Composing and Copyright

Harvey Rachlin • CommentaryOctober 2022 • October 13, 2022

For many musicians and singers, music is the pulse of life. Their hearts swell to the sound of lush melodies, their bodies sway to intoxicating rhythms, their spirits lift to the soothing blend of sweet harmonies. As creative sorts, their passion for music sometimes goes beyond performing music–they want to create it. Who wouldn’t dream of being immortalized by creating a classic or worldwide hit that lives on for future generations?  That’s what writing music can do: make dreamers out of the most modest of music hopefuls.

Whether your dreams are small or big, your music serious or pop, if you write music and are new to the craft, you might have some questions pertaining to the legal aspects of your work. The desire to protect one’s creative work and not get ripped off are universal and long-time concerns for composers. This will be the first of an occasional series of articles to address some legal aspects related to the creation, protection, and exploitation of musical compositions.

Let’s start off by asking what is the legal basis for the protection of musical compositions?  And the answer is the U.S. copyright law. If you invent something, you’ll look to the patent law. If you want to protect the name of a band, you’ll look to the trademark law. If you write musical compositions, the copyright law is your legal guardian.

The current U.S. copyright law is called the Copyright Act of 1976. Section 102 of the U.S. copyright law protects “original works of authorship fixed in any tangible medium of expression, now known or later developed.”  This means you need to write down or record your work to establish a federal copyright. Create a melody on the spot without recording it or having it transcribed in any tangible medium and it’s not. 

Under previous copyright law, one had to register the work with the U.S. Copyright Office to copyright an unpublished composition. But you do not have to register your composition today with the U.S. Copyright Office to establish a copyright for it (although registration has certain benefits). Copyright is established immediately and automatically upon fixation. Write a lead sheet or make a demo of your tune, and bingo, you’ve copyrighted it.

The categories of the law of most relevance to composers are musical works and sound recordings. Though similar, a musical work and a sound recording are separate under the copyright law. A musical work refers to the melody of a composition and any accompanying lyrics. A sound recording is the recorded performance of a musical work and includes the singing, instruments, and production; in other words, it’s what you hear (as opposed to the underlying song). So, if many artists record your song, you are the copyright owner of the song, but each of the labels or artists who have recorded your song are the owners of their sound recording of your song. But don’t worry, they must pay you royalties for sales of their recordings of your song.  

Okay, so you made a manuscript copy of your song and it is now copyrighted.  What does that mean? Once you fix your composition in “a tangible medium of expression” (back to copyright lingo again!) you are the owner of that composition. The author is always the first owner of his or her composition (except for a work made for hire like where a movie studio hires a composer to score a movie) although you might want to transfer ownership to a bona fide music publisher who could exploit your work, get it used in many ways and possibly make you rich and famous. If you don’t know much about the music business or don’t have many music business connections, then a publisher could be the right party to help make your composition successful. 

The owner of a musical composition has certain exclusive rights in that composition. According to Section 106 of the U.S. copyright law, the owner of a copyrighted work has, with certain limitations, the exclusive right to reproduce, adapt, distribute, perform, and display the work, and in the case of sound recordings, to perform the work via audio digital transmissions (to authorize it for streaming), or to authorize others to do so.

The meaning of the exclusive rights may not be immediately clear, but it means you have (with certain limitations) the exclusive right to do or authorize many things such as to record and distribute it, broadcast, and stream it, play it at concerts, make a jingle or movie out of it, print and distribute sheet music of it, among others. In commercial practice, if anyone wants to use your work in any way, then they party need a license from you (or your publisher), and they pay a fee or royalty or both, to you if you’re the copyright owner, or to your publisher, if you transferred the rights to your composition. When a music publisher receives revenue for a song the publisher splits the revenue with the song’s writer in accordance with their agreement. In some instances, there are parties who represent rights owners for the licensing of works to ease the commercial burden of negotiating with music users (like the thousands of radio stations that play music) and monitoring their uses of your work.

In today’s modern world, there are many different sources of income for the writer and owner of musical compositions. How these compositions are exploited and licensed will determine how much money can be made from them. But as I tell my students, don’t get caught up in how much money you can make from your work. If you’re a composer, do what you like most, which is to write music. That’s the best way to make your dreams come true!

Harvey Rachlin is the author of 13 books including The Songwriter’s Handbook and The Encyclopedia of the Music Business. The latter title won the ASCAP-Deems Taylor Award for excellence in music journalism, was named Outstanding Music Reference Book of the Year by the American Library Association.

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