This document is offered as a primer for performing musicians regarding issues of copyright, performance fees and recording fees for the use of copyrighted music. Please note that I am not an attorney, and this is not legal advice. It is also not a complete discussion of copyright. It is offered as "one musician to another" information. I welcome anyone with legal training to offer corrections or clarifications to this document.
This document is based entirely on the copyright laws of the United States of America.
What is a Copyright?
The copyright to a piece of music establishes the ownership of the music. If I own the copyright to a piece of music, I collect all fees for the performance and recording of the piece. I may be the composer of the music, or perhaps a publishing company who has bought the rights to the music. Think of the copyright as a sort of deed to a piece of intellectual property.
If I am a performer who wishes to perform a piece of copyrighted music, the owner of the copyright will eventually end up with the money I pay. That money usually takes a detour through one of the agencies that are set up to efficiently process the collection and payment of royalties for the use of music.
What Music is Copyrighted?
The simplest rule to remember is that if it has been written since 1923, it is probably copyrighted. If it was written before 1923, it is probably not copyrighted. Note that there are exceptions to this rule. As with everything related to copyrights, this issue is confusing. The following website has a table that explains when a piece of music becomes public domain: http://www.unc.edu/~unclng/public-d.htm
A great deal of music is "public domain". This means that the music is owned by the public, and no fees are required to be paid for its performance and recording. A piece of music usually becomes public domain somewhere around 90 years after the death of the composer. For example, Bach's music is public domain -- you don't have to pay a fee to Bach's representatives to perform or record his music. However, you do have to pay a fee to the modern composer William Walton to perform or record his music.
When Do I Have to Pay?
If you are playing a piece of copyrighted music, fees are owed anytime you make a public performance, distribute a CD or cassette recording, or put MIDI, WAV, MP3, Real Audio or other files on a web page. Exactly what the fees are, who owes the fees and to whom the fees are paid differs depending on a variety of variables. The rest of this document attempts to sort those variables out.
Composition, Sheet Music, and Performance
The word "music" itself adds confusion to the conversation because it has three meanings. Music is the sounds we hear, the printed paper with the squiggles on it, and the composition (the notes themselves). I will use the words performance, sheet music and composition to distinguish between the meanings.
Adding further confusion to this issue, it occurs regularly that someone owns the copyright to the sheet music, another person owns the composition, and yet somebody else owns the performance.
For example, if I learn a copyrighted song from a music book, and then I record the song, I own the copyright to the recording (the performance), the composer own the copyright to the song (the composition), and the publishing company owns the copyright to the book with all the squiggly lines (the sheet music). All three of those are commonly called simply music.
Copyrighted Sheet Music/Public Domain Composition
Further complicating matters is that for some music, the composition is not copyrighted even though the sheet music is copyrighted. If a composition (piece of music) is in the public domain, and a publisher prepares an edition of the music, the publisher owns the copyright to the sheet music and any original work they added (such as fingerings), but the publisher does not own the copyright to the composition. What this means is that you may not photocopy this sheet music, but you do not have to pay a fee to the publisher to publicly perform or to record this composition.
As an example, the publisher of an edition of a work by Bach would own the copyright to the sheet music, but would not own to the copyright to the composition, because Bach's music is in the public domain. This is akin to a book of Shakespeare. You can not photocopy the book, but the publisher of the book has no copyright claim over the words of Shakespeare.
According to how the copyright laws work, you can not simply go out in public and play copyrighted music, even if you are not charging for your performance. It seems like you ought to be able to, but the law says you can't. To stay within the law, you must pay performance fees (or have permission of the copyright holder) for any public performance of copyrighted music.
The phrase "public performance" means pretty much that: a performance open to the public. It does not include performances such as playing for a group of friends at a party.
As a good general rule, any performance for which you are being paid requires that performance fees be paid. In theory, if you are a street musician, you owe performance fees to Paul McCartney if you play his music. Of course, nobody bothers with trying to enforce this level of violation.
Fortunately, the performer is almost never responsible for paying these fees. The "venue" is almost always responsible for paying the fees for public performance. The venue is the business or organization that is "hosting" the performance. Examples of venues are: a night club that features live music, a restaurant, a bowling alley, a theater, a classical guitar society, a university.
In the United States, the fees for public performance are paid to one of two organizations: ASCAP and BMI.
ASCAP and BMI greatly simplify the process of paying fees for the public performance of music. Composers sign up with one or the other of these agencies, and the agencies then collect the fees for public performance and distribute them to the composers. Since the money is funneled through one place, it is much easier for venues to pay, which also makes it more likely that the venues will pay.
A venue that regularly features music will likely buy a license from ASCAP and BMI that covers the venue for a long period of time. You sometimes will see stickers displayed from ASCAP or BMI in clubs.
ASCAP and BMI also function as an enforcement arm for the collection of performance fees. They can and do go after flagrant violations of copyright on behalf of their composers. Composers, in general, like ASCAP and BMI.
Between ASCAP and BMI, they cover essentially all published, copyrighted music.
Both ASCAP and BMI have excellent web sites:
These web sites explain clearly how each organization works, and the details of how the fees are collected. They also contain a wealth of information about music, publication dates, composers, and publishers. They are worth a visit.
It is perfectly legal to record any piece of music you wish to record, and you don't have to pay any fees at all for the recording. It's the distribution of that recording that will cost you. To use a piece of copyrighted music in a recording, you must pay the copyright owner 8.0 cents per recording distributed. If you use more than 5 minutes of the piece, you pay an additional 1.55 cents per minute. (Rates effective as of January 1, 2002)
For example, if you record a CD or cassette and use 10 copyrighted songs, all under 5 minutes, you would owe 80 cents per disc that you distribute. "Distribute" means put into the hands of another person, whether you are giving them away or selling them. You still owe for promotional copies.
This money is usually paid to the Harry Fox Agency. The Harry Fox Agency collects the fees for the use of copyrighted music in recordings. Dealing with Harry Fox is a straight forward matter. You fill out forms that specify what music you are using, how long the songs are, and then send them to Harry Fox. You will then receive documents that allow you to distribute the music, and tell you exactly how much you owe for each copy distributed.
Four times a year, you pay the amount owed per disc times the number of disks distributed. It is good for musicians, because we are on a pay as we go basis. It is good for composers because they get paid for their creativity and work.
The Harry Fox Agency has a web site at http://www.harryfox.com
It is also possible to negotiate directly with the owner of the copyright. If you are selling recordings in very large quantities, you may get a better deal by contacting the copyright owner directly.
Can I Record Music Without Permission?
You are allowed to record any piece of music that has already been recorded and distributed publicly. The composer can not stop you from recording and distributing copies of the music, as long as you pay the required license fees for the use of the recording. This is called a compulsory mechanical license. As long as the piece has been legally recorded and distributed by someone, you can record the music, obtain licenses from the Harry Fox Agency, and distribute the music.
If the music has not been recorded yet, you must have the specific permission of the composer.
Music on the Web
The Internet has thrown a curve ball at the entire world of copyrights. Music is particularly confusing. For example, if I have a recording of a piece of copyrighted music on my web site in MP3 format, and someone clicks on it and listens to it, is that a live performance or a distribution of a recording?
The rules are being hammered out as we go. The safest way to proceed as a performer is to not place performances of any copyrighted music on the net, unless you own the recording's copyright in all aspects. In other words, if you wrote the music, paid to record the music, performed on the recording, and thus own all the copyrights associated with the music, you can post as much as you want. (You probably should get it copyrighted first.) If you have recorded music that is copyrighted by someone else, you must be careful.
ASCAP and BMI are also involved in the web music game. If you wish, you can get a license that allows your website to have performances of copyrighted music on it. These licenses are expensive for the average musician. See the ASCAP and BMI web sites for details.
How Do I Copyright My Compositions?
The simplest way to copyright your music is to simply put the phrase Copyright YEAR, NAME on either the sheet music, or a recording of it. For example, the sheet music to the song Nortonomy says "Copyright 2000, Tim Berens." This declares that Tim Berens owns the copyright to this song, and it was first copyrighted in the year 2000.
While a copyright declaration does grant you the copyright to the music, it is a good idea to register the music with the U.S. Copyright office as well. The simplest way to register is to go to the US Copyright office website. Here you will be able to find the forms needed to copyright your music.
To copyright a recording, you fill out form SR. To copyright a composition, you fill out form PA.
I suggest you read every last instruction and follow them to the letter. The government loves rules, and will happily toss your application in the trash for any sort of violation of their rules.
The fee for copyrighting a song is $30.00. If you have a group of songs you wish to copyright, you can simply enclose them all in a binder (even a strong paper clip), give the group of songs a title (e.g. My Song Collection), and pay one fee for all the songs. This can save you quite a bit of money.
Copyright Related Links
How the Law Applies to the Internet
Internet technology is developing faster than the laws that govern it. New laws that apply to the Internet have been established either by legislation or the courts; copyright laws are among them. A common myth about the Internet is that anything posted online can be copied or downloaded. 1In truth, anything you see on the Internet has the same potential of being protected by copyright as anything you see in the library or bookstore. Under modern copyright law, the formalities of registration and copyright notice are no longer required. As long as material satisfies three elements, 2 copyright protects the work automatically. See What Copyright Protects.
Surfing the Net
It is helpful to understand how the copyright statute works to see clearly that the law applies to the Internet. The copyright statute is triggered by the unauthorized act of copying, publishing, performing (by digital means or otherwise), displaying in public, or revising (make derivatives) any copyright protected materials. See Artist’s Exclusive Rights. Your PC automatically makes copies when you surf the Internet in various ways. There is a good essay about this process by Ronald B. Standler. 3 He explains that copies are made at least four different ways when accessing the Internet. One way copies are made is by simply viewing a page on the Internet. This causes a copy of that page to be made and stored in the Random Access Memory (RAM) of your PC. Browsers also make copies so you can return to a site faster. This is technically sufficient to trigger the copyright statute. Does this mean that everyone who merely surfs the Internet is liable for copyright infringement and risks being sued? No, because of Implied Consent. Legal scholars argue that that anyone who posts content on the Internet expects people to visit their site. They know that visitors’ PCs will make copies in the process, and the website host grants visitors an implied license or permission to make those copies.4
Downloading on the Net
Downloading content from any web page is the equivalent to making a copy of the content, the same as making copies of a book in the library. It makes sense to presume that by doing so you will infringe the copyright of the author of that content. To comply with copyright law, you must receive permission from the copyright holder before you download any content. The exception to this is Fair Use. As in copying printed material such as books in the library, you will not need permission if you qualify for Fair Use. The complexity and uncertainty of a Fair Use analysis make it both risky and cumbersome to apply to small projects involving borrowing Internet materials. Some websites expressly give permission to download content. For the most part, if they tell you that you can download from their site, you can. That is, if they hold the copyright to the content you want to use.
Using Educational Materials from or on the Internet without Permission
In education, there are many Internet materials that could be used as teaching aids for a class or for an application in research. But it is not always possible or economically feasible to get or pay for permission. If you qualify for using materials without permission under the TEACH Act, then you also can use online materials in a face-to-face classroom setting. 5If you are concerned about using TEACH procedures—as are many universities—there is always Fair Use. Most of the Fair Use factors that apply to printed media also apply to the Internet, with the exception of posting materials on the Internet. This will, in most instances, disqualify you from Fair Use by itself.
You must get permission to post other people’s work on the World Wide Web. Posting anything on the World Wide Web is the same as publishing or distributing it worldwide, and publishing and distributing is the most revered of the exclusive rights of copyright holders. Why would anyone buy a book at a store if you could simply download it from a website? The best way to qualify for Fair Use when you want to post other people’s work online is to use a password-protected website where only the students enrolled in a class may view the copy. You should also take technological steps to prevent students from copying the materials, such as using a streaming process.
Presently, the most flagrant copyright-infringing activity on the Internet is sharing music, movies, or software. The music and movie industries are aggressively pursuing those who are downloading music or movies in file sharing forums such as peer-to-peer (P2P) networks. Thousands of lawsuits have been filed in the United States and many other countries in the world. See Downloading or Sharing Files/Software. Students who use the University’s Internet service to download or upload music, movies, or other unauthorized materials face consequences including being sued by the RIAA or the MPAA and losing a lawsuit that costs you thousands of dollars, being charged with criminal violations, or serving prison time.
When copyright infringement, through file sharing or otherwise, occurs on the University Internet service, WSU is also vicariously liable for copyright infringement. It is in violation of the Electronic Publishing and Appropriate Use Policy to download or upload materials from the Internet without permission. Any one on campus who is discovered engaging in this activity is required to take a class in copyright law and may lose their Internet service.
The same laws and penalties that apply to making illegal copies in the library or any where else apply to the Internet. When using the University Internet service on campus, it should be remembered that any one who infringes the copyrights of others not only violates federal law, incurring significant civil and criminal liability, but also violates the University’s Electronic Publishing and Appropriate Use Policy.Research Links