Copyright in the World of Music.
Copyright! It's boring as hell and we all hate hearing about it, and it's almost a taboo topic for some in the music industry, but it's important to have an idea of what laws are in place, especially if you're a working musician, producer, or song writer. If you are a musician, producer, or song writer, you'd know how frustrating it can be when you create something new, only to find out our new idea isn't original. And also, the fact that our guitars, pianos and drum kits, especially in the Western World, are quite limited to their melodic scales, progressions and even beats. Even some of our lyrics come out a little too similar at times. I know because I do it all the time, and it is frustrating. So how do we get away with using the common ideas? There are a few little loop holes, to keep your ideas flowing.
How does it work for us?
According to the Australian Copyright Council (April, 2005), for professional artists and performers, intellectual property, such as original work, is automatically protected as soon as it is recorded in some way (for example, written down, recorded on audio-tape, or saved in a digital file). A work is regarded as “original” for the purposes of copyright law, if it has not merely been copied from another work, and it is the result of skill or labour on the part of its author. There is no registration procedure for copyright protection in Australia. The Copyright Act lists categories of material which are protected by copyright. One of these categories is “musical work”. Another category is “literary work”. Song lyrics are regarded as “literary works” for the purposes of copyright law. Copyright law in Australia is contained in the Copyright Act 1968 (Cth) and in decisions of courts.
Key points to consider:
A song may comprise of several different types of copyright works, each with different owners.
Creators of musical works also have moral rights in relation to their work.
Sound recordings are also protected by copyright. This copyright is separate and additional to any copyrights in material on the recording. Thus in a CD there may be:
a copyright in each musical work;
a copyright in the lyrics to each song; and
a copyright in the sound recording of the music and lyrics.
Although, there are some creative restraints, we still can utilise the common chordal progressions, beats/grooves, and production techniques. However, musical ideas such as melody, lyrics, and recordings are all reserved, so our creative ideas can clash with things we reference, heard, or idolise.
So who owns what?
If there has been an agreement about the commissioning of music, or about ownership, this agreement is the first place to look to work out who owns copyright.
If there has been no such agreement, the general rule is that the first owner of copyright in a musical work is the composer, and the first owner of copyright in lyrics is the lyricist; however there are some important exceptions.
If you are on staff (as opposed to working freelance), your employer will usually own copyright in works you create as part of your employment duties.
Generally, if you are working on a freelance basis, a person who pays you to create a work does not own copyright, but will usually be entitled to use the work for the purpose for which it was commissioned.
However State, Territory and Commonwealth governments generally own copyright in works made for them, or first published by them, unless there is an agreement to the contrary.
The Copyright Act allows you to make an agreement with other people about who owns copyright if you create music in collaboration with other people (for example, with other members of a band). It is generally a good idea to make a written agreement about ownership if you create music in collaboration with other people, as it helps to avoid misunderstanding and disputes later on.
So what are my rights as an owner?
If you own copyright in a musical work or lyrics, you are generally the only person who can:
reproduce it: for example, by recording a performance of it, photocopying it, copying it by hand, or scanning it onto a computer disk;
make it public for the first time;
perform it in public;
communicate it to the public (including via radio, television and the internet);
translate it (for lyrics); or
arrange or transcribe it (for music).
If you own copyright in a sound recording, you are generally the only person who can make copies of the recording, or perform it, cause it to be communicated to the public or rent it out.
In the music industry, the following terms are often used:
mechanical right: refers to the right to record a song onto record, cassette or compact disc;
synchronisation right: refers to the right to use music on a soundtrack of a film or video; and
performing rights: refers to the rights to perform in public and to otherwise communicate the work to the public.
According to the Australia-US Free Trade Agreement (AUSFTA), copyright in a published musical work lasts for the life of the creator plus 70 years. The same general rule applies to published lyrics.
Copyright owners can assign any or all of their copyright rights. This means that someone else becomes the owner of the rights. Alternatively, you can license the rights. This means that ownership of copyright is unchanged but someone else is permitted to deal with the work in specified ways. Copyright owners can limit the rights granted (for example, by type of use, or period of time).
Copyright owners can also impose conditions in return for an assignment or licence (for example, that the licensee cannot use the work until they have made an agreed payment).
Creators, including composers and lyricists have moral rights in relation to their musical works. The creator of a work has the right to:
be attributed as the creator of the work
take action if the work is falsely attributed as the work of another person
take action if the work is distorted or treated in a way that is prejudicial to your reputation.
So when do I know the Copyright has been infringed?
Unless a special exception applies, copyright is infringed if someone uses copyright material in one of the ways set out in the Copyright Act without the copyright owners permission. The special exceptions include fair dealings with copyright material for research or study, or for criticism or review. There are also special provisions which allow the recording of cover versions of works which have previously been commercially released, provided a royalty is paid, and special provisions for the use of copyright material by educational institutions, governments and libraries.
Using part of a work may infringe copyright if that part is important to the work—it doesn’t have to be a large part—it’s a question of fact and degree in each case.
If you think your copyright has been infringed, you will usually need advice from a lawyer about your chances of success in a legal action and what steps you should take. You need to be able to prove that the other work is the same as, or reproduces a “substantial part” of your music. You also need to be able to show that the similarity results from actual copying of your music (not just coincidence).
There isn't really a lot to it. The laws are quite simple, and the conditions are fairly straight forward. So if you're a musician, producer, or song writer, like myself, take an hour to understand what laws are in place. It could save you the lawsuit, and more importantly, you won't waste time messing around with an already 'owned' song, or production idea, and can focus more of your time creating new, unheard ideas for your next masterpiece. I mean isn't that what we do best anyway?
There's heap of information about Music Copyright laws. If you want to find out more, check out the following links:
Australian Copyright Council - https://www.copyright.org.au/
APRA AMCOS - http://apraamcos.com.au/music-creators/copyright/
Arts Law Centre of Australia - https://www.artslaw.com.au/
Music Rights Australia - http://www.musicrights.com.au/antipiracy/what-is-copyright/
AMCOS, A. (2018). Copyright. Retrieved from http://apraamcos.com.au/music-creators/copyright/
Arts Law : Information Sheet : Copyright. (2018). Retrieved from https://www.artslaw.com.au/info-sheets/info-sheet/copyright/
Music Rights Australia - Copyright FAQs. (2018). Retrieved from http://www.musicrights.com.au/antipiracy/what-is-copyright/