Copyright Basics: What Can and Cannot Be Copyrighted?

Q.  Does my music qualify for copyright protection?

A.  In order to copyright a work, two requirements must be met.  First, the work must be original.  Original in this context generally means that the work was not copied from someone else’s work.  Second, the work must be fixed in a tangible medium of expression.  With respect to music, fixation in a tangible medium refers to recording the work on something you can hold or touch.  Examples are writing a song down on paper or recording a song onto a storage device such as a tape, DAT, CD, DVD, computer hard drive, or other recording medium.  Merely performing a song live does not fix the work in a tangible medium.

Within the subject area of music, there are a number of important types of works that merit discussion.  One of the most important distinctions to make is between a musical work (also referred to as a “composition” or sometimes, confusingly, a “song”) and a sound recording (also referred to as a “master”).  A musical work is comprised of the musical notes and rhythms, as well as lyrics, of a song.  A sound recording is a particular recording of a musical work.  The reason for the distinction is that the individuality in expression that occurs during a particular performance has independent artistic value separate from the underlying musical work.

Q.  A bunch of us jam every week at a local club.  What about the copyrights to that music?

A number of things are not copyrightable.  First, songs or performances that are not fixed in a tangible medium are not copyrightable.  This includes songs in one’s head or songs a band has been playing live but has not yet recorded.  To be copyrightable, a song must be written down on paper or recorded.

Q.  My music is so different that it deserves its own Grammy category.  Can I stop other musicians from using my sound?

Ideas and concepts are not copyrightable.  Only the “expression” of an idea is copyrightable (the way you describe the idea).  For example, suppose an artist records a song or album that is later credited with creating an entirely new genre of music.  The artist cannot claim a copyright over the entire genre.  The artist may only copyright particular song, sound recording, and album.

Q.  Some guy says he used our song title first so he owns the rights to the name.  Is he full of it?

A. Words and short phrases (written or musical), are generally not copyrightable.  This includes song and album titles.  However, names, titles and phrases may be protected under other laws, such as trademark.  With respect to musical notes, whether short phrases are copyrightable is decided on a case-by-case basis.  For example, the five notes played by the spaceships in the movie Close Encounters of the Third Kind are copyrightable because of their originality.

Q.  I want to record “The Star-Spangled Banner” (written in 1812).  Do I need to get permission first?

Songs in the public domain are not copyrightable. Copyrights have a limited duration. Once the term of the copyright has expired, the song enters the public domain – that is, it is owned by the public. After a song enters the public domain, anyone is free to use the song however he or she may choose. For example, songs in the public domain may be covered or sampled without the original creator’s permission. However, any new recording of a song in the public domain is copyrightable as a sound recording.

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