Music and Copyright

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Dealing with copyrights in music always presents interesting conundrums. First, music usually has two separate copyrights, one for the musical score ©, and one for the musical sound recording ℗. Thus, like real estate (receiving mineral rights and above-the-land real property rights), when one is dealing with music, he or she must take into account both types of copyrights. A common challenge posed to libraries manifests when an acquisition of a musical item occurs, and the library or the educational institution it serves wants to post the music somewhere, perhaps in a special collections display. The librarian may have ensured during the acquisition that the donor signed over his or her rights to the musical score. However, if the rights holders to the sound recording (usually the recording studio) do not sign over their rights to the donee (the library), then the library does not have permission from the recording studio to place the item in the special collection. Of course, the librarian might be able to rely on fair use, or another statutory exception, or obtain permission form the recording studio. That said, the pertinent point is one needs to be cognizant of the fact music usually presents two separate copyrights: The creator(s) of the musical score, and the creator(s) of the sound recording. To further complicate matters, each of these separate copyrights may be further owned by multiple parties. Most musical bands create a contract at the formation of the band (after it reaches a certain notion of notoriety, starts making real money) that details how much percentage each band member owns of the band (e.g., 25%, 25%, 25%, 25%). This agreement also depicts how much copyright each band member owns. Also, the recording studio’s copyright may be broken into various percentages as well. Thus, to utilize a copyrighted song written by such a band, one would have to obtain numerous copyrights to ensure proper use, or rely on a statutory exception. Of course, many performing rights societies now make this easy by allowing one to pay a license to ensure (as much as possible) that all rights holders receive their royalty. Some of these rights societies consist of the American Society of Composers, Authors, and Publishers (ASCAP), Broadcast Music International (BMI), and the Society of European Stage Authors and Composers (SESAC). Fair use is also always an option as well.

Other interesting notes about music and copyright include:

  1. Sound recordings were not given federal copyright protection in the United States until February 15, 1972. Thus, before that date, music was only subject to one federal copyright. However, most states issued some form of copyright protection for sound recordings pre February 15, 1972, and this copyright protection was usually issued in perpetuity, so it is much more restrictive than federal law. Thus, when a question arises about the use of a sound recording, it is important to attempt to decipher the date of the recording, and then whether it has state or federal copyright protection. XM Radio, for example, is currently being sued for allegedly never paying pre-1972 sound recording royalties to rights holders (they apparently did pay the royalties for the musical composition copyright).
  2. An amendment to the current United States Copyright Act in 1995 added a right to the exclusive “bundle of copyrights” given to creators of works. This right is known as the right to perform sound recordings by means of digital audio transmission. This right normally is relevant to restaurants or other public venues that perform sound recordings via digital audio transmission, and these entities also may exercise some statutory exceptions based on their venue configurations and technology used to make such a performance. However, for libraries, this right rears its head when the library houses certain sound recordings and wants to perform them publicly or via a virtual classroom. For example, interestingly, the TEACH Act 110(2) mandates that one may perform nondramatic musical works in distance education, but dramatic works may only be performed in reasonable and limited portions via distance education. Of course, both of these performances could be performed in full in face-to-face classes via section 110(1), which gives permission to “perform music.” Thus, the question is often broached, what is “reasonable and limited portions” for virtual educational use? Yet, this question has never been answered clearly by Congress or by the courts. So, fair use is probably the best bet when dealing with such an issue.
  3. Another interesting caveat when dealing with music is the statutory distinction between a sound recording and musical score for purposes of library preservation and Interlibrary Loan. For example, section 108, which governs library copying of copyrighted works for preservation, ILL, and personal study, only allows libraries to make copies of the musical scores for preservation and replacement, yet the rules allow for more liberal use when a library copies a sound recording with no accompanying music. For example, a library could copy printed sheet music and store it for preservation, but it could not copy it and disseminate it via ILL, based on section 108. However, keep in mind the library probably could copy the same sheet music and distribute it via ILL based on section 107 (fair use). In another example, a library could copy a sound recording of a presidential speech and disseminate it via ILL based on section 108 because the presidential speech does not consist of a musical composition.

These are just a few examples of the fun mental labyrinths presented when copyright and the use of music collide. The take home points are to remember music usually has two separate copyrights with possibly multiple copyrights holders (although performance rights societies can sometimes simplify this matter), regardless of when the musical composition was created; look at state law pre February 15, 1972; an exclusive copyright for music includes the right to perform sound recordings by means of digital audio transmission; and sound recordings and musical compositions are sometimes dealt with differently under section 108, which dictates library preservation, ILL, and personal study use of copyrighted works.