Andrew K. Gonsalves, The Daily Record Newswire
Songwriters are foundational to the commercial music industry. Sometimes they work in professional songwriting teams like the prolific duo of Jerry Leiber and Mike Stoller, who co-wrote a number of Elvis Presley’s biggest hits such as “Hound Dog” and “Jailhouse Rock.” Other times they work in solitude and supply fresh songs for the benefit of recording artists.
Still other times the recording artist is also the songwriter, with well-known examples being John Lennon and Paul McCartney of the Beatles. While not all songs will become hits or even make it onto a record, songwriters should be aware that their songs may be copyrightable works that could reward them monetarily. This article introduces the basic issues that songwriters should consider in order to protect and exploit their copyrightable works (songs) for commercial gain.
Copyright basics for the songwriter
Copyright is the form of intellectual property that protects a songwriter’s exclusive ownership interests in a song. As provided under the “copyright clause” of the United States Constitution (Article I, Section 8, Clause 8), Congress has enacted laws that give songwriters exclusive rights to their own songs.
Section 106 of the Copyright Act (17 U.S.C. § 106) lists the exclusive rights that are granted to the copyright owner of a song, which include the right to reproduce, distribute, publicly perform and create derivative works of the song.
Under U.S. copyright law, once an original song is fixed in a tangible form (e.g., written on paper, sung into a recorder), a copyright is established and conferred on the original songwriter. In other words, no copyright is created if the songwriter just sings or hums the song without writing it down or recording it. Therefore, the first thing a songwriter should do is document his song by writing it down or recording it.
For songs created after Jan. 1, 1978, the copyright lasts for the life of the songwriter or the last remaining songwriter (for joint works) plus 70 years. If the work was written anonymously, under a pseudonym or as a work for hire, the duration of the copyright is 95 years from publication or 120 years from creation, whichever expires sooner.
The duration of copyrights for songs created before Jan. 1, 1978, is determined using a different and somewhat more complicated set of rules. Once the copyright expires, the song enters the public domain and is available to anyone for exploitation without the need for permission from or royalty payments to the songwriter’s estate.
The importance of registering a copyright to a song
In the United States, copyrights are registered with the U.S. Copyright Office. Registering a copyright is relatively inexpensive and simply requires the songwriter to submit the appropriate form used for songs and to provide a deposit of the song (e.g., sheet music, CD recording). The registration can be mailed or electronically submitted to the U.S. Copyright Office.
While a songwriter need not register a song to hold the copyright in the song, there are important advantages to registering the copyright. For example, registering the copyright in a song is a prerequisite for bringing a lawsuit against an alleged infringer. Also, statutory damages and attorney’s fees are recoverable only if the copyright was registered before the infringement occurred or within 90 days of the first publication of the song.
This is important because having to prove actual damages or the infringer’s profits can be difficult. Further, just the threat of statutory damages and attorney’s fees can be enough to stop his infringing activity via a cease and desist letter, rather than requiring the copyright holder to file a lawsuit. Certainly, it is important to register a copyright for any song that is intended for commercial purposes (e.g., recorded for an album or used in an ad, motion picture, musical, etc.).
Monetization of a copyrighted song
Predominantly, songwriters make money from their songs through the receipt of royalties. Most songwriter royalties are in the form of either “mechanical royalties” or “performance royalties.” Over the years, the music industry has developed various ways of administering these types of royalties.
Mechanical royalties: Mechanical royalties are royalties paid by a record company to the songwriter and publisher in exchange for the right to record the song. The amount paid is generally based on a fixed or negotiated rate based on the number of records made and distributed by the record company and downloaded (digital copies). Mechanical royalties come into play after the songwriter has exercised his exclusive right to publish the copyrighted song.
To administer mechanical royalties, the publisher of the song will use an agency to issue mechanical licenses to the various record companies. In turn, the agency collects the mechanical royalties from the record companies and then administers the royalties to their member songwriters and music publishers. In the United States, the largest mechanical licensing agency is the Harry Fox Agency.
Performance royalties: Performance royalties (also referred to as public-performance royalties) are royalties paid to a songwriter for a third party’s public performance of the song. Public performances include, for example, playing the song on the radio, on television, in nightclubs, in restaurants, at live concerts, etc.
Because of the difficulty in administering licenses for each and every public performance of a song, the music industry has adopted a system that uses a group of “performing rights societies” to aid in the administration of performance royalties. This system uses so-called “blanket licenses” to allow a performing rights society to administer licenses to all entities interested in performing the songs owned by a publisher, as long as that publisher is affiliated with the performing rights society.
In the United States, the largest performing rights societies are BMI (Broadcast Music, Incorporated) and ASCAP (American Society of Composers, Authors and Publishers). Most foreign countries also have their own performing rights societies.
In order to take advantage of this system, song publishing companies must become affiliated with a performing rights society, which then licenses out the publisher’s songs to those wishing to perform the songs in public, collects the license fees from the performers, and pays the publisher. Songwriters get a share paid to the publishers by the performing rights societies.
In addition, songwriters can themselves become affiliated with a performing rights society, which in turn enables the songwriter to get paid directly by the society. It is understood that the songwriter can only become affiliated with one of the societies, e.g., either BMI or ASCAP. The songwriter should research which performing rights society fits her needs the best, because BMI and ASCAP have different ways of handling royalties and administering the performance licenses.
Other Types of Income Available to the songwriter: In addition to mechanical and performance royalties, the songwriter can make money from her songs through royalties for printed music (e.g., sheet music), synchronization rights (e.g., timed synchronization of the song with visual images), and electronic transmissions (e.g., digital downloads, ringtones, webcasting, subscription services, podcasting).
While the likelihood of making a living through songwriting is out of reach for most songwriters, copyright protection and monetization of a song should be a careful consideration by all aspiring songwriters.
—————
Andrew K. Gonsalves is a senior attorney at the intellectual property law firm of Heslin Rothenberg Farley & Mesiti PC. He can be reached by email at akg@hrfmlaw.com, or by phone at (585) 288-4832.
