Music is the lifeblood of many cultural and creative endeavors. Music exists for its own sake, both live and recorded, and is instrumental (pun totally intended) in film, television, and theatre productions as well as a myriad of other venues. There are as many different expressions of music copyright ownership as there are different ways music is used. So buckle in, let’s talk about who owns what, when, and how.
First, as you may know, a copyright is created when an author fixes a work of sufficient originality in a tangible medium. If you compose a power metal song you call “Copy Rites” but never write it down or record it, then you don’t get a copyright. Someone could hear you perform Copy Rites, write it down, and get the copyright for themselves. So the first major step to music copyright ownership is to fix the song in a tangible medium.
I want to talk about how a song is fixed in a tangible medium but let me jump forward a second and talk about who owns the song after it is fixed. Specifically, I want to talk about who owns a song that a songwriter was hired to write and who owns a song written by multiple people. Then I’ll discuss how a song is fixed and how it affects ownership. Lastly, I’ll talk about music publishing, royalties, licensing, and assignment. I’m not going to go into how long a copyright lasts (generally, for works created after 1978 – author’s life plus 70 years or, for works created “for hire,” 95 years after publication or 120 years after creation, whichever is first) because so much depends on when the work was created and the copyright laws in effect at that time. This post will discuss works created under the current law.
A copyright attaches to Copy Rites as soon as the song is fixed. Most of the time ownership of the copyright will go to the author. The major exception to the author getting the copyright is when the work was created “for hire.” There are two ways that a song could be written under the “work for hire” doctrine. First, if you are an employee and you create your song within the course and scope of your employment, then the employer owns the copyright and is technically the author of the song. Second, you will have written your song “for hire” when you are; 1) in writing; 2) hired or commissioned specifically to produce; 3) a contribution to a collective work, motion picture or other audiovisual work, translation, supplementary work, compilation, instructional text, test, answer material for a test, or atlas. As you can see, this second means of producing a work “for hire” is fairly narrow, despite the apparently lengthy list. The parties can’t even make a work “for hire” by agreement; it must satisfy the three elements above.
Joint authorship can be the most complicated part of music copyright ownership. Complicated enough that if you are creating music with others, you should have a written agreement about who owns what. Going through the little headache of writing an agreement can save you from the big headaches of lost royalties or litigation. My apologies if you fall asleep in the next new paragraphs. If you want to skip them, go ahead, but please take away from this that you should have a written agreement with any co-authors. A joint author is one whose contribution would be independently copyrightable. For music that means essentially every part of the song including the melody, lyrics, beat, and instrumental portions. It notably does not include mere ideas, suggestions, or directions. A song is created jointly when all of the joint authors intend to contribute to a single work. So if you compose the music to Copy Rites but use this blog as the lyrics then we are not joint authors because I did not intend to create a song with you. In that case, Copy Rites would be a derivative work, not a joint work.
The intent part of joint authorship is the very difficult part. If the authors typically work in parallel, creating bits of music here and there and join up to put stuff together, was there ever an intent to create a song jointly when they were creating independently? Different courts have different answers.
The Second Circuit has a four factor test it uses to address the intent of an author to co-author a work: 1) the putative co-authors’ decision making authority; 2) how the putative co-authors credit themselves in relation to the work; 3) written agreements with parties other than putative co-authors; and 4) additional evidence of co-authorship. Thompson v. Larson, 147 F.3d 195, 203-05 (2nd Cir. 1998). The Ninth Circuit altered that test somewhat; the court in Aalmuhammed v. Lee kept the first and third factors from Thompson but removed the other two and added a new one: whether the audience appeal of the work and its success are due to the contributions of each putative co-author. 202 F.3d 1227, 1234 (9th Cir. 2000).
The Fifth Circuit, which covers Louisiana, has not yet had to evaluate co-authorial intent very closely, so it has not yet established a rule. However, one district court notes the Second Circuit’s test enunciated in Thompson is well thought out and has been followed by other districts within the fifth circuit. Given the popularity of the Second Circuit’s test in other circuit courts as well as local district courts, it is likely that the Fifth Circuit would follow the Second if faced with the right case. BTE v. Bonnecaze, 43 F. Supp. 2d 619, 622 (E.D. La., 1999).
Co-authors both own 100% of the co-written song. So if we collaborate and I write the lyrics to Copy Rites and you write the music, we both have the full rights to the whole song. I can make and distribute copies of it, you can make and distribute copies of it, and neither of us would really be able to prevent the other from doing so (absent some sort of agreement). Of course, if I make and distribute copies of Copy Rites, I owe you royalties, whether or not you have anything to do with distribution of the song.
Ok, now that we have talked about the basics of who owns the song, let’s talk about how it is fixed in a tangible medium and how fixing it can create new copyright owners. With music there are two obvious tangible mediums: written music and recorded music. Undoubtedly there are other possibilities but these two particular methods illustrate how new copyright owners may be created. If you write down the music and lyrics to Copy Rites, you get the copyright, as I have already discussed. If record yourself playing Copy Rites, you get two copyrights: one in the song, and another in the recording. However, if someone else records you playing Copy Rites, they get the copyright in the recording even though you get the copyright in the song. What this means is that if you want to use the recording for your own purposes, you have to get the recorder’s permission. Also, if a third party wants to use the recording, they have to get permission from the owner of the song, you, as well as the owner of the recording. Most songwriters do not own the copyright in recordings of their songs so that second situation is quite common.
The rest of the music business is built around managing the two copyrights in the song and the recording. Songwriters may start their own music publishing business or they may have their music published by an established publisher. In either case, the publisher would handle licensing and royalties for both copyrights (the specifics of which should be the topic of its own blog post).
As I explained in this post, copyright is really about a bundle of rights. The owner of the rights may allow others to use some or all of the rights. The former is referred to as licensing and the latter is referred to as assignment. Copyrights are licensed by contract and are thus subject to the terms of the particular contract. Assignment is essentially a sale of the copyright. The assignee is the owner of the copyright for all intents and purposes. The assignee can use, license, or assign the copyright to another. However, assigned copyrights revert to the creator after a 35 year period. Basically, if you are the sole owner of Copy Rites and assign it to me, I can license it for use in movies and TV shows and make tons of money off of it without having to pay you a dime (since I already paid for the assignment). Then, after 35 years, you (or your estate, if you have died) can get the copyright back by written notice to me. The whole process is a bit more nuanced than I have described but this is basically how assignments work. As you can see, you may give up a lot by assigning a copyright that becomes popular after the date of assignment. It is not something that should be entered into lightly.
I hope you have enjoyed my primer on music copyright ownership: how it is made, who owns it, what they own, and how it is used.