Have you ever wondered why a separate Grammy Award is given out for Record of the Year and Song of the Year and it often goes to different people? For example, in 2014, the Record of the Year went to Daft Punk, as the performers of “Get Lucky” along with the record’s producers, mastering engineers and sound engineers. But, the Song of the Year went to the songwriters of “Royals” performed by Lorde. Well, here’s why. (Hint: It has to do with copyright law.)

Daft

What is a Copyright? 

Let’s take a look at some basic principles regarding the law of copyright in the United States.1

  • The federal government exclusively determines what qualifies for copyright protection, what rights are granted to the copyright owner(s) and whether someone is misusing (infringing) on someone else’s protected work. There is no longer any state copyright or common law copyright. 
  • A copyright is an original work of authorship fixed in a tangible medium of expression by the author or with the author’s permission. For example, that means as soon as you write your music down or create a music file, you have a copyright in the original expression of your work. You cannot get a copyright in your idea (not fixed) or in facts (not original).2
  • You don’t have to mail anything to yourself in order to obtain copyright protection. You also don’t need to register your work with the U.S. Register of Copyrights, but it’s certainly a good idea because you will have an easier time proving infringement and more options in the recovery of damages.

Copyright and Recorded Music

There are two separate copyrights in a recorded musical track.3

  • One copyright is in the Song itself, i.e., either the music if solely instrumental, or in both the words and the music.
  • The other copyright is in the Sound Recording — the permanent fixation of the sounds as the performers are recording the song and as later mixed and mastered.

Copyright in the Song

Initially, the copyright in the song is owned by:

  • the author of both the words and the music; or
  • the author of the music and the author of the words (two separate copyrights in song alone); or
  • the author of the music and the author of the words collectively as joint authors as long as they intended at the time of creation to combine their respective works into one song.

Copy

Traditionally, author(s) have assigned their copyright to a music publishing company who would exploit the songs and pay the authors royalties. In recent years, many songwriters either have begun acting as their own publishers, or, if they obtain a publishing deal, only assign the exclusive right to administer the song and not the copyright itself.

  • A Special Note On Joint Authors4

Unless there is written agreement that says something different, joint authors will own the copyright in equal shares. If ownership is not going to be equal, you need to sign a Song Split Agreement setting out the percentage shares. When it comes to joint owners, even if they have different percentage interests, each one has the undivided right to exercise those rights unless there is a written document that gives those rights to particular persons. The only obligation a joint owner has is to pay all the other owners their respective percentage interest in the money received. Copyright in the Sound Recording Most record labels include in their contracts that they are the owners of the copyrights in the master recordings. The labels take the position that even though these artists and technicians are the actual creators of the recorded performance, each one is a work for hire of either the label or the performer, for example, the producer. That means the label makes money from all the ways the sound recording is exploited. The performer, for the most part, only makes money the way the recording contract says it does.

  •  A Special Note on the Work-for-Hire Doctrine 5

Under the work for hire doctrine, the hiring party is the owner of the copyright from the beginning, that is, the actual creator never acquires any copyright interest. (The artist still makes money from the distribution of the There are two ways to become a work for hire under copyright law.

  • The hired party is a traditional employee, for example, is paid a weekly salary, receives benefits, is heavily supervised; or
  • The hired party has been specially commissioned to create the work, the work fits into one of nine statutory categories, and there is a written agreement saying it is a work for hire signed before the work is created.

With the exception of music commissioned for audiovisual works, performing and producing music alone is not one of the statutory categories. However, a work prepared for a compilation or collection of works is. Consequently, record labels have long taken the position that either an artist is a traditional employee of the label at the time of recording or, if the recording is part of an album, that it was commissioned for a compilation. The law still is murky on whether a performer, producer, or technician who provides original expression to the recorded music is a work for hire even if the recording contract says so. Recent events involving termination of a recording artist’s rights may eventually clear up this issue. But, for now, it’s always a good idea to at least have a provision that says if the artist is not determined to be an employee, then he assigns all right, title and interest in the recording to the label.

Note though, that there is a difference between a work for hire and an assignment. As a work for hire, the hired party never acquires a copyright interest. But, as an assignment, the hired party has the right to get it back in thirty-five (35) years (for the most part) if he, or his heirs, follow specific rules.6 This work-for-hire issue often comes up in urban music where the writer of beats “sells” them the rapper, for a flat fee and without any further involvement with the recording. However, assuming that the beats are original, unless the writer signs either a work-for-hire agreement (murky at best), or in the alternative, agrees to assign his rights to the music, he may be considered an owner of the music in that recording. The same is true if the producer, sound engineer, or other technical person can show that during the course of the recording, he made a contribution amounting to an original work of expression. And, remember that his share will be equal to yours unless you have a Song Split Agreement.

Here is one final word on works for hire. Even though talent may not own a copyright interest, you will often see them credited for the work they created on the liner notes. There is also a way to credit them on a copyright registration. Why Should You Care Who Owns the Copyright in the Work?7 In the case of the words and music, only the copyright owner(s) have the right to

  • Reproduce (CDs or electronically)
  • Distribute (make available for sale or license)
  • Prepare other works based on the song (rock to country)
  • Display the song (karaoke or greeting cards); and
  • Publicly perform the song live, over terrestrial radio, and by digital transmission (on stage, stream)

In the case of sound recordings, the copyright owner has the same rights as the owner of the song except that the exclusive right to publicly perform is limited to digital transmission. So while the labels make money from the public performance of a song on digital radio or digital subscription radio, they don’t make money when a song is broadcast over AM/FM radio. Bottom line? Without these exclusive rights, no one would ever be able to make money recorded music! Conclusion Do you now understand why Song of the Year (given to the songwriters) and Record of the Year (given to the producers and tech folks as credited work-for hire) are different? Hope so. ____________________________________________________________________________________ 1 17 U.S.C §§ 101-1330 (the “Copyright Act)”. The United States is also a member of several international treaties which govern how copyrights are protected abroad. 2   Copyright Act §102 3  Id. 4  Copyright Act §101, 201 and 204 5 Copyright Act §§ 101, 201 6 Copyright Act §203 7 Copyright Act§ 106

Musical Recordings — A Tale of Two Copyrights

Disclaimer: This article is intended for educational purposes only and is not to be construed as legal advice or creating an attorney-client relationship.

 © 2014 Carolyn Herman, Esq.