Susan Faber Gaide, president of ChromeOrange Music, taught Music Publishing and Copyright at a small music college for 36 years as part of a music business program she developed in 1984. On the first day of class, students were always mystified by copyright law and the way music publishing works. And most had misconceptions about it. Gaide called it the “myths and legends” syndrome.
Unfortunately, there is too much misinformation running around the internet, mostly written by self-taught “experts”—those who have simply misinterpreted what they have read about copyright law as it applies to music.
In this blog post, we're going to address 6 basics of music copyrights that all aspiring artists and songwriters should commit to memory.
1. Copyright Registration
The only official means of registering songs and recordings for copyright protection is through the U.S. Copyright Office’s eCO system (electronic copyright). You simply cannot trust the many websites that claim to handle registrations for songwriters and record producers. The best way to protect your intellectual property rights is to register your songs and recordings for copyright protection through the U.S. Copyright Office.
The fee for copyrighting a song or a recording is $65. Compilations (groupings of unpublished works) cost $85.
You can pay for your copyright registration with a bank account or with a credit card. Or, you can create what’s called a “deposit account” with the U.S. Copyright Office. Once you establish your account, you fund it, and then when you copyright a song or a recording, you simply enter your deposit account number and the money is deducted from your account. In that way, it works very much like a bank account.
An important word of caution: Do NOT attempt to copyright your songs and recordings by mailing them to yourself and leaving the envelope unopened until there is a problem. This is one of those myths and legends we talked about at the beginning of this article. It’s called “The Poor Man’s Copyright.”
The majority of judges will not accept The Poor Man’s Copyright as evidence in a copyright infringement litigation. Most will only accept an official copyright registration certificate issued by the Copyright Office/Library of Congress. You must be prepared to present the official registration certificate as evidence that you have properly secured copyright protection for your song or recording.
2. Songs and Recordings are Two Separate Intellectual Properties
By definition in the U.S. Copyright Law, a song is comprised of a melody and lyrics. Harmonic structure is not copyrightable. That’s because no one can own any particular chord pattern. On a practical level, if it would ever have been possible for anyone to exclusively own a chord pattern, the music industry would have dried up a long time ago.
The problem is that producers who produce "beats” have caused a blurred line in terms of copyright because the track is produced before the melody and lyrics are written. Usually, those are written on the spot by a vocalist who engages with the producer to complete the track by singing a lead vocal (usually composed on the spot by the vocalist).
That scenario begs the question: Is the song owned by the vocalist or the producer, or both?
To look at the situation from a practical perspective, the track would not be complete without the melody and lyrics composed by the vocalist. Then again, there isn’t much you can do with only melody and lyrics except produce an a cappella recording. So, the two go together like a hand and a glove.
On the one hand, the producer and the vocalist should own the song and the recording 50/50. But there is a problem inherent in that co-ownership.
What if the vocalist is offered a recording contract, but the record label doesn’t like the production? What if they only want the vocalist and the underlying song?
And further, what if they want the vocalist to sign a full publishing deal with their affiliated music publishing company? That presents a problem because the song is intertwined with the production. (Yes, you can copyright them as a single intellectual property as long as the authors and claimants are the same.)
And then let’s suppose that the producer of the recording is opposed to the deal offered to the vocalist. It’s a legal conundrum waiting to happen.
Gaide's advice is to copyright the melody and lyrics as the song (known in copyright terms as a “work of the performing arts”) and copyright the production, including the vocalist’s performance of the melody and the lyrics, as what is known in copyright terms as a “sound recording.” (And now you know why, when copyright registrations were still submitted via paper forms, the forms were called PA and SR, respectively.)
3. Copyright “Ownership” is not Absolute
Just because you register your song or recording for copyright protection, it doesn’t mean that you absolutely own either of them. Unlike trademarks and patents, copyrights are not absolute. Somewhere out there, there may be someone who composes a song that sounds eerily like yours, either from a lyrical standpoint or a melodic standpoint, or both.
So, you may end up in court, where you must be prepared to defend your copyright "ownership." It starts with the dates upon which each of the copyrights was secured and the dates upon which the claimants claim to have completed their works. After that, copyright lawsuits are largely dependent upon musicologists, who normally possess a music doctoral degree and are considered expert witnesses. They compare the two works and opine to the court as to their similarity or dissimilarity.
4. Copyright Claimants vs. “Owners”
When you register your copyright through the eCO system, you’ll notice that one of the first screens you will complete is the identification of the author(s) of the work. The very next screen after that is for the identification of the claimant(s). Please note the designation of “claimant(s),” not “owner(s).” That’s because, as pointed out in the last section of this article, copyright ownership is not absolute.
When you register your song or recording for copyright protection, the registration establishes a claim of ownership. Hence, the term “claimant.” The author is the person(s) who composed the song or produced the recording. The claimant is the person(s) or entity that claim ownership of it.
A third designation on the copyright registration is “owner of exclusive rights.” That designation is for individuals and entities that acquire a copyrighted song or recording though contractual means or via sale of the copyright. I mention this because it is important that you properly designate your relationship to the copyrighted work. Do not choose owner of exclusive rights when you should actually be the claimant.
5. Names, Logos and Song Titles are not Copyrightable
If you want the exclusive use of your band name, do not attempt to copyright it. Names are not copyrightable. Names must be trademarked, and that’s a subject for another blog post. For now, you’ve got two options for trademarking: 1) Navigate the USPTO website and application and navigate the process yourself (not recommended), or 2) Hire a competent trademark attorney to assist you with the application (highly recommended).
Likewise, song titles are also not copyrightable. And, they’re hard to trademark. The reason is pretty simple: there are only 26 letters in the English alphabet and only so many ways that even the most creative songwriter can arrange them. As a result, numerous songs whose genres, tempos, melodies and harmonic structure vary wildly from one another end up sharing one most basic element in common: their title.
Sometimes the title is an exact match, like “Jump” (Van Halen) and “Jump” (The Pointer Sisters).
Sometimes the titles are so similar that they’re easily mistaken for each other. For instance, “I Will Always Love You” (written and recorded by Dolly Parton and later recorded by Whitney Houston) and “I’ll Always Love You” (written by Jimmy George and recorded by Taylor Dayne).
What’s not acceptable is when there is duplication of lyrics or melodies to the extent that the two songs sound identical or nearly identical.
This scenario very famously played out a number of years ago when Michael Bolton was sued for infringing upon The Isley Brothers’ classic “Love is a Wonderful Thing.” The Isleys won. If you listen to their “Love is a Wonderful Thing” and Bolton’s song by the same name, they sound eerily similar. In fact, they are so similar that the average listener could easily believe that they are the same song.
6. Deposits
Deposits are not to be confused with deposit accounts, which we already covered earlier in this article. Deposits are the copies of the song or recording (.wav or mp3 files) you must upload at the time you register the work for copyright protection.
For songs, the file must clearly showcase the melody and lyrics. The file you send does NOT need to be a fully-produced recording. Piano or guitar and vocals are all you need to illustrate the copyrightable elements of a song.
Sound recordings should be the final mastered version of the track, not a “demo” or basic-tracks sketch. The sound recording copyright protects the recorded arrangement and production of the song, so you should send the final mixed and mastered version of it.
Be sure to keep checking this blog, as we’ll be posting more about copyrights and licensing in future articles.
ChromeOrange Music is a New York-based record label and music publishing company with a catalog of original music for film, television, video games, internet and broadcast advertising, print and other music licensing applications. Our music has been licensed in over two dozen countries and on television networks like National Geographic, CNN and Telemundo. Please visit our Music Catalog page to access clips of music that span a wide range of genres and moods.
For more information about music licensing, call us at (631) 648-7446 or use the form on our Contact page to send us a message.