by Leonard Bendel (Lenny_B)
The Music Industry is based on the ownership and exploitation of copyrights. In the first of this occasional series, we’ll have a look at the copyrights that are most likely to affect you.
Copyright literally means what it says – it is the right to copy a piece of creative work, whether a musical or literary work, or a recording, film or broadcast. The creator or author of a copyright work has exclusive rights over that work, which he can license or permit others to deal with, such as to copy, reproduce or publicly perform that work. For copyright in a work to exist, it has to be original and must be “recorded, in writing or otherwise”. You can create a song, but until it is notated, transcribed or recorded, there is no copyright protection for it. You don’t have to post yourself by recorded delivery a copy of a tape for it to be protected (a common fallacy) – this just helps in the event of a dispute to prove that you had created that work by a certain date.
A very important point to be aware of is the different copyrights that can exist in a piece of music and to distinguish between “the song” and “the recording”.
In a composition or song there is a copyright in the “musical work” – that is the copyright in the musical element, and a separate copyright in the lyrics as a “literary work”. These are collectively generally known as the “Publishing rights”, as it is these rights that are assigned or licensed to music publishers (more on that next time). The copyrights in music and lyrics are treated as two distinct and separate rights, which can be owned and controlled by two different people. If you and a songwriting partner together write the music AND lyrics in a song (such as Lennon & McCartney) then you are held to be joint authors of both music and lyrics and cannot do anything with the song without permission of the other writer. On the other hand, if you write the music and your partner writes the lyrics (such as Elton John and Bernie Taupin do), then unless you agree to the contrary, you will own the copyright in the music and your partner will own the literary copyright and you can both deal with your copyrights as you wish.
It is very much the norm that in a song the music and lyrics are either weighted equally, with each deemed to be worthy of 50%, or else the melody, lyrics and music are split three ways. These are conventions rather than legal principles though. Songwriting income is mostly generated from record sales and from public performances of the song (from radio and TV airplay). The copyright in a song lasts for a period of seventy years following the year of the death of the author (or last-surviving joint author) – these copyrights are assets that can be inherited by your children and grandchildren. This can be a very valuable income stream, especially when you consider that currently in the UK, the songwriters on an album are entitled to share between them the Mechanical Royalty - this a royalty of 8.5% of the dealer (or wholesale) price of the album. Recording artists generally only get between 15-22% to share between all band members!
These musical and literary copyrights are different from the copyright in a “Sound Recording” - each and every recording of that song will have a separate copyright which is owned by “the Producer” – this is the one who “makes arrangements” for the recording to be made. This is often interpreted as the one who pays for the recording, and will often be the record company. As an artist or performer you will collect royalties from sales and performances of your recording. The copyright in a sound recording lasts for a period of fifty years following the year of release – it then falls into the “public domain” – which means that anyone can then deal with that recording without paying royalties. There is currently a high-profile campaign to extend this to a period of seventy years (as in the US and other countries) or even longer – this is a campaign to pay attention to!
The best way to think of the difference between the copyright in a song and the copyright in a sound recording is that Lennon & McCartney’s publishers will earn royalties every time someone records “Yesterday” (and there are several thousand different versions!), but the remaining Beatles and their record company will only earn money from the Beatles’ version, not from any other.
Many bands choose to share the publishing equally (such as the Red Hot Chilli Peppers or Radiohead), regardless of each member’s contribution to the writing of it. Bands that do this often claim that this helps band spirit, but in cases this has led to resentment from the main songwriter that the others aren’t pulling their weight and are benefiting from his talent! Bands that don’t have this policy will have to agree at the completion of each and every song whom contributed how much and what their share should be. There have been many legal cases arguing over the share of copyright in a song – for example, does contributing a bass line to a song warrant a share of the ownership of a song? A few years ago the members and former members of Spandau Ballet were involved in a large lawsuit on this area. Unfortunately, the answer is always dependant on the circumstances of each band and each song – how integral is the bass line? If someone else covered the song in a different style (such as for a big-band), how important would your bass line be? Is it part of the composition or part of the performance?
As a session player, you're more than likely to be asked in return for your session fee to agree that any copyright in your bass line will belong to the principle songwriter, and that you will not make any claim in the future for a share. This is par for the course, but unless you’re doing the session for free or there are exceptional circumstances, you’re unlikely to be come out with a share of the copyright.
As a songwriter you should contact the PRS (Performing Rights Society), MCPS (Mechanical Copyrights Protection Society) and BACS (British Academy of Composers and Songwriters) and as a performer, you should contact PPL (Phonographic Performance Ltd.) for more information on protecting your rights and collecting income due to you.
