Copyright for Musicians

COPYRIGHT FOR MUSICIANS: Another in our series of legal resources for creative people about.

  • What is copyright?
  • How does copyright apply to musicians?
  • What else does copyright apply to?
  • What are the individual rights that are included in copyright?
  • Who owns the copyright in something? 
  • Can more than one person own the copyright in something?
  • Do I have to register my copyright?
  • Are there any other requirements before copyright will apply?
  • How long does copyright last for?
  • How do people know that I am the owner of my copyright?
  • Are there any other ways I can let people know I am the owner of my copyright?
  • Are there any other organisations that can help me administer my copyright?
  • Are there any situations where copyright does not apply?
  • Are my copyright rights enforceable throughout the world?
  • What is copyright Infringement and how does it occur?
  • What can I do if someone is infringing my copyright?
  • How do I transfer my copyright to someone else?
  • Do I have to assign my copyright to enable someone else to use it?
  • What is the real difference between assigning and licensing copyright?
  • What are some of the agreements in the music industry that involve assignments and licenses of copyright?

The information provided on this blog has been made possible by the funding received by from the New Zealand Law Foundation.

pastedGraphic.png
This Fact Sheet is not legal advice.  This information is intended to provide a general outline of the relevant legal issues and further professional advice should be sought before any action is taken in relation to the information contained in this Fact Sheet.
This checklist remains at all times the property of the Depot Artspace.  You may make use of this Fact Sheet only for your own personal information.  Under no circumstances may this Fact Sheet or the information in it be copied or distributed to any third party by you without the prior written agreement of the Depot Artspace.

What is copyright?

Copyright is a kind of ‘intellectual property’.  Other kinds of intellectual property include trade marks and patents.  For more information on trade marks please refer to our ‘Trade Marks’ Fact Sheet.

The term ‘copyright’ is really just a broad description of a group of more specific individual rights.  So when you hear people talk about copyright existing in something or applying to something what is really meant is that the group of more specific rights comprising copyright apply to the thing in question.

How does copyright apply to musicians?

Copyright only applies to certain kinds of things.  Most importantly for musicians some of the individual things that copyright applies to are:

  • Music by itself;
  • The lyrics that are included in a song; and
  • A sound recording (no matter what format recorded in).

Although it is often talked about someone owning the copyright in a song, as you will see from the above, the actual situation is that there is not just one set of copyright rights in a song but two.  One set of copyright rights in the music and one set of copyright rights in the lyrics.

What else does copyright apply to?

Some of the other things that copyright applies to that are relevant for musicians are:

  • Artistic works – which would include the artwork that is completed for a CD or a band poster or even a photograph that is taken of a musician; and
  • Films – which would include music videos

If you would like to find out more about copyright in artistic works please refer to our Fact Sheet on ‘Copyright for Visual Artists and Photographers’.

If you would like to find out more about copyright in film please refer to our Fact Sheet on ‘Copyright and Moral Rights in the Film and TV Industries’.

What are the individual rights that are included in copyright?

Copyright gives the holders of copyright in something in which copyright can exist, such as music or lyrics to a song or a sound recording of a song, a range of exclusive rights.  These rights can either be exercised by the

copyright holder themselves or they can grant other people the right to exercise these rights on their behalf.

The exclusive rights provided by copyright include:

  • The right to copy the copyright work;
  • The right to release copies of the copyright work to the public whether by sale or otherwise;
  • The right to perform the copyright work in public; and
  • The right to broadcast the copyright work.

Who owns the copyright in something? 

Generally speaking the person that creates the thing in which copyright is able to exist is the owner of the copyright.  There are some exceptions to this:

  • If you create music or lyrics in the course of your employment then your employer will own the copyright in these.
  • If you agree to create a sound recording for someone and that person pays or agrees to pay for the making of the sound recording, then that person will own the copyright in the sound recording.  This is the basis on which record companies come to own the copyright in any sound recordings that artists signed to them create.

Although the above is the default position under copyright law in New Zealand, any of the above presumptions can be changed by a written agreement.  So for instance an agreement could be entered into between an employee and their employer to provide that the employee will own the copyright in any music or lyrics they create in the course of their employment.

Can more than one person own the copyright in something?

It is possible for more than one person to own the copyright in something in which copyright can exist.  A classic example of this is where two or more people collaborate on writing the music to a song.  In this case each person will be a part owner of the copyright.  Unless the writers decide by written agreement between themselves the percentage ownership they will each have in the music then at law they will each be deemed to have an equal share in the music.  Under copyright law this also means that none of the joint copyright holders will be able to exercise any of the copyright rights in the music unless they have the agreement of the other joint copyright holders.  

It is important to note though that as copyright can separately exist in music and lyrics, it is possible for the lyrics to a song and the music to a song to be written by two separate people and for the separate writers of the music and the lyrics to be able to control separately the lyrics and music as they see fit without any permission being needed from the other.

Do I have to register my copyright?

Copyright does not need to be applied for or registered.  Due to the workings of the Copyright Act 1994 copyright arises automatically when something in which copyright can exist is created.  It is important to note however that in order for copyright protection to arise in music or lyrics they must be recorded in some kind of physical format.  This includes for instance being written down or recorded in a recording studio.

Are there any other requirements before copyright will apply?

As well as having to be recorded in some kind of physical format, in order for copyright to apply, the music, lyrics or sound recording must also be original.  This means they can’t be comprised of a copy of the whole or a substantial part of other (as applicable) music, lyrics or a sound recording.  For this originality to exist copyright law also requires that there must have been some degree of effort and skill in the creation of a claimed copyright work.  It should be noted however that simply arranging for the making of a sound recording (e.g. paying for it) is generally regarded as satisfying this requirement in respect of originality for sound recordings.

How long does copyright last for?

In respect of music or lyrics copyright lasts from the time that copyright comes to exist in such music or lyrics (e.g. the point at which all of the requirements mentioned above are satisfied) until 50 years after the death of the person who created the copyright work.

In respect of sound recordings copyright only lasts for the longer of either fifty years from the end of the calendar year in which the sound recording is made or fifty years from the end of the calendar year in which the sound recording is made available to the public.

How do people know that I am the owner of my copyright?

As copyright does not have to be registered or notice given of its creation in any kind of formal way, proving who the owner of copyright is can sometime be problematic.  However there are some practical steps that musicians can take in this regard.  Perhaps the easiest way is to include the following note wherever the music or lyrics are reproduced or on any physical copy of a sound recording that is produced:

© [insert name of copyright owner], [insert year of creation of the work]

e.g. © John Smith, 2008

The above note is sometimes also followed with wording such as ‘All rights reserved’.  You sometimes also see a symbol that looks like the standard

copyright symbol ‘©’ but is rather a small p in a circle and this symbol is often used to signify ownership in the copyright of a sound recording.

Although adding the above note will not necessarily give a musician any better rights in any case, it at least puts anyone else on notice that comes across the lyrics, music or sound recording in question, that someone is clearly asserting their copyright ownership.

Are there any other ways I can let people know I am the owner of my copyright?

In respect of any songs (e.g. comprising the music and lyrics copyrights discussed above) musicians should make sure they register their songs with the Australasian Performing Rights Association, more commonly referred to as ‘APRA’ (www.apra.co.nz).  As well as providing many other benefits such as ensuring that any public performance and broadcast income generated from the licensed use of the songs is collected (such as when a song is played on the radio or TV or if an appropriate Live Performance Return is completed, when the song is played live,) APRA’s register of songs written by its members also serves as an excellent independent record of song ownership.

In respect of any sound recordings, ownership of these can be registered with Phonographic Performances New Zealand Limited, more commonly referred to as ‘PPNZ’ (www.ppnz.co.nz).  PPNZ collects public performance and broadcast income from the licensed use of its members’ sound recordings.  PPNZ’s register of its members’ sound recordings serves as an excellent independent record of sound recording ownership.  PPNZ also runs something call the Recording Artists and Producer’s Fund, more commonly referred to as the ‘RAP Fund’.  This can be joined through the PPNZ website.  PPNZ uses a portion of the general revenue it collects to finance the RAP Fund.  This essentially provides for a further payment to New Zealand recording artists and sound recording owners whenever such registered sound recordings are publicly performed or broadcast.

Are there any other organisations that can help me administer my copyright?

Another organisation that musicians should be aware of is the Australasian Mechanical Copyright Owners Society, more commonly known as ‘AMCOS’.  Where as APRA administers the specific copyright rights relating to the public performance and broadcast of songs, AMCOS looks after the specific copyright rights relating to the reproduction of its members’ songs.  This covers instances such as where songs are reproduced on an album or where they are made into ringtones.  AMCOS also has licenses in place with the major television networks in New Zealand which provide for the use of AMCOS’ members’ music in certain situations in TV shows.  AMCOS will collect all income generated from all of these uses on behalf of its members

and then distribute it accordingly.  Without having to sign a publishing agreement with a publisher, (for more information on publishing please refer to our Fact Sheet ‘Publishing Agreements’,) becoming a member of AMCOS provides a good way of ensuring all such income is promptly collected, as this is likely to be a very administrative and time intensive job for any reasonably successful musician to undertake on their own.

For the avoidance of doubt although APRA is involved in the administration of AMCOS, it is in fact the case that APRA and AMCOS are two separate organisations.  This means that just by being a member of APRA a musician is not automatically a member of AMCOS.  If a musician wants to become a member of both organisations then a separate application must be made to each organisation.

Are there any situations where copyright does not apply?

There are in fact a number of cases when the otherwise exclusive rights provided for by copyright will not apply.  Examples of these include situations of legitimate review of the music, lyrics or sound recording in question, where the music, lyrics or sound recording are only incidentally used, where they are used in relation to the reporting of current events, where they are used for private research or study or for certain other educational purposes.

Generally speaking however any purely commercial use of music, lyrics or a sound recording to which copyright applies will not fall within one of the exceptions to copyright protection.  Also the exceptions that do exist have quite stringent terms that have to be met before such an exception can be found to apply.

Are my copyright rights enforceable throughout the world?

Copyright law varies in different countries around the World.  However, most countries are parties to international treaties under which countries essentially agree to recognise copyright in a work created in a foreign country party to the applicable treaties.  

It is important to note however that some of the basic principles of copyright as they apply in New Zealand are in fact different in other countries.  For instance in many other countries including Australia and America, copyright lasts for much longer than it does in New Zealand.  Also in America there is a registration process that applies in respect of copyright which although not essential does provide significant benefits to the copyright holder if it is complied with.

What is copyright Infringement and how does it occur?

Copyright Infringement occurs when someone exercises any of the rights granted exclusively to a copyright holder without the copyright holder’s

permission.  For example, copying all or a substantial part of a sound recording without the permission of the copyright owner or making a sound recording of certain music or lyrics without the permission of the applicable copyright owners.

A common example of copyright infringement in the music industry is of course the illegal downloading of music from the internet through services such as LimeWire.  Another very typical example of copyright infringement in the music industry comes where people sample without permission other people’s sound recordings.  This happens most commonly in hip-hop.  In these cases of unauthorised sampling there will be an infringement of the copyright in the sound recording that has been sampled as well as the copyright in each of the music and lyrics included in the sound recording.  As there is no definitive point at which copyright infringement will incur other than when a ‘substantial’ portion of a copyright work has been used, in any situation where sampling is being considered permission should ALWAYS be sought from ALL the affected copyright owners.

What can I do if someone is infringing my copyright?

If someone is infringing your copyright and you are not able to resolve the matter directly with the party in question yourself, you should contact a lawyer with experience in the music industry to provide you assistance in asserting your rights.  As both the commercial practices in the music industry and the way in which copyright applies within the music industry are quite unique, if you do have to get legal advice you need to be sure your lawyer has experience specifically in dealing with legal issues in the music industry.

The Copyright Act 1994 provides for a range of penalties for someone who is found guilty of infringing copyright.  Depending on the type of infringement these penalties range from criminal penalties such as jail time through to substantial fines.

How do I transfer my copyright to someone else?

Copyright is transferred by assigning the rights in the copyright in question to someone else.  In New Zealand to be legally binding, an assignment of copyright must be in writing and signed by the person who is assigning away their copyright.

Do I have to assign my copyright to enable someone else to use it?

Without giving away ownership in any specific copyright, permission can also be given to other people to make use of the copyright in question in certain specific ways or for a certain period of time only.  This is known as a licence.  A licence does not have to be in writing but an exclusive licence does.  However in any event for the sake of certainty any dealings in copyright

should be covered off in a written agreement so that there is no confusion over what exactly has been agreed. 

What is the real difference between assigning and licensing copyright?

It is important to be very wary of the differences between assignment of copyrights and licensing copyright.  An assignment of copyright is effectively a sale, meaning the ownership in the copyright will transfer to someone else.  However, with a licence the copyright owner retains ownership of the copyright and is just granting someone else the right to do certain things with the copyright.

The difference between assigning copyright and licensing copyright could be compared to the difference between selling a car to a friend, effectively assignment, and just letting the friend borrow the car for a while, effectively licensing in this context.

What are some of the agreements in the music industry that involve assignments and licenses of copyright?

A Recording Agreement will generally include a licence from a musician to the record label to enable the record label to record the musician’s copyright protected lyrics and music in the course of making sound recordings.  For more information on Recording Agreements please refer to our Fact Sheet ‘Recording and Licensing Agreements’.

A Licensing Agreement will include a licence to the record label of the sound recording owned by the musician to enable the record label to produce copies of the sound recording for sale.  For more information on Licensing Agreements please refer to our Fact Sheet ‘Recording and Licensing Agreements’.

A Publishing Agreement will generally include either a licence or an assignment of a musicians copyright in certain specified music and lyrics to the publisher to enable the publisher to seek ways in which the musician’s music and lyrics can be used.

Written by entertainment lawyer David McLaughlin.

Photo by Michael Mongin on Unsplash