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Arts Law on music and copyright

Tip Published Tuesday 26 April 2016

Copyright is automatic. As soon as you create a new song or piece of music in a material form, you have copyright in it

Infringement occurs when a substantial part of an existing copyright work has been used without permission

If you think your copyright has been infringed seek legal advice from either Arts Law or a music or IP lawyer

World Intellectual Property Day takes place each year on April 26, and is the perfect time to reacquaint yourself with your rights as a music creator.

Number one rule? Copyright is free and automatic. That means as soon as you create a new song or piece of music, you have copyright in it.

It’s not all as straightforward as that though, and songwriters and composers should learn as much as they can about copyright to ensure they control how their music is used.

As a solicitor with the Arts Law Centre of Australia, Jennifer Arnup regularly provides legal advice on a range of areas of law including copyright, defamation, contracts, business structures and debt. She is passionate about educating artists about understanding and protecting their legal rights.

Jennifer answered a few questions for us on World IP Day to help you learn more about copyright as it relates to music creators.

Why is copyright so important?

Copyright rewards creativity by providing artists with legal protection and the ability to commercialise and profit from their creative work.

What are some common issues that arise in relation to copyright and music?

Some of the more common copyright issues for musicians include dealing with copyright ownership in collaborations, issues in publishing and recording contracts, selling and uploading work online, the use of samples in a new work and claims of copyright infringement.

What happens to a songwriter’s copyright when they sign a publishing deal?

When a songwriter enters a publishing deal they are providing the publisher with an assignment of copyright (i.e. completely handing over their rights in a song) for a certain period of time to allow the publisher to seek out paying opportunities for the use of those songs.

How can songwriters ensure they are not infringing on the copyright of others when creating music?

Infringement occurs when a “substantial part” of an existing copyright work has been used without permission. The process of determining infringement doesn’t necessarily involve a note for note comparison, but whether the substance of the original has been taken.

For example, the Men At Work song Down Under was held to have infringed copyright in Kookaburra Sits in the Old Gum Tree by incorporating a short two bar phrase in the hook of Down Under.

To avoid any infringement claims songwriters should be careful not to directly or closely copy any parts of an existing composition in your song.

What should songwriters do if they think their copyright is being infringed?

Seek legal advice from either Arts Law or a music or IP lawyer. Don’t vent your spleen online or make threats about infringement which can’t be substantiated.

The theme of World IP Day this year is Digital Creativity. How has digital changed the landscape for creators? What are the positive aspects of this and what are some of the challenges?

The digital landscape has presented musicians and composers with a raft of opportunities to take control of their music and directly reach audiences via YouTube, social media, digital streaming services and internet radio. Getting your music heard no longer depends on the elusive record deal.

However, along with the emergence of these new and innovative platforms for distribution comes an even greater need for artists to understand their legal rights to protect their work.

Further reading

Arts Law provides a number of useful resources for musicians on its site including its Music Contract Template Packs. If you have a legal query, they’re there to help. APRA AMCOS member and licencees can receive a discount on a number of sample agreements.

The Australian Copyright Council is also a valuable source of information and assistance, and members and licencees can receive a discount on the ACC Music and Copyright Guide.

If you’d like to delve deeper into copyright and music, a chapter on the topic from Shane Simpson and Jules Munro’s book Music Business is available online and members and licensees can buy the whole book at a discounted price.

Arts Law Case Study: Does incorporating samples in my music infringe copyright?

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