Copyright Basics: Scope of Copyright

Q.  OK, now I have a copyright to my musical work. What can I do with it?

A. The scope of copyright protection depends on whether a work is a musical work or sound recording. Copyrighted musical works give the owner of the copyright the exclusive rights over reproduction, creation of derivative works, first distribution, digital phonorecord deliveries, and public performance. The fact that these rights are exclusive means that anyone wishing to engage in the preceding activities must get the copyright owner’s permission.
•    The right of reproduction in this context generally means the right to prohibit others from copying or recording the musical work, regardless of how the work is fixed, without the owner’s permission. Typically, reproductions come in the form of either sheet music or a recording of the musical work (the latter is often referred to as a “mechanical” copy).
•    The exclusive right to create derivative works means that no one can modify the musical work or use part of the musical work to create a new work without the copyright owner’s permission. New works that rely on samples or recognizable melodies and/or lyrics of the copyrighted musical work qualify as derivative works, as do audiovisual works such as commercials, TV shows, movies, and websites that play the musical work along with images.
•    The exclusive right to first distribution means the copyright owner can control the first public sale or distribution of a copy of the musical work, but not subsequent sales or distributions of that same copy of the musical work (lawyer-types refer to this as the “first sale” doctrine). In real world terms, this essentially means that once the copyright owner sells someone a copy of the sheet music or recording of a song, all subsequent buyers are free to sell, give away, or dispose of that same copy as they wish. However, the copyright owner continues to retain the other exclusive rights, ensuring subsequent buyers cannot create their own new copies and sell them.
•    The exclusive right to control digital phonorecord deliveries means that no one can download a digital copy of the musical work (typically embodied in a sound recording) without the copyright owner’s permission.
•    Finally, the exclusive right over public performance prohibits people from performing a musical work live or playing a recording of the musical work to a public audience, including radio, TV, and Internet broadcasts.  It is worth noting one special characteristic of the exclusive right to public performance with respect to musical works. Unlike the other rights discussed so far, the public performance right is not controlled by the copyright owner himself, but instead is managed by one of a few organizations called performing rights societies. In essence, these performing rights societies grant permission, on behalf of the copyright owners, to radio and TV stations, clubs, department stores, or other venues where music is played for the public. In return for the permission, the performing rights societies then collect fees from the venues and disperse them to the copyright owners.

Q. What can I do with my copyright to a sound recording?

A. Copyright law provides owners of sound recordings with a slightly different set of rights than is granted to the owners of musical works. Specifically, the exclusive rights granted to the owner of a sound recording copyright are the rights to reproduction, creation of derivative works, first distribution, and public performance (note that there is no right to control digital downloads, as there is for musical works). Unlike with musical works, reproduction in the context of sound recordings is narrowly defined. Specifically, reproduction means to directly or indirectly recapture the actual sounds fixed in the recording. Thus, copying a recording from a CD would qualify as a reproduction of the sound recording (and musical work), but making a new recording of a song using the exact same instruments, and even musicians, playing the exact same notes would not qualify as a reproduction of the sound recording (however, it would be a reproduction of the musical work). Derivative works are defined in generally the same manner as with musical works. In this context, derivative works most often refers specifically to using a sample or the full sound recording to create a new sound recording or to accompany an audiovisual work. First distribution is also defined in the same manner as with musical works. Finally, public performance in the context of sound recordings applies only to digital audio transmissions, commonly known as webcasts.

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