What Songs Can Have a Copyright? / Creative and Original
by Sue Basko
This is part 3 of a four-part series. Please read all the parts. This is not legal advice and may not apply to your particular situation. You should consult with an attorney.
To go to the other lessons, click on them:
What Songs Can Have a Copyright? What are: Creative and Original?
As explained in the prior lesson, to be eligible to have a copyright, a song must be:
3) Set in tangible form.
In lesson 2, I told you what "tangible form" means. The song that you set into tangible form must be creative and original. In the context of copyright law, these two words are "terms of art," which means that they have specialized legal meanings that are different from the meaning in a ordinary dictionary. In everyday use, we may think of creative and original meaning about the same thing. In law, these are two very different meanings.
ORIGINAL - what it means.
Original means that the song must originate with you. There are three parts of a song on which copyright may be held -- lyrics (words), music, and arrangement. Copyright can also be held on the recording itself. The part on which you claim copyright must be your own work. That means you did not copy it from someone else.
Samples, loops, beats, remixes. Originality gets kind of tricky in this age of using samples and loops and beats and remixes. In most cases, if you use samples or loops or make remixes, the work will be a unique creation that is yours. However, you still must be certain that you have the right to use the sample or loop or make the remix, because in most cases, someone else owns the copyright to those elements.
Having something be your own work and being able to be protected by copyright are two different things, for you cannot violate someone else's copyright to obtain your own copyright. You must obtain the proper permission and licensing.
Sampling. A sample is a part of someone else's recorded song that is inserted into your song recording. To use a sample, you need 3 things:
1) You need to get Master Use Rights from the copyright owner of the recording you are sampling, which is usually the record company;
2) You will need permission from the song publisher;
2) You need a mechanical license for the recordings you will produce and distribute. This is the compulsory license that you pay at statutory rates, which is 9.1 cents per copy for songs 5 minutes and less.
FOR more information, see: Music Samples - How to Use Them Legally
Samples Re-recorded. Some artists want to use a sample of another artist's song, but instead of taking the original recording, they re-record it themselves or have studio musicians re-record the sample. To be on the safe side, the artist should still get the Master Use Rights from the master owner, and must still get permission from the publisher, AND obtain the compulsory license and pay the statutory royalty rates.
Remixes. A remix may be of one song or of a number of songs. Most remixes are bootleg and of dubious legality. If you are planning to sell a remix, you should consult with a music lawyer.
To make a legal remix, you need 3 things:
1) You need to get Master Use Rights from the owner of the copyright on the recording(s) you are remixing, which is usually a record company. This means you are asking permission from the record company of the original song to make the remix.
2) You need to get permission from the owner of the copyright on the music and lyrics of the song you are remixing, which is usually the publisher. This means you are asking permission from the publisher to make the remix.
3) You need a mechanical license for each of the songs in the remix. This is the compulsory license that you pay at statutory rates, which is 9.1 cents per copy for songs 5 minutes and less. For recordings over 5 minutes, the rate is 1.75 ¢ for each minute, rounded up. Remixes tend to be long and a lot of dance remixes blend many songs. If these are done legally, the royalties will be expensive.
Making a remix is very similar to using samples. So, it may help you to read this related blog post: Music Samples - How to Use Them Legally
Sometimes a music artist will arrange for a remix by giving the original tracks to a remix artist. In other words, they come to you, not vice versa. If you are the remix artist, get the agreement formalized in writing between you, the musician, the musician's recording company or record label, the musician's publisher, and any other party to the musician's copyright ownership. Try to be sure that you also have the right to sell the remix that you have created. And you will need to pay royalties on each remix sold.
Loops and Beats. Using loops or beats is a different matter. Most of these are created especially to be used in compositions, but are not part of any song, the way a sample is. People sell or license loops or beats. Be sure you have the right license for the way you are using it.
Loops and beats in ProTools and Garage Band. Many music artists use ProTools and Garage Band and such programs to create songs. Loops and beats are a great way to get the building blocks that you need to kickstart the creative process. If you buy a music program that comes with loops and beats, such as ProTools or Garage Band, that program comes with a license that tells how you can use the loops and beats. You must read this or have a lawyer read it for you to be sure that you are using it in an allowed way. In most cases, you can legally use the loops from these programs within your song and have full copyright ownership of your song. You cannot, however, re-sell the loops themselves.
Beat and Loop Artists. Beat or loop artists create original beats and loops. They license or sell these beats and loops. Usually a license will be for a certain number of copies sold. Sometimes it is an unlimited number of copies, but a nonexclusive license -- which means that same beat or loop can show up in the songs of many other musicians. An exclusive license means that the beat or loop is being given for your use only. An exclusive license is going to cost significantly more than a non-exclusive license and may require payment of points (percentages) on the sales.
Lawsuits for Copyright Infringement on Songs. Every now and then, a person will sue a major musical artist claiming that the artist "copied" their song. In my opinion, these lawsuits are almost always nuisance suits brought about by delusional individuals. In some cases, the person claims to have secretly written hundreds of wonderful songs, it just so happens they kept them all hidden from public hearing. And then, somehow, a famous person got ahold of the songs through some secretive means and copied them. I think lawyers who engage in bringing such suits are money-hungry bad guys trying to hammer money out of what they think is a big pockets defendant. Coldplay has been the target of several such lawsuits, each more annoying than the next.
Protections for Legitimate Songwriters. If you are a legitimate songwriter and you want to protect your original songs, simply do the following: register the copyright on your songs, register your songs with a PRO (performing rights organization) such as ASCAP or BMI, record your songs, perform your songs, sell your songs online, and make the best use of your songs that you can. Realize that the world of music feeds off common themes of sound and words. Realize that some songs will share similarities to your songs. Realize that you are not alone in the world. And continue to create. You are sharing part of a common musicality, and hearing familiar sounds or words should not lead you to think someone is stealing your work or invading your brain and that you must file a lawsuit. Seriously, that stuff is crazy and annoying.
If however, someone else actually has recorded your exact same song on which you have registered copyright and filed with a PRO, and has done so without buying a statutory license, then write them a letter about it or have a lawyer do that for you, and/or contact the licensing agency.
CREATIVE - what it means.
For a song to be eligible for copyright, it must be creative, original, and set into tangible form. We have already looked at the meanings of original and tangible form. Creative is a legal term of art particular to copyright law. Creative means that there is an artistic arranging of elements to create a cohesive whole. It means that what is made is not "stock."
The determination of whether a song meets the legal criteria for "creativity" will come about only in a lawsuit for copyright infringement. For example, suppose an unknown songwriter claimed that he wrote a song with the lyrics: "Ooooh baby, I need you," and that a famous singer copied those lyrics. To get past a motion for summary judgement ( a court motion that ends the court case before it gets rolling), the plaintiff (person filing the suit) would have to show that the defendant (person being sued) had access to the plaintiff's lyrics. Then, the plaintiff would have to prove that the defendant's lyrics were similar. If the plaintiff could prove these two points -- access and similarity, the lawsuit would still likely fail, because "Ooooh baby, I need you," are not creative lyrics, but are lyrics of a stock quality in rock music.
The same goes for standard musical phrasings, chord changes, bass riffs, etc. Many of these are stock in the musical genre of folk, rock, pop, hip-hop, etc.
The Copyright Office does not check your music or lyrics to determine if they are "creative." However, if you ever were to sue anyone for copyright infringement, you better make sure first that what you are claiming as your own creativity is not simply part of the common stock of the genre.
From today's lesson, remember:
For a song to be eligible for copyright, it must be:
3) Set in tangible form.
Take care and I hope you will read all the lessons as I put them up here. -- Sue
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