By Anna Kelberg-Kim, Esq
With the transformation of music industry, independent musicians can now enjoy many opportunities to develop their career. It is exciting and rewarding to have a creative freedom, to control your rights, and make decisions to monetize your music. Besides playing live shows, and hopefully getting paid for it, there are many ways that musicians earn money from their compositions and sound recordings. Most independent artists take advantage of countless ways of distributing music digitally. Sync licensing can be another lucrative source of generating income and expanding the fan base.
Among many other considerations of music monetization, copyright protection is the most fundamental aspect of the music business. And I can’t tell you how many times I have met artists that don’t give enough emphasis on legal protection of their work. Music industry is based on creation and exploitation of artistic works. Copyright law provides artists with exclusive rights to control and reap financial benefits from the usage of their music. I cannot stress enough that copyright registration should be the first and foremost step for every independent musician to consider before distributing their music.
It is true that Music Copyright can be very confusing, boring and tough to figure out on your own. Many still believe that you can effectively copyright your work by mailing a copy of the CD to yourself –so called “poor man’s” copyright. This is a misconception; Copyright Law does not provide such type of protection. But I am happy to share some basic tips to help you make choices concerning copyright protection to your music. Keep in mind every situation is different, and if you have a legal question, it’s best to consult your attorney.
- Copyright is a form of legal protection for original works of authorship fixed in tangible medium of expression (e.g., written down or recorded). Copyright covers both published and unpublished works.
- The owner of copyright has the exclusive rights to reproduce and to distribute copies of the work to the public, to prepare derivative works, to display, broadcast and perform the work publicly. The owner of copyright has the exclusive right to authorize others to exercise any of owner’s exclusive rights.
- As the owner of copyrighted musical work, you have the right to record your music; sell and distribute copies of your music in various formats, such as digital download, vinyl, CD, etc.; sample your music to create a new composition (derivative work); perform your music in various venues; post your music online, such as YouTube, website, social media, etc.; stream your music; and license for sync dealsand for performance on radio, on television, in commercial establishments, or anywhere else where music is publicly heard.
- An original work is automatically copyrighted the moment it is created in a tangible medium, and registration of a work with the U.S. Copyright Office is not a prerequisite for copyright protection. However, copyright registration is highly recommended for musical works to minimize the risk for infringement).
- Registering copyright with the Copyright Office creates a public record of ownership and establishes prima facieevidence of the validity of copyrights. This allows the owner to enforce the exclusive rights and to stop others from exploitation (or infringement) of those rights without owner’s permission. If the work is timely registered a copyright owner has an advantage of filing an immediate lawsuit for copyright infringement, and potentially be awarded statutory damages and recover attorney fees.
- Musical work has two copyrights: (1) the musical composition, which includes the notes and lyrics, and (2) the sound recording, which is the recorded performance of a musical composition captured in various formats. There can be more than one copyright sound recording to the same composition. Just as well as there can be different authors to the musical work that are paid differently for their contribution as co-authors. It is important to keep this distinction in mind when registering your work with the Copyright Office. Not every application for copyright registration is the same: among other things, it should reflect the author or authors of underlying composition and recorded performance. Depending on the circumstances or contract terms of the artists, a composition may be registered on its own or together with the sound recording, or sometimes registered as separate applications.
- The author of copyrighted work can sell, assign or transfer the copyright to anyone else, but only in writing. The owner can also give permission or grant certain rights to exploit musical work by way of license, whereby the owner retains copyright in the work. A license allows someone to use musical work in specified way for a limited period of time. For example, a reproduction of your song and distribution of it on CDs or digital downloads requires to obtain a mechanical license, or placing your music in TV commercials or feature film requires synchronization and master use license.
- There are some exceptions to consider: If the author creates a musical work under a “Work Made for Hire” agreement, as commissioned work or work created during the course of employment, the copyright in a such work is owned by an employer.
Anna Kelberg-Kim is an entertainment attorney, and represents a diverse roster of clients in music industry as well as literary artists, filmmakers, visual artists, performers and performing arts organizations. Anna combines business and legal knowledge of the industry to offer comprehensive representation to entertainment professionals on matters pertaining to Copyright and Trademark; Clearance and Licensing rights; Formation of Business Entity; and Contract Drafting, Review, and Negotiation.
You can contact Anna at her email at: firstname.lastname@example.org or at +1 216 287 9678