Chapter 5 THE TWO COPYRIGHTS IN EVERY SONG
You write a set of lyrics or have a melody or some chords. You combine the two and record it so that it is tangible. You now have two copyrights-the musical composition and the sound recording. If you remember anything from this book, please remember there are two copyrights in every recorded song. They are: a © which stands for "Copyright" and a (p), which stands for "Phonograph" or "Phonorecord." Phonograph comes from the old machines that used to play vinyl records. If you look at liner notes to an album you may see either used or "all rights reserved." Sound Recordings v. Musical Composition Section 101 of the Copyright Act defines sound recordings as "works that result from the fixation of a series of musical, spoken, or other sounds, but not including the sounds accompanying a motion picture or other audiovisual work." Common examples include recordings of music, drama, or lectures. A sound recording, however, is not the same as a phonorecord. Sound recordings are embedded in and listened to via a "phonorecord." Phonoreccords are defined in Section 101 as the "material objects in which sounds, other than those accompanying a motion picture or other audiovisual work, are fixed by any method now known or later developed, and from which the sounds can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. The term "phonorecords" includes the material object in which the sounds are first fixed." Thus, a phonorecord is the physical object in which works of authorship are embodied. The word includes cassette tapes, CDs and vinyl discs as well as other formats such as music downloads, and streaming.
21 So, a sound recording is the song's sound fixed on a phonorecord. Sound recordings, in theory, are derivative works because there is no sound recording without a musical composition. While it is hard to think that a sound recording has "originality," it is comprised of many different things. First, a performance can certainly be original. Second, the author, or co-author of a sound recording can be producer. A producer helps the artist record the song and enhance the songs and album as a whole. Congress acknowledged the contribution of "capturing and electronically processing the sounds." Thus, the plain text of the Copyright Act makes clear that reproduction occurs when a copyrighted work is fixed in a new material object. All of the above is some nice legalese, so let's break it down Rock n Roll Law style. The musical composition
22 is the melody and lyrics (assuming the song has them), as visually exemplified in sheet music.
23 This is often what we know as the "song," and they people who write music composition are known as songwriters. I use the diagram below to illustrate the musical composition throughout this book. The sound or master recording
24 is how the music composition sounds to the ear. So when you hear a song, you are hearing both copyrights blended in one work. I use the illustration below to denote the sound recording. It is how a particular musical composition sounds to the ear-the above illustration coming from speakers. So, to use the example from The Stones' song "The Last Time," Mick and Keith wrote the music, notes, melody and words, along with the lyrics. Let's put aside they ripped off The Staple Singers for now! The actual recorded version of that song, i.e., how it sounds on the album
Out of Our Heads, is another copyright. Thus, one song can, and often does, have many different sound recordings such as a live version, demo, acoustic version, dance mix, alternate takes, and so forth. It is vital you understand this because of all music copyright law, and, thus, music law and business flows from the two copyrights in every song. Sheet Music I want to touch on sheet music, though not spend a lot of time on it because its importance in the music industry has waned over the years and in this digital age. The publisher or songwriter receives royalties when sheet music of their work is reproduced. Again, it is a copyrighted work. For a single song, the standard royalty is 20% of the marked retail price. For a folio, a collection of songs, it is 10-12.5% of the retail price. For a personality folio, one with the picture of the artist or songs from a particular album (with album's image), add another 5% to the retail price. If a folio contains many different songwriters, then the royalties are pro-rated. For downloadable sheet music, a publisher can get up to half of the revenue, which is higher than physical sheet music. For folios of arrangements of choral or band, the rate is 10% of retail, and if it is only reprinting lyrics, then the rate is 5-7.5% of retail. The "Two Worlds of Music" and What a Record Label Does Another thing you need to know is that if an artist is on a record label, the label generally owns the sound recordings, while if the artist is on their own, the artist will own it. Sound recordings are also more commonly known as "masters" or "master recordings." In the label world, this is the case unless the artist has a lot of success and can negotiate otherwise. In the Indie world, if artists are not aware to this copyright, it is hard to take advantage of your ownership of your own masters. In the label world, copyright in the music and lyrics will usually be owned by the artist or their music publishing company, and copyright in the sound recording will usually be owned by the artist's record label. Use of that track, including any adaptation of the track or any uploading or sharing over the Internet, will require the permission of these copyright owners, either directly or through their representatives. We will flesh this out later. I am fairly certain that most of you have at least a general understanding of what a record label is and what they do. An artist will enter into a contract with the label to release so many albums or singles during a certain period of time. The terms can vary, but it is usually a one-sided contract because the artist initially has no leverage. The label will produce, manufacture, distribute, market and develop an artist. In the 1960s, groups like The Beatles had to release two albums and two singles per year. The label will tell the artist when, and if, their albums are released, and control what songs are released as singles. Often, a record label owns its own publishing company as well. All three major labels have their own huge publishing companies. So, a label coordinates the production, manufacture, distribution, marketing, promotion and enforcement of copyright for sound recordings and music videos; conducts talent scouting and development of new artists ("artists and repertoire" or "A&R"); and maintains contracts with recording artists and their managers. One of the major developments in the music world over the last two decades is that indie artists can now perform all the functions that labels used to provide, and that the labels themselves do not even perform all the above tasks anymore. For example, major labels do not do much in the way of production because they will usually contract with someone for that. I do not think they have a lot of A&R people looking for new talent or are even interested in developing an artist, unless they have millions of followers on social media. So, the good news is that everyone can now make and realize music; that also the bad news because there' s a ton of new music released-a staggering 60,000 new songs appear on Spotify every day. In the current music universe, there are two general worlds-the major record labels (Sony, Warner, and Universal) and their subsidiaries, and independent artists on their own. Now, there's certainly a continuum from major indie labels to small or boutique labels with one artist.
Practice Tip: If a musician creates and makes their own music, they are essentially their own record label. As such, they are responsible for everything in the definition of a record label above. The Taylor Swift Example of Two Copyrights in Every Song In the major label world there is an almost baked-in conflict of interest where the record label often owns the masters (the sound recording rights), while the songwriter or their publisher owns the musical composition (the publishing). Now, certainly the label can own both, but not always. Certainly, one or the other may own a piece of either, but if both entities are not on the same page, this can create obstacles and opportunities. In the case of the indie or DIY world, the artist likely will own both copyrights, but it helps they know about them! This sometimes makes the news or illustrates itself in bazaar examples. I have two stories I have been telling in my class for years. Taylor Swift has beef with Scooter Braun for reasons I will not go into. Braun manages Kanye West, among others. Swift's first six albums were recorded, and the masters/sound recordings owned by her label Big Machine. A few years ago, Braun bought those masters, thus infuriating Swift, and her legion of fans known as "Swifties." Apparently, she was not aware this was happening, and was not offered a chance...
