A piece of recorded music is covered by two copyrights. The copyright in the composition protects the music and lyrics, if any, and is usually owned by the songwriter. The producer or record company owns a separate copyright in the sound recording, which protects the audio engineering and production of the recording. These copyrights provide their owners with the exclusive right to make copies of the music and distribute it to others, perform the music and create derivative works.
A producer samples by lifting a few notes from a pre-existing sound recording and incorporating those notes into his new recording. Sampling without permission infringes the sound recording copyright and may also infringe the copyright in the composition. A license is required because sampling violates the copyright holder’s exclusive rights to make copies of her work and distribute it to others. If a large amount of music is sampled from the prior recording, the new song could also be considered a derivative work. License rates are not governed by statute and depend on factors, such as the amount of the original song sampled and the popularity of the song and artist.
Distributing music to others using internet file-sharing services infringes both sound recording and musical composition copyrights. Whether the file-sharer gets any direct or indirect commercial gain from these activities is irrelevant. If the copyright holders bring infringement lawsuits, they may be entitled to thousands of dollars in damages and fees. Federal law also imposes criminal penalties for those found guilty of unauthorized reproduction and distribution of sound recordings. Prolific file-sharers may be found guilty of a felony and sentenced to a maximum of five years in prison and $250,000 in fines.
Musical composition copyright holders also have the exclusive right to perform their songs in public, or license others to do so. Performance rights societies provide blanket licenses to radio stations, nightclubs, retail stores and others to broadcast and present performances of the music of all artists who have registered as members. The three societies operating in the U.S. are the American Society of Composers, Authors and Publishers (ASCAP), Broadcast Music, Inc. (BMI) and the Society of European Stage Authors and Composers (SESAC). These societies collect all the royalties from entities that play music and distribute those royalties to their member artists.
Read More: Music Performance Copyright Laws
U.S. copyright law provides that after a musician has released a song commercially, other artists may create their own cover version of the song and record it. The cover artist does not need to obtain the original musician’s permission, but must pay the original musician a minimum statutory rate for every copy distributed. These licenses are compulsory because the original musician cannot refuse to allow cover versions of his song, provided the cover artist does not change the basic melody of the original song.
Jennifer Mueller has a J.D. from the University of Indiana, Maurer School of Law. She has been sharing her legal knowledge on the internet since 2009. Mueller has been published in the Indiana Law Journal, and her writing appears on legal websites such as LegalZoom.