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1. NewYorkBusiness&CommercialInsight:MusicLaw
“Howdoesmyclientprotecthissongrights?”
“Canmyclientperformorrecordanothermusician’ssongand,ifso,doesheneedtogetpermission?”
The way artists use and distribute music is rapidly evolving in the digital age, so it is important to stay on top of
copyright rules to make sure your client’s work is protected and to avoid infringement issues
Safeguard Your Client’s Work:
While a “copyright” is created as soon as the work is fixed in tangible form, it is important to register works with the
Library of Congress through the U.S. Copyright Office as early as possible because registration is a legal prerequisite
to filing a copyright infringement suit in Federal Court, as well as to recovering certain remedies afforded under the
Copyright Act.
To register works electronically go to: http://copyright.gov/eco
• Use a Form PA: If the work is intended to be performed (“performing arts”).
• Use a Form SR: If the work has been recorded (“sound recordings”).
Use caution when defining a date of “publication,” if applicable, because this has a very technical meaning under the
Copyright Act and will also expose your client’s work to use by others under a compulsory license scheme (see below).
Use of Copyrighted Work Without Permission:
Generally speaking, if a third party wants to use a copyrighted work, that person must seek permission from the
copyright holder(s), or else they may be subject to liability for copyright infringement. However, there are exceptions
to this rule.
• The doctrine of fair use allows for the reproduction of a work for purposes of “criticism, comment, news reporting,
teaching, scholarship, and research” (17 U.S.C. § 107).
• The Copyright Act has several specific exemptions from copyright liability, including, for example, certain teaching
exemptions, public performances in religious settings, certain public performances without commercial advantage,
public reception of a transmission using a home-receiving apparatus, and eligible establishment transmissions
(17 U.S.C. § 110).
If Permission is Needed, Choose the Right License:
Where the fair use doctrine or one of the codified exemptions do not apply, a third party who wants to use a
copyrighted work must seek permission in the form of a “license.” Music licenses vary according to the type of user
and the type of use. Common licenses include, among others:
• Mechanical(“Compulsory”)License: This license grants the user the right to re-record and release a previously
released commercial song at an agreed-upon fee per units manufactured and sold, as established by the statutory
mechanical royalty rate (17 U.S.C. § 115). This type of license is compulsory, thus the licensee does not need to
negotiate directly with the copyright holder.
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2. • MasterUseLicense: This license grants the right to use an original sound recording in a compilation soundtrack, film
soundtrack or other audio/visual medium. The licensee must voluntarily negotiate directly with the copyright holder
of the sound recording, usually the record label or the artist.
• Synchronization(“Synch”)License: This is a license to use music in synchronization with other visual elements in a
film, video, television show, commercial or other audio/visual work. The licensee must voluntarily negotiate directly
with the copyright holder of the musical work, usually the publisher or the artist.
• PublicPerformanceLicense:This is a license to publicly perform a copyrighted musical work. This right is typically
licensed through the artist’s performing rights organization—ASCAP, BMI or SESAC—and most major venues have
blanket licenses to cover musical performances.
• DirectLicense: This license is obtained directly from the copyright owner or music publisher, and the performing
rights are paid directly to the owner/publisher by the licensee.
• GrandRightsLicense: This is a license to collect fees for use of a musical work through “dramatic” performing rights,
such as Broadway and Off-Broadway productions, operas or ballets. The licensee must voluntarily negotiate directly
with the copyright holder of the musical work, usually the composer/lyricist.
• ReprintLicense:This is a license to reprint lyrics of a cover song in liner notes for a new recording, or to reprint words
and/or music for other uses, such as a public performance. The licensee must voluntarily negotiate directly with the
copyright holder of the work to be reprinted.
Depending on the desired usage, multiple licenses may be required from multiple parties.
Recent Developments in Music Law:
In February of 2015, the U.S. Copyright Office concluded a comprehensive review of the state of music licensing with
the release of a 245-page Music Licensing Study. Broadly addressing issues surrounding fair compensation to music
creators, the efficiency of the licensing process, transparency of usage and payment information to rights owners, and
the availability of authoritative data to help market-participants identify and license sound recordings and musical works.
This Study should serve to influence Congress as new legislation is regularly being introduced to propose amendments
to the Copyright Act in order to help it conform to the digital age.
How Lexis Practice Advisor®
Resources Can Help:
1. Practice Notes provide up-to-date, practical content, including trendsetting guidance, written by attorneys who are
currently in practice. Such guidance will help you stay abreast of the latest developments and trends in music law.
2. Model forms and agreements include: Corporate Mechanical License, Master Use License, Synchronization License
(Webcast and Motion Picture), Work for Hire Agreement, Recording Contract, 360 Agreements, Distribution
Agreements and Live Performance Contracts, among others.
3. Relevant cases and codes allow for quick reference to pertinent primary law information when needed.
4. On-point articles and other secondary materials from leading brands such as Matthew Bender®
keep your
knowledge of music law current.
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