduce and distribute a copy of a musical work and is required when someone wants to create and distribute copies of a song—whether in physical or digital form or whether it’s a recording of an original song or a cover version. This is because in all these examples, the musical work is being copied or a copy of it is being distributed. For example, if someone wants to use the musical work in a CD, a vinyl record, or a digital download of a song, they’ll need a mechanical license.

The Mechanical Licensing Collection (MLC) administers blanket mechanical licenses for musical compositions to eligible digital streaming and download services. A “blanket license” is a single license that allows the licensee to use any musical work in a catalogue. In the case of The MLC, the blanket license covers all musical works in the United States. The alternative to a blanket license is song-by-song licensing, which requires a licensee to obtain a license for every song they want to use on an individual basis. The blanket license covers interactive streams, limited downloads, and permanent downloads. The MLC does not administer public performance licenses for musical compositions (including for digital radio, or “non-interactive” streaming), and does not administer any rights for sound recordings.

Other organizations also administer mechanical licenses for other uses. For example, the Harry Fox Agency issues licenses for creating and distributing cover songs. Mechanical licenses can also often be obtained directly from the music publisher.

Print License

A print license is a license that allows someone to rearrange, print, or display the music notes or lyrics of a musical work in print. This type of license is required to reproduce or display sheet music or lyrics of a song in printed form. The difference between a mechanical license and a print license is that a mechanical license covers audio reproductions, while a print license covers printed reproductions.

Synchronization (“Sync”) License

A synchronization license (“sync” license) is a license that allows someone to use a musical composition along with a video in an audio-visual work. For example, a songwriter or music publisher would grant a sync license to someone who wants to use a song in a video format, such as a movie, TV show, advertisement, or video game. It would not give them the right to use a sound recording of that musical composition. In order to use the sound recording in the audiovisual, the licensee would also need to obtain a master use license from the owner of the sound recording rights. 

Master Use License

A master use license is a license that allows someone to use a particular sound recording in, for example, a movie, television show, or advertisement. Master use licenses are usually available from the record label. Many of the licenses listed above are particular to and only apply to the musical work. The master license is different in that it a license that someone gets from the owner of the master recording of the sound recording. 

Understanding Licenses is Important to Getting Compensated and to Protect Your Music

Understanding your rights and the various types of music licenses is important since the terms of those licenses will specify what rights you are licensing and how someone is allowed to use your musical work or sound recording. These licenses will also specify how much and when you will be paid for allowing such use (i.e., your royalties) and for how long these payments will continue, as well as many other aspects that govern the relationship between you, the music licensor, and the person or entity who is using your music, the licensee.

Don’t stop your copyright education here! Be on the lookout for Part III of our Understanding Copyright in Music series, and also be sure to check out Copyright Alliance’s FREE Creator Membership for additional educational resources.

Photo Credit: Troy T

The creation and delivery of music to audiences requires collaboration between a variety of creative individuals and businesses, including songwriters, music publishers, performers, producers, and record labels. All of these creative individuals and many others play an important role in crafting and bringing music to audiences, and it’s important that each understands and appreciates their rights under U.S. copyright law. This three-part series explores those rights by discussing: (i) the different types of works and kinds of rights for music under copyright law; (ii) the different types of music licenses; and (iii) the remedies for copyright infringement.

To understand how music and those who create and distribute music are protected and compensated, one must first understand certain copyright basics, because copyright is the primary means by which songwriters, composers, artists, publishers, and other music creators are protected and compensated for their works. To understand copyright in music one must understand that there are two distinct kinds of copyrighted works in any given song—a musical work and a sound recording.

Two Types of Copyrighted Works Protected in a Song

Copyright law protects original works of authorship, including literary, dramatic, musical, audiovisual, and visual works. Examples of such works are movies, novels, songs, computer software, and photographs. Importantly, in the area of music, there are two different types of copyrighted works:

• Musical Works: These include any work that consists of musical notes and lyrics in a musical composition.
• Sound Recordings: These include any work that results from the fixation of sounds without a visual component, whether musical or spoken. This is the music you actually hear, and it includes digital downloads, music on CDs and vinyl, podcasts, and recorded speeches.

It’s important to be aware of these distinct types of copyrightable works because there are likely different copyright owners for any one given song, different kinds of music licenses, and slight differences in the kinds of rights in copyright law for these works. 

The Exclusive Rights in Musical Works and Sound Recordings

The Copyright Act grants the following exclusive rights to copyright owners of musical works and sound recordings, subject to certain limitations and exceptions:

Reproduction Right

The reproduction right grants the copyright owner of the musical work or sound recording the ability to control the making of a copy of the work. It is arguably the most important of the rights as it is implicated in most copyright infringement disputes. For example, uploading music to a website implicates the reproduction right.

Adaptation Right

The adaptation right, which is often referred to as “derivative work right,” grants the copyright owner of the musical work or sound recording the right to control the modification or adaptation of their works into new works, often referred to as “derivative works.” Derivative works include any type of editing, translating, modifying or making other types of changes to the work. An example of an activity that implicates the adaptation right includes revising the musical arrangement of a song, making a song parody, or remixing of a sound recording.

Distribution Right

The distribution right grants the copyright owner of a musical work or sound recording the ability to control the manner in which a work or a copy of a work is transferred to others, whether by sale, rental, lease, or lending. This right allows the copyright owner to not only prevent the distribution of unauthorized copies of a work (i.e., copies that infringe the reproduction right), but also allows the copyright holder to control the unauthorized distribution of authorized copies (subject to a limitation commonly referred to as first sale exception). For example, uploading a music file to a website or “lending” digital files like a sound recording would implicate the distribution right. In the digital environment, often a violation of the distribution right is accompanied by a violation of the reproduction right.

Public Performance Right

While this public performance right is one of the most important to music creators, it is also one of the most complex of the exclusive rights because it applies to musical works but not to sound recordings (but see below for more). 

A performance is considered “public” when the work is performed in a public place, at a place where a substantial number of persons outside a normal circle of friends and family are gathered, or is transmitted to the public. The public performance right vests the copyright owner of the musical work with the authority to control the manner in which a work is publicly performed. Examples of activities that implicate the public performance right include streaming music over the internet or playing music at a public event or venue.

As noted above, while owners of the musical work enjoy the exclusive right to perform their works in public, sound recording owners do not. Currently the United States is one of the few countries in the world that does not recognize a full public performance right for sound recording owners. Copyright owners of sound recording get a much more limited public performance right—the exclusive right to publicly perform the sound recording when the performance occurs by means of a digital audio transmission.

Public Display Right

The public display right applies only to musical works, not to sound recordings. It allows the owner of the musical work to control the display of the musical work to the public (as the term is defined in the paragraph above). The most common examples of a public display of a musical work would be where someone displays lyrics on a website or shows sheet music in a classroom.

Understanding Exclusive Rights Under Copyright Law in Music is Important for Compensation and Enforcement 

If any of the rights above are implicated by someone’s use of copyright-protected music, and such use is not authorized by the copyright owner of the sound recording or musical work or otherwise allowed by the law, for instance under the fair use exception, the user has infringed the copyright owner’s rights. We’ll discuss that more in Part III about music copyright infringement. 

While you are waiting for Part II and Part III, we encourage you to check out the Copyright Alliance’s FREE Creator Membership, which provides a wealth of education resources for you to explore on copyright law.