Spacebomb: Music Law 101

Let’s take a whack at Music Law 101. It can be a perilous jungle to navigate, but here, in Part I, I’ll lay it out in a way that even a non-Esquire can understand.

June 21, 2011; 10:22 AM • by Matt Rawls

Spacebomb Records returns to Balliceaux tomorrow with very special guest Joe Westerlund, which means the Spacebomb column is back. We have a lot planned for this bi-weekly go around, and we begin with team member and in-house lawyer Matt Rawls. Here he sheds light on the basics of copyright law and why it matters.

Earlier this spring, Matt White introduced the process of making a record here at Spacebomb. Now, the Spacebomb legal team – which consists of one person, multiple dog-eared legal treatises, and a few bookmarked Wikipedia articles – is here to describe some of the less glamorous work that goes into making and releasing a record. Consider this a sort of “Music Law 101.”

There are a few ways to tackle the topic of music law, but I’ll stick to the questions I’m asked most often. This week, in Part I, I’ll discuss the basics of copyright law, how copyrights apply to music, briefly look at how songs make money. In Part II, I’ll talk about what a publisher does and what a record label does, and explain what Spacebomb does, and highlight the ways we’re unique.

U.S. copyright law is laid out in the Copyright Act of 1976. Under the act, copyright protection extends to “original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.” Doesn’t that make you want to go to law school?

Here’s the simple translation: copyright protection exists for an original work, which is fixed in any tangible form.

The originality requirement is a little bit nebulous. It clearly implies that work must be original, and not copied from something else. It also requires the work must be sufficiently original in its creativity. For example, a phone book is not copyrightable because no real creativity is required – just names listed alphabetically with corresponding numbers. In contrast, something as small as the five notes played by the spaceship in Close Encounters of the Third Kind are copyrightable because of their creative originality.

The requirement that the work be fixed in some tangible form is much simpler. Basically, as soon a song is written down, or recorded, it has copyright protection. If an artist creates a song, perfects it, and even performs it, but does not write it down or record it, the song is not yet copyrighted. If the song is recorded on a cheap tape player, or written down on paper, however, the song then has full copyright protection.

It is important to note that a song does not have to be registered with the Copyright office to create a copyright. There are some advantages to registering a work, but as soon as an original work is fixed in tangible form, the copyright exists.

So what does a copyright get you? A copyright is actually several rights bundled into one. For a song, a copyright grants the owner the exclusive right to:

reproduce the song;
distribute copies of the song;
perform the song publicly; and
make a derivative of the song.

That means that no one can make copies of a song, distribute those copies to the public, perform the song in public, or make a derivative of the song (i.e. a Weird Al parody) without the copyright owner’s permission.

In the real world, and especially the music world, things are always a bit more complicated. Multiple copyrights typically exist for any one song. A simple rule of thumb is that any song you hear has two different basic copyrights: the songwriting copyright, and the sound recording copyright. The person who writes the song naturally owns the songwriting copyright, and the people performing on the recording own the other.

The division between these two copyrights was cleaner back in the day. In the earlier days of the music industry, the songwriter usually didn’t perform on the albums, and the musicians usually didn’t write the songs. The songwriter would write a song, and then sell the song to a record label. The record label would then hire musicians to perform the songs on the recording. Now, more musicians write their own songs, but the same principles apply.

I’ll give a simple example. Let’s say you have a band with five members, and two of those members write the songs, with all five performing on the recording. The two writers own the songwriter’s copyright, and all five members own the sound recording right. When the band sells the album to a record label, the label will have to make two separate payments. First, it will pay all five members for the sound recording. Additionally, the label will have to make a second payment to the songwriters for each copy of the album. The same principles apply if the song is used on a soundtrack for a movie. The label or the band will be paid for the recording, and the songwriter will be paid separately for the song itself.

So clearly, there can be good money in songwriting. It goes further, too. Say someone wants to cover one of the songs on the album. To cover a song, the songwriter must be paid for the right to use that song. This money is for the songwriter only, and not for the band which did the first recording. This is where “compulsory licenses” come into play. A full explanation of compulsory licenses is probably more than you’d care to read, and definitely more than I’d care to write. Briefly, congress has created a maximum rate for the cost of covering a song. That means a song owner must allow covers of any previously recorded song, so long as the statutory rate is paid.

Those are the basics of copyright law. In Part II we’ll look at how artists make money from their copyrights; specifically, what record labels and publishing companies do, and how artists get paid. More importantly, I’ll also discuss what Spacebomb does, and the ways we are unique.

— ∮∮∮ —

Spacebomb Records presents Joe Westerlund at Balliceaux on Wednesday, June 22, at 10pm. Ages 21+, $5 cover. Balliceaux is located at 203 N. Lombardy St. in Richmond, VA. balliceauxrva.com (804) 355 3008