What do Clive Palmer, Puff Daddy and Ed Sheeran have in common? Why, we’re so glad you asked.
Our recent webinar ‘Sampling, Parodies & Quotation with Arts Law’ was full of useful information about music copyright.
In this article we unpack nine copyright fundamentals that music creators should know. We also delve into the laws regarding getting permission to use others’ work, specifically with sampling, parodies and satire.
1. Write original music? You're a copyright owner!
Let’s touch on the basics. If you make original music, you are a (either partially or full) copyright owner.
Arts Law explain: “Copyright is a bundle of exclusive rights that you have in your work that allows you to control how it’s used by other people, and how you use it yourself.”
Copyright automatically protects three components of music: lyrics, music and the sound recording (master). Those three components can have different copyright owners, and in the eyes of the law are treated separately.
Note – copyright protects the original form or way an idea is expressed, not the idea or information itself.
2. Key rights for copyright owners
You are entitled to a bundle of exclusive rights as a copyright owner.
For copyright in a musical work or lyrics, these include:
- Right to reproduction (to create a recording eg on vinyl, CD or cassette, to print sheet music)
- Right to first publication (making it available to the public for the first time)
- Right to communicate to the public (eg digital communication – uploading to a streaming service or social media, or hold music)
- Right to public performance (eg play in a pub)
- Right to adaptation (for lyrics this may be translating to another form and for musical works this may be arranging or transcribing). For music and lyrics, the general rule (with a few exceptions) is that copyright lasts for the life of the creator, plus 70 years and for sound recordings, 70 years from first publication. Once copyright expires, the work is said to be in the ‘public domain’ – that is, anyone can use it for any purpose.
3. Collaborating? Get an agreement in writing
If you’ve been in a co-write or studio production session, you’ll know that the lines between songwriter/ musician/ producer can get blurred. In the same way, without a written agreement, copyright ownership can also get messy.
Arts Law explain: “When you’re collaborating with someone, copyright of the music and lyrics as a starting point belongs to the author. But if there are multiple people who are making significant original contributions to a work, often the default position is that you will co-own those works as collaborators.”
To avoid issues down the line, Arts Law suggest sitting down with your collaborators and agree on copyright splits. “Put something down in writing that sets out how you’re going to split copyright in that work – whether it’s just the lyrics or whether it’s the music.”
Check out our article about songwriting splits.
4. Whose hard drive is it anyway?!
Copyright for the sound recording (master) is different to copyright for music and lyrics. Who owns the copyright on the master recording? The test here is different. If you pay for studio time (‘commission’ a recording) generally you as commissioner will own the copyright.
But that’s not the case if you’re recording at a friend’s studio or recording on a laptop at home (‘uncommissioned’ recordings). Generally, the owner of that recording is whoever owns the recording medium (hard drive or laptop), plus live performers.
This means that in a lot of cases, the master’s copyright can be shared with the session musicians who contributed to the sound recording in the studio. Again, it’s important to lay everything out in an agreement so that it’s clear to everyone.
Getting written agreements/ contracts is an important part of professionalising your music practice.
Arts Law has a bunch of agreement templates for you to explore and to put in place for your own work.
5. So you want to use another part of a song in your own?
What if you’re using someone else’s work in your song? This includes sampling the master track, as well as using music or lyrics.
First you’ll have to check three points:
- Is it still under copyright? (Ie not yet in the ‘public domain’? See point 2).
- Are you using a ‘substantial part’ of the original track? (a recognisable, distinctive, core part of the song?
Arts Law say, “it’s not about how much you’ve taken, it’s about the quality of what you’ve taken, rather than the quantity”. This can be an ambiguous grey area. “You have to think about the level of risk that you’re willing to take on, when you’re making those decisions”.
- Does a ‘fair dealing’ defence apply? (are you using the original work in a review, for criticism, or for parody or satire?) – More on this below.
6. P. Diddy vs The Police
One example of a high-profile copyright case is P Diddy. His 1997 track ‘I’ll Be Missing You’ directly samples The Police’s ‘Every Breath You Take’.