You probably know what copyright is - a piece of intellectual property that the owner has the exclusive right to publish, perform, film, or record. This principle is enshrined in Article I Section 8 of the Constitution to “Promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries". Since then, copyright laws have only become more and more wide-ranging and specific. Although the basics of copyright are pretty easy to understand, music copyright laws are often vague and complex to the average person. So, let’s take a deep dive into US copyright laws and how they apply to music.
There are two kinds of copyrights in the music industry - musical works and sound recordings. Musical works, sometimes referred to as the underlying musical composition, is the composition part, aka the lyrics. Songwriters commonly share ownership with the music publisher. Sound recordings, on the other hand, are the physical recording of the song. Ⓒ is the symbol for the music composition and ⓟ is for the sound recording - the ⓟ is for phonogram. In order for a work to be protected under copyright law, it must be a) original to the author, b) of sufficient substance to be considered a work, c) fixed in a tangible form (CD, sheet music, etc) or on a machine or device (hard drive, computer, mp3).
As I mentioned earlier, copyright law was enacted under the constitution to ” In 1790, the first copyright law was enacted by Congress, which established copyright protection for 14 years with a renewal period of 14 years. This act only protected maps, books, charts, and at this point, the Library of Congress and Copyright Office did not exist - they were created in 1800 and 1897, respectively. Copyright protections were expanded to include musical composers with the Copyright Act of 1831. This also extended the period of protection from 14 to 28 years, but still kept the 14-year renewal period. In 1889, copyright protections applied to public performances. Places like gyms, restaurants, and live music venues need to obtain a public performance license to play music in a public setting. Performing Rights Organizations collect and distribute the royalties to the artists, which I’ll go into a bit later. This copyright act predates copyright protections for recorded music, which doesn’t come until 1909. This major update introduced mechanical rights, aka the mechanical production of songs. This means that an artist will get paid when their composition gets mechanically produced. At this time, this applied to the phonograph, one of the earliest mechanisms to record music. This updated the protection period once again - this time, the renewal period was 28 instead of 14, summing to a total 56 potential years your copyright could be protected.
The next major update to copyright law was the Copyright Act of 1976, which generally speaking, is the basis of our current copyright laws. This act did multiple things to change copyright laws. First, this updated the protection period for the author’s life + 50 years. For example, if you released a song at 20 and died at 70, your work would be protected for 100 years, since you were alive for 50 years after your song’s release plus an extra 50 years. This details the basic rights of copyright holders and codified the doctrine of fair use. Fair use is a doctrine that states that someone can use copyrighted material without permission from the rights holder(s). An example of fair use is a journalist reporting on a song and including a lyric from the song. Synchronization rights were also established in 1976, which means that music synchronized in video games, movies, and TV shows, are protected and are synch fees upfront and granted royalties ongoing. To use music in your own works, you must contact the copyright holder(s) and negotiate a synch license.
Roughly 20 years later in 1995, the Digital Performance Right in Sound Recordings Act was created. This allowed for music creators and record companies (who usually had ownership of the sound recording) to get royalties from digital performances. This was in response to the increasing frequency of unlicensed mp3s and illegal downloads from websites like Napster. In 1998, there were two prominent acts that influenced music copyright - Sonny Bono Copyright Term Extension Act and US Digital Millennium Copyright Act (DMCA). The Sonny Bono Act extended the period of protection once again; the renewal period of protection was extended. This updated the protection period for the author’s life + 70 years. For example, if you released a song at 20 and died at 70, your work would be protected for 120 years, since you were alive for 50 years after your song’s release plus an extra 70 years. The DMCA required webcasters to pay license fees to record companies. This act also protects Internet Service Providers (ISPs) from infringement if they remove the alleged infringed material on their website. In addition, this heightened punishment for copyright infringement on the Internet specifically.
The latest changes to copyright law in the US is the Music Modernization Act of 2018. This addressed problems that digital music providers, (DSPs) like Spotify and Apple Music, were facing in the digital age. This act improved payments to songwriters and streamlined the music licensing process for audio-only, on-demand streaming. The act did 3 main things.
Created a blanket license for DSPs to offer downloads and streams
Created the Mechanical License Collective (MLC) to administer blanket licenses
Created a public database of songs, their owners, and the percent ownership and matches writers to their compositions and sound recordings
Now, let’s discuss the 6 exclusive rights that copyright owners have.
Reproduction - the right to reproduce a work in copies
Vinyls, cassettes, CDs, sheet music, digital files, streams
Distribution - to sell the coped works, import/export, aka make money
Uploading to Spotify, SoundCloud, Apple Music, etc
Derivative works - a work based on a previous work, such as a musical arrangement, can be changed or adapted
The copyright holder has the right to license modified works
For derivative works, you must need a license from the publisher and the record company
Public performances - the right to perform the copyrighted work publicly; Performing Rights Organizations (PROs) collect and distribute the revenue from this
Display work publicly - applies to any literary, musical, dramatic, choreographic works and pictorial, graphic, or sculptural works
Different from public performances
Ex: putting a lyric on a t-shirt
Digital audio transmission - the right to perform copyrighted work through digital audio transmission
Digital audio transmission can be from the Internet (ex: Pandora), satellite (ex: SiriusXM), or Cable TV
So, what exactly can you and cannot copyright? Only the expression of the idea is copyrightable, which is a bit ambiguous. You cannot copyright a genre - you can’t copyright pop or rock. You can’t copyright a chord progression, like I-V-vi-IV. Your melody is protected under copyright, even if another artist changes the key. Essentially, you own the melody in all the keys. Your lyrics are protected under copyright as well. Even your melodies written in your Notes app or Voice Memos app, it is protected by copyright. Singing it aloud to your friends without proof of it is not copyright protected.
What are the rules with samples, covers, and interpolations? Sampling, the reuse of a portion of a previous recording in a new work, requires a license from the rights holders of the musical composition and the sound recording. Even using a second of a previous recording without crediting the rights holders is illegal, and can result in copyright infringement. Interpolations, on the other hand, is a re-working or re-recording of a musical composition. This could include different performers or different instruments, for example. For interpolation, you only need a license from the rights holder(s) of the musical works. With covers, it is covered under a compulsory license, meaning that the rights holders cannot stop you from recording a cover. However, you must notify the owners of the musical composition and need to pay them royalties.
Now I want to talk about some famous copyright infringement cases and their outcomes.
Robin Thicke, Pharrell Williams vs. Marvin Gaye Estate for “Blurred Lines”
Marvin Gaye’s estate argued that Thicke and Williams stole the “groove” and “vibe” of Gaye’s 1977 hit “Got to Give it Up”. The plaintiffs regularly mentioned a quote from a GQ article with Thicke, saying that one of his favorite songs was “Got to Give it Up” and wanted to recreate the vibe. The case stretched on for 5 years, and eventually Thicke and Williams had to pay $5 million to the estate. I may not be a lawyer, but in my opinion, I don’t believe that Thicke and Williams copied Marvin Gaye. Robin Thicke is a controversial figure, and I believe that could’ve potentially swayed the jury in favor of Marvin Gaye’s estate.
Taylor Swift vs. Sean Hall and Nathan Butler for “Shake it Off”
Hall and Butler were on a “3LW” titled “Playas Gon’ Play”,and they argued that Swift stole their lyrics “players gonna play” and “haters gonna hate”. Swift denied any knowledge of the song before writing her 2014 hit. The plaintiff’s filed the suit in 2017, and went on for 5 years. In 2022, the two parties made a private agreement and jointly filed to dismiss the case. Although this suit never made it to court, I believe that the plaintiff's argument would not have held up. “Players gonna play” and “haters gonna hate” are common phrases, and Swift argued at her young age, she wouldn’t have heard these phrases on the radio, rather, on the playground.
Vanilla Ice vs. David Bowie and Queen for “Ice Ice Baby”
David Bowie and Queen sued Vanilla Ice, whose real name is Robert Van Winkle, for sampling the bass line of “Under Pressure” in his song “Ice Ice Baby” without crediting them. Vanilla Ice argued that since he added an extra beat to the bass line, it wasn’t the same and therefore he didn’t need to credit them. Bowie and Queen were eventually given writing credits after being settled out of court. After the case was settled, Vanilla Ice admitted that he did in fact sample “Under Pressure”, but he bought the rights to the song. In my unprofessional opinion, there was no way this case would’ve held up in court - anyone who knows both songs can recognize that the bass line in “Ice Ice Baby” is clearly the same as “Under Pressure”, and the one extra beat does not make a difference.
I hope everyone enjoyed this deep dive into the US Copyright Law regarding music. Let us know what music industry topics you want us to cover in a future article!
Written By Lauren DiGiovanni
*copyright not intended. Fair use act, section 107.