Intellectual Property Newsletter
U.S. Copyright Protection for Music & Band Members
A copyright is protection provided by U.S. law to authors of original works, including literary, dramatic, music, and other works. Under current law, a copyright is automatically granted when a work is created and “fixed” in a copy or recording for the first time. Registration may be advisable, but is not required. Although copyrights have been around a long time, it is only relatively recently that written transcriptions of music, and sound recordings, were accorded federal copyright protection. A copyright gives its holder exclusive right to engage in or authorize the following acts:
- Reproduction of the work in copies or recordings.
- Preparation of “derivative works” based on the copyrighted work.
- Distribution of copies or recordings to the public by sale, rental, lease, or loan.
- Performance of the work publicly.
- Display of the copyrighted work publicly.
- For sound recordings, performance publicly by means of digital audio transmission.
Two Kinds of Music-Related Copyrights
U.S. copyright law allows copyrights to be granted for “musical compositions,” defined as musical works, including accompanying words, which are fixed in some tangible medium of expression, such as sheet music. Musical works include original compositions and arrangements, or new versions of earlier compositions to which new, copyrightable authorship has been added.
A copyright may also be granted for “sound recordings.” These are defined as works that “result from fixation of a series of musical, spoken or other sounds, but not including the sounds accompanying a motion picture or audiovisual work,” such as in recordings of music, dramas, or lectures. This copyright protects these fixed sounds from unauthorized reproduction, revision, distribution, and certain unauthorized public “performances.” Sound recordings include cassettes, CD’s, LP’s, 45’s, and other formats. Two elements of recordings are protectable:
- The contribution of the performer(s) whose performance is captured; and
- The contribution of the person(s) responsible for capturing and processing the sounds to make the final recording, such as the producer, etc.
The author or composer of the work is usually entitled to the copyright, but an employer who hires an artist may be entitled to the copyright if the artist’s work is prepared within the scope of the employment, or is ordered or commissioned for certain specified uses. The parties must, however, agree in writing that the work will be considered a “work made for hire.”
Joint Ownership of Copyrights
As a practical matter, musical compositions and performances are often collaborative. The U.S. Copyright Act therefore allows for co-ownership of a copyright. Under the law, a “joint work” is one where two or more authors intend for the work of each to merge into one work. The co-creators do not even have to do the work together or in the same place, as long as there exists an intent to create a joint work. Each must, however, make an independently copyrightable contribution to the work; mere ideas, advice, assistance, and suggestions are usually insufficient.
The joint authors/creators of the work automatically become co-owners of the copyright, unless there is an agreement to the contrary. All co-owners are entitled to exploit the copyright, modify the work, and/or grant a license to others, whether or not the co-owners agree, so long as proceeds/profits are shared equally among co-owners. Even if one co-owner contributed more (time, resources, etc.) to developing the work, the co-owners share the proceeds and profits equally, absent a contrary agreement.
Agreement Among Group Members
Many musicians write music and songs together as a band or other group when they are just getting started and are not focused on copyrights and division of profits. They may not register for copyright protection or otherwise record authorship. As noted above, the copyright still exists, but the owner(s) may not be clear. Ownership of rights to the works usually depends on who are the authors, but claims and contributions of the members (as well as others outside the group, including record producers) may make this difficult to determine at a later date.
If the determination and allocation of ownership and profit is made contemporaneously with the creation of the works in an agreement, the determination may be easier, but if it is not written down or the allocation is left until later, problems may arise, particularly if the work is a financial success. Many music professionals therefore recommend that even fledgling groups (or an attorney for them) prepare an agreement to deal with such issues as:
- The name of the group and (trademark) ownership rights to that name.
- Voting rights on issues affecting the group.
- What happens when a member leaves, i.e., payment for ownership rights in the group and its music and recording, plus outstanding and future profits.
- How new members will be treated and recruited.
- Division of profits and losses among the members.
- Rights to songs, music, and sound recordings.
- Under what circumstances the group will be dissolved.
Absent such an agreement, the relative rights and entitlement to the music, recordings, royalties, profits, etc. may have to be settled in court. Copyrights must be settled by a federal court and the division of profits, etc. may be decided pursuant to state law applicable to partnerships, corporations or other entities, depending on the nature of the group. Such litigation can be expensive, time consuming, distracting, and, in the end, unsatisfying.
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