Introduction and Copyright Overview

Copyright © 2012 by Lisa A. Alter. All Rights Reserved.
Third Edition. Lisa A. Alter, Esq.

What is a musical composition? A series of notes and chords? Words and melody? Poetry and rhythm? A musical composition may mean different things to different people, but according to United States copyright law a musical composition is an original work of authorship fixed in a tangible medium of expression.1 Compositions are a type of intellectual property, protected by copyright. Copyright protection extends to the musical work, including both music and lyrics, but not to the idea that gives rise to or is expressed by the composition. A copyright in a musical composition vests in the owner a myriad of privileges and protections codified in the copyright laws of individual countries as well as international treaties and conventions. This publication focuses primarily on those sections of the United States Copyright Act (the “Copyright Act”) most relevant to authors, owners, and licensees of musical compositions.

United States copyright law can be extremely complex; however it is important that those with an interest in a musical composition, including authors, heirs, music publishers, and administrators, have a basic understanding of the key aspects of the law in order to effectively protect and exploit their musical property. This handbook sets forth fundamental guidelines for the safeguarding of your copyrights from creation until the date each composition enters the public domain. The handbook is intended as an overview. For a specific understanding of the application of the principles contained herein to your own catalogue, you should consult with a copyright attorney and review the more detailed information available from the Copyright Office.2

Copyright—An Overview

Subject Matter of Copyright

The Copyright Act grants copyright protection to 8 categories of “original works of authorship” including:

  • literary works;
  • musical works, including any accompanying words;
  • dramatic works, including any accompanying music;
  • pantomimes and choreographic works;
  • pictorial, graphic, and sculptural works;
  • motion pictures and other audiovisual works;
  • sound recordings; and
  • architectural works.3

Sound Recordings

Sound recordings created before February 15, 1972 are not subject to federal copyright protection. Pre-February 15, 1972 sound recordings are typically protected under state statutes and common law. Sound recordings fixed on or after February 15, 1972 are protected under the Copyright Act. These sound recordings enjoy copyright protection that is distinct from the protection accorded to the individual compositions embodied in the sound recording. A transfer of rights in a sound recording does not convey rights in the compositions or other copyrighted works embodied in the sound recording.4

Authors of Copyrighted Works

The term “author” is not expressly defined in the Copyright Act, other than with respect to works made for hire (where the employer is deemed to be the author).5 While it is generally understood that the author of a book is a person or persons who wrote the words and/or illustrated the book, and the author of a composition is the person or persons who wrote the music and/or lyrics, there is debate over who constitutes the author(s) of a sound recording.

Copyright Ownership

Copyright ownership of a work vests in the author or authors of the work upon its creation.6 Authors of joint works are co-owners of the copyright. Authors of works contributed to collective works own the copyright only in their contribution, which is distinct from the copyright in the collective work as a whole. In the case of a work made for hire, absent an agreement to the contrary, the employer will own all rights in the work.7

Joint Works

In the United States, a composition written by two or more authors is generally deemed to be a “joint work,” which is defined as “a work prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole.”8 Ownership of joint works is presumed to be shared equally by the authors, absent an agreement to the contrary. Each author of a joint work is free to enter into a nonexclusive license for the entire work, provided that the author issuing the license accounts to his or her co-author(s). In some cases, co-authors enter into an agreement among themselves, agreeing to work cooperatively in issuing licenses. As a practical matter, licensees of music publishing rights often insist on obtaining approval on behalf of each author of a work even if the grant of rights is non-exclusive.

Scope of Copyright Ownership

Section 106 of the Copyright Act9 lists six exclusive rights of the copyright owner, which include the rights:

  1. to reproduce the copyrighted work in copies or phonorecords;
  2. to prepare derivative works based upon the copyrighted work;
  3. to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
  4. in the case of literary, musical, dramatic, and choreographic works, to perform the copyrighted work publicly;
  5. in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and
  6. in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.10

Transfer of Copyrights

Copyright ownership may be transferred through assignments and contracts made by the original or subsequent copyright owner, or may be bequeathed by will. If an author or current copyright owner passes away leaving an estate that includes works under copyright, ownership will pass either to the beneficiary designated in the author/owner’s will or, if there is no will, to the author/owner’s legal heirs.

Works Made For Hire

What Are Works Made For Hire?

Works made for hire are works of authorship that are deemed to be created by an employer (who may be an individual or an entity) although the actual act of creation is done by one or more other individuals. According to case law, pre-1978 works made for hire are works prepared by an employee within the scope of his or her employment. The work made for hire status of works created on or after January 1, 1978 is determined based on the two-prong test outlined in the Copyright Act.11 In order to qualify as a work made for hire, the work must:

  1. be a work prepared by an employee within the scope of his or her employment; OR
  2. be a work specially commissioned for use as a contribution to one of nine enumerated categories where the parties expressly agree in writing that the work shall be considered a work made for hire.

Works Prepared by An Employee Within the Scope of Employment

The first prong of the work made for hire test has been the subject of judicial review. The case law indicates that the courts will evaluate “the hiring party’s right to control the manner and means by which the product is accomplished.”12 In undertaking such an examination, the United States Supreme Court cited the following general agency criteria:

  • The skill required;
  • The source of the instrumentalities and tools;
  • The location of the work;
  • The duration of the relationship between the parties;
  • Whether the hiring party has the right to assign additional projects to the hired party;
  • The extent of the hired party’s discretion over when and how long to work;
  • The method of payment;
  • The hired party’s role in hiring and paying assistants;
  • Whether the work is part of the regular business of the hiring party;
  • Whether the hiring party is in business;
  • The provision of employee benefits; and
  • The tax treatment of the hired party.

Works Specially Ordered or Commissioned

Under the second prong of the work made for hire test, a work specially commissioned for one of the following uses will be deemed a work made for hire provided that the parties agree in writing that the work is being prepared as such:

  • As a contribution to a collective work;
  • As part of a motion picture or other audiovisual work;
  • As a translation;
  • As a supplementary work;
  • As a compilation;
  • As an instructional text;
  • As a test;
  • As answer material for a test; or
  • As an atlas.13

Show 13 footnotes

  1. 17 U.S.C. § 102(a).
  2. Address your inquiries to the Library of Congress, Copyright Office, 101 Independence Ave. S.E., Washington D.C. 20559-6000; telephone (202) 707-3000; website www.copyright.gov.
  3. 17 U.S.C. §102.
  4. 17 U.S.C. §202.
  5. 17 U.S.C. §201(b).
  6. 17 U.S.C. §201(a).
  7. 17 U.S.C. §201(b).
  8. 17 U.S.C. § 101.
  9. 17 U.S.C. §106.
  10. Id.
  11. 17 U.S.C. §101.
  12. Community for Creative Non-Violence v. Reid, 490 U.S. 730, 751 (1989).
  13. 17 U.S.C. §101.