A brief “guideline” to copyrighting your music in the USA.
Music always existed, whether it was a complicated Opera piece or simple whistling during work, people always had an ear for catchy tunes. It’s not a surprise that our current generation, and the generation of the 20th and the end of 19th centuries are so obsessed with music – it brings a special ring to life, it makes it brighter and lively. But when did music start to exist legally? And when did music get its own rights in the United States? It’s a complicated question, but let’s try to find out.
It all started in the 1600’s, during the religious bigotry, when physical music became needed and appreciated. Churches started selling psalms and religious sheet music, and started making so much money that other people decided to follow the example. That’s when the core idea was born, though of course, public music existed before too. Just not marketed and sold, only performed.
So when people caught on the idea of selling physical music, they started to work harder to promote their own songs. This all rapidly developed during the 19th century, with Tin Pan Alley coming to life, and minstrelsy, and vaudeville. Public performance became the main source of income for musicians, because of which music started to expeditiously grow.
But one thing was necessary, to create the idea of ownership of the song. That’s when the United States adopted the idea of copyright. Copyright means the exclusive rights granted by the law of the country (in this case the United States) to the owners of creative works. It also includes the protection of these works. But what are these exclusive rights? Section 106 of the current copyright law explains the exclusive rights of the copyright owner, which are:
1. The right to reproduce in copies and phonorecords
2. To prepare derivative works based on the copyright work
3. To distribute the work in copies and phonorecords
4. To perform the work publicly
5. To display the work publicly
6. To give out licenses to perform
These rights are exclusive to the copyright owner only. The ownership of copyright can be transferred easily, and with transferring the copyright all of the exclusive rights are also transferred. Obviously these exclusive rights did not exist from the very beginning of Copyright, they slowly developed with the need of the public.
What is a copy of a phonorecord? Copy is a material object (but not a phonorecord) in which a work may be fixed. To be fixed means to be saved in a tangible manner. An example of a copy is sheet music. A phonorecord on the other hand, is a material object in which sounds often accompanying an audiovisual work are fixed in a tangible manner. An example of a phonorecord is a CD, Vinyl, Cassette, etc.
How to obtain a copyright? Right now it’s easy, the second you fix a work in a tangible manned – it’s copyrighted. Meaning if you write it down on a piece of paper, it’s all yours. But before it needed to be registered with the Copyright office. It cost money, time, and sometimes people couldn’t afford to copyright all of their songs – because of which they ended up going into the public domain.
But there are some elements a work must have to be copyrightable. Under the federal statute, these elements must be fulfilled to have a copyrightable work:
1. It has to be an original work of authorship
2. It needs to be fixed in a tangible manner
3. It needs to contain a certain amount of creativity
Can a copyright have more than one owner? Yes. If a group of people wrote together a song, they would all have the copyright and the exclusive rights of the copyright. Musical bands usually have mutual copyrights, meaning once they write a song together, they all own it together.
How long does a copyright survive? In the current time period, a copyright exists for “life +70 years”. So after death, you still own the copyright for 70 years, meaning you family receives all of your royalties for the songs. But it was not like that before. It slowly and gradually developed. Before life+70 it was life+50, and before that it was 28 years plus 28 years of renewal. What does this mean? It means that you owned your work for 28 years after copyrighting it, and then if you decided to renew your copyright you got 28 more years. Before this, it was even worse, it was 14 and 14 of renewal. How did it develop like this? Because the music industry realized that a work should belong to the rightful owner for as long as fairly possible. After the copyright duration runs out, the songs is moved to the public domain, meaning no one needs any licenses for using the songs as they wish.
To have a federal copyright means to have your work protected from infringement. When it comes to court cases about copyright infringement, it’s always better to have a copyright registered outside of just a fixation. Meaning, it’s always better to have it registered in a copyright office. Because in court cases, it’s not easy to
prove who wrote down what first. So if you register your copyright, you’re safer.
But copyright can’t protect everything. Outside the borders of copyright are the titles of songs, books, and other works. Also names of businesses, companies, performing artists, people, pseudonyms, series, products, expressions, mottos, slogans, and anything that is not fixed. Also, anything outside the exclusive rights of the copyright owner is not protected. But before the music industry achieved these rights, they had to go through every little detail and experience.
When public performances became a huge deal, every performer started to make money of their own works. But not every musician was honorable, some performed other musicians’ works and made money off of it themselves. That’s when ASCAP came into play. ASCAP is the American Society of Composers, Artists, and Publishers which was founded in 1914. The need for ASCAP sprung so musicians could have the power to allow people sing their songs and to receive money for allowing public performance of their works. ASCAP took a while to become a stable corporation, through struggles and mistakes, and got becoming the leaders in the music business of that time period.
First thing that ASCAP made sure to create was the idea of licensing. There are all kinds of different licenses, and they represent a very noble idea. People pay the owners of the works for different reasons (such as public performance) to be able to have the right to use that work in some way.
One of the main licenses are Mechanical Licenses. Mechanical Licensing became necessary after different types of mechanisms and technologies were introduced, such as music boxes, player pianos, radio, streaming, etc. So musicians had to make sure that their rights were protected, and their works would not be performed without their permission. Mechanical licensing contains the idea of authorization from the author of the work, to publicly perform their works. After years and years of working on the idea of mechanical licensing, they finally got to the core of it. But while working on this idea, other ideas were also introduced.
One of those ideas was compulsory licensing. The complex idea of compulsory license was introduced by Germans in 1908 at a Berne Convention. They proposed this idea together with their own version of Mechanical Licensing, to make the works more stable and safe from infringement. A compulsory license is when a government allows the use of somebody else’s patented work without the owner’s approval, by paying a reasonable fee. To develop it more, it means that if a song is released in the United States, anyone can record and attach their own version of that song to their albums, as long as it’s for private use and not public performance. Also, it entails that if the owner allows one store to distribute their songs, everyone has the right to distribute them, to avoid the monopoly of music businesses.
These license fees are paid to PRO’s of the country, in this case either BMI or ASCAP (in the United States). The job of ASCAP and BMI is to pay their creative members the money they deserve from these licenses.
The money they receive is called royalties. These royalties are created by negotiating between the PRO’s and customers, where they find the perfect mean between what they both want. Part of these royalties goes to the cost of management of the PRO and the rest is distributed to the publishers and writes. Publishers then take their share of the agreement, and pay the rest to the artists. These royalties vary in different types of mechanical devices. TV and Radio have different royalties, Live performances and films have different ones, and they are all paid honorably to the authors of the works.
It’s not easy to get the hang of the Copyright Law, but these small essential ideas will help with understanding the basis of it. History of music publishing and music go hand in hand with each other, so it’s important to understand every little detail to be able to comprehend the full idea of the United States Copyright Law. But in the end, everything is slowly developing, and by learning the mistakes of history we will be able to create a brighter future, for a better music industry to exist for our future generations.