This month we tackle a topic that is very confusing for many people, including myself. I hope I can do it justice. Please note that nothing in this article should be considered to be legal advice. If you have questions, consult your attorney.
So you've written a song that your hope will become a hit. How do you protect yourself from it being used without your permission, or, maybe more importantly, without you being compensated for your hard work? The answer is the copyright, the exclusive legal right, given to an originator or an assignee by a government entity for a specified period of time to reproduce, publish, distribute, or sell a literary, artistic, or musical work, or to authorize others to do the same. Although you frequently see copyright used as a verb, this is technically incorrect since it literally means the “right to copy.” Never say “I copyrighted my song,” or even worse, “my song is copywritten.” The correct way is to say “I obtained...” or “I secured a copyright for my song.”
A copyright is established for a song as soon as it is captured in a fixed format, such as sheet music or a phonorecord. A phonorecord is a legal term for the physical medium on which a recording is stored. Examples of phonorecords include vinyl phonograph records, reel-to-reel tapes, 4- and 8-track tapes, cassettes, compact discs, and digital audio files, such as MP3s. However, registering the copyright provides the owner with additional rights, such as the ability to sue for copyright infringements—using a work that has copyright protection without permission. A copyright can be registered by completing the proper form, submitting a copy of the song, and the proper fee to the Copyright Office. You can submit several songs on the same form for a single fee.
The copyright holder is usually the author or originator of a work that is protected by copyright. However, if a person works under a work for hire arrangement, then his or her employer owns the copyright. If you are signed to a record label, the label usually owns the sound recording copyright. If a copyright is sold, traded, or assigned to someone else, then the new owner of the copyright becomes the copyright holder.
If you record a song written by someone else, then you will need to obtain the right to use the song before releasing it. This is done by obtaining a mechanical license. This license grants you the right (called a mechanical right) to reproduce and distribute copyrighted musical compositions (cover songs) on recorded media, which was originally called “mechanically reproduced music” and hence the name. In the US, a mechanical license for music is a compulsory license, meaning it does not require permission from the copyright holder in order to obtain a license. This principle is an exception to most laws governing intellectual property wherein the owner of intellectual property has the exclusive right to license or decline to license its works. The user simply has to request the license and pay the statutory rate to obtain a license. The statutory rate is set by Congress and changes from time to time, but currently is set at 9.1 cents per copy for each song. The licensing organization then pays royalties to the copyright holder. These royalties are called, you guessed it, mechanical royalties.
A company that administers copyrights and licensing of music to performers, record companies, or anyone wanting to record someone's music is called a music publisher (publishing company or simply publisher). They also collect royalties on behalf of the songwriter. Many songwriters enter into agreements with publishers to administer the copyright on their songs. The songwriter is still the owner of the song, unless he or she sells the rights to a third party, such as a music publisher. In this case, the music publisher owns the song and the rights that go with it. But whether the music publishing company owns the song or administers the rights to the song on behalf of the songwriter, the publisher issues the mechanical license.
Just like music publishers act on behalf of songwriters, there are agencies that act on the behalf of songwriters and publishers. Typically you use companies like the Harry Fox Agency, Loudr, or Easy Song Licensing to obtain mechanical licenses.
We will continue this discussion next month with Part 2.
• Prior to “The Monster Mash” hitting the charts in 1962, Bobby “Boris” Pickett was working as an actor, making appearances on the TV shows “Bonanza, ”The Beverly Hillbillies,” and “Petticoat Junction.” His tour bus once boke down just outside of the town of Frankenstein, Missouri.
• In 1964, an acoustics expert from an Australian university measured the noise level during a Beatles' concert at 112 decibels. That's louder than a Boeing 707 jet flying at 2,000 feet.
• The song “Hound Dog” was originally recorded by Willie Mae “Big Mama” Thornton, which was released in 1953. It eventually sold more than 500,000 copies. In 1956, Elvis Presley recorded the song requiring 31 takes.
• The original members of Gladys Knight's group the Pips, who got their name from her cousin James “Pip” Patten, were Gladys Knight, brother Merald “Bubba” Knight, sister Brenda Knight, and cousins William and Eleanor Guest.