Music & Copyright
Of all the forms of copyright protected works, music is perhaps the most restricted and licensed. Since music was first broadcast on radio, a vast mechanism for licensing music has emerged from the opposing forces of the recording industry and the radio and TV broadcasting industries. Today, licensing published music is handled nearly exclusively by a few agencies. See Getting Permission for more information about these agencies.
One of the common issues that come up in music and copyright is whether permission or a license is needed to play music. Starting with the most private and simple of circumstances, you do not need a license to play music in your home for your personal enjoyment. 1 You’ve already paid for the CD. You may play it at home or in your car for your personal enjoyment as much as you wish. You may also play your radio in your home and in your car without a license. The radio station already has a “blanket” license to broadcast the music you enjoy for free on your radio. As long as you and a few family members or friends are the only people listening to the music you play, you do not need permission or a license to play music. It is only when the music you play is heard in public that the legal necessity for a license arises.
The right to perform or play a song in public is one of the exclusive rights of the copyright holder. You will need to get permission or a license if you play music in public unless the music is in the Public Domain or the use of the music qualifies as fair use. But the line between what is private and what is public is complicated. Prior to the Music Licensing Act in 1998 2 , some court cases have drawn the line and declared public uses of music to be copyright infringement unless licensed, as follows:
- Radio stations, bars, night clubs, and juke box operators; 3
- Hotels that play the radio for guests through speakers or headphones; 4
- Restaurants; 5
- Stores; 6
- Telephone intercom systems that play music while callers are on hold. 7
Now the Music Licensing Act 8 draws the line between private and public in terms of the type of public establishment, the size, and the stereo equipment used. Restaurants and bars under 3,750 square feet or retail establishments under 2,000 square feet are exempt from paying fees for playing radio or TV broadcasts for their customers. Public places of any size that play radio or TV broadcasts are exempt from paying fees if they use no more than six external speakers (not more than four speakers in each room) for playing music. Public places that play CDs or hire live musicians (that play cover songs or copy songs) are still subject to being licensed for fees.
You can lose the private home exemption and be subject to a license if you charge anyone admission fees to listen to music. 9
The Music Licensing rules also generally apply to using music in the classroom. There’s no question that performing music in class is a public performance. However, music in the classroom may have an exemption from licensing in three ways. If music is played on a special website as part of distance education and otherwise complies with all prerequisites under the TEACH Act, then it will be exempt from the requirement of getting permission or paying licensing fees. If music is played live in class for the purpose of education or research, it may be exempt from permission and license fees as fair use. A majority of the four factors of fair use would have to favor fair use so music may have to be edited so that entire songs are not played.
If music selection is not important, you may simply bring a radio to class and tune in your university’s radio station. You should first determine if your university’s radio broadcast license allows public performance of the broadcast in a classroom. See Getting Permission. You can also use without permission any music with expired copyrights or music that has been donated to the Public Domain. See Public Domain and Public Domain Resources. Music Makers, Composers, Researchers, and Teachers: Making or Using Music in Education
For musicians who write or compose original music, the copyright laws work automatically to protect their work. Not only is original music protected by a musician’s copyright, the musician may use his or her music in any way in education. Popular recorded music must be either licensed or performed in a way that satisfies the highly complex fair use exemption in order to be used effectively in the classroom or research, or as a public performance. Use of original music by the composer is free from all copyright and license problems.
Copyright protection is automatic and requires no formality. However, there are good reasons to register copyrights to music above and beyond copyright protection. Original artists should consider registering their music before they send copies of their work to recording labels and “shop” for a label. Registration offers many benefits in legal strategy for any artist that must enforce or defend their copyrights in court. Besides opening the door to filing your own law suit against someone you suspect has infringed or plagiarized your music, you also are able to recover your attorney’s fees in most instances. See What is not required. Perhaps the best advantage to registering copyrights in music is documenting the point in time that your music was composed.
In the vast majority of music plagiarism cases, the issue is who wrote the song first. Technically, the issues of access to the copied song and substantial similarity must be found in the copyright owner’s favor to win an infringement lawsuit. But this often boils down to ‘who wrote the song first?’ Registering your music makes a legal presumption that the song existed as you wrote it at the time you registered it. Registration is obtained easily online, and inexpensively by visiting the U.S. Copyright Office website at www.copyright.gov/forms.
For music copyright registration, you should read the instructions for “Form PA.” They also have a short form that may be easier. Remember that many songs can be registered as a collection for a single registration fee. Simply print out and complete your form, attach a copy of the music (cassette, CD, or music score), and deposit in the mail.
Composing a song that is substantially similar to another song you have heard and representing to others that it is your original work is considered plagiarism. It can also be copyright infringement. The motive in documented music plagiarism can range from the subconsciously innocent to the callous indifferent to the notoriously defiant. At the least offensive end of the spectrum, most notably in George Harrison’s “My Sweet Lord,” plagiarism is claimed to be innocent or committed in the subconscious. In other words, Harrison swears he thought his song was an original song.
At the other end of the spectrum, you have the defiant song plundering and ridiculing by rap group 2 Live Crew. They wanted to make fun at the expense of Roy Oribison’s “Pretty Woman.” They asked for permission to use the song and despite permission being refused, they published a somewhat obscene “parody” of the song and exploited it commercially in a nationally distributed album. Copyright law applies to these matters in curious ways because George Harrison lost his copyright infringement case while 2 Live Crew won theirs. But 2 Live Crew’s version of another song is not considered plagiarism. They never represented that they wrote the original song.
In many of the court cases involving music and fair use, the use of music successfully as fair use has been music that is a “parody” of other music. See Parodies in Special Fair Use Cases. The legal analysis that best describes this can be found in the most recent U.S. Supreme Court case on fair use and music, Campbell vs. Acuff-Rose Music. 10
With the popularity of hip hop and rap music, the legality of music sampling has risen. Most musicians are well acquainted with the sampling process. For the uninitiated, the process can be described as the digital copying of, usually, a minute portion of another popular copyrighted song. Sampling can involve several seconds of a song or only a small “riff” or sequence of notes or sung words. In some cases artists who publish samples in their music have obtained written permission or a license to sample a song by the copyright owner of the sampled song. In more cases, permission is not obtained. As a recent court opinion observes, where you “stand” on the copyright issues of this practice often depends on where you “sit.” Artists whose songs are being sampled without permission generally condemn the practice, while artists who sample music without permission defend it. After many years of legal skirmishing, the first court opinion has been published as a first impression analysis of sampling.
The court’s analysis is somewhat complex but concludes that no sampling can be made without a license or permission. 11 The reason is not because of the copyright to the music composition in the sample, but because of the copyright to the sound recording. The court interprets the copyright statute, 17 USC Section 114, as prohibiting the copying of the whole or any part of a sound recording. The new ruling reasons that you should either pay for a license to sample a song with the original sound recording, or go into the studio yourself and recreate the sample with your own sound recording.
For many hip hop and rap musicians, the point of sampling a song is precisely to copy the sound recording of a well known song to give their song a certain feel or emphasis. The intent is to link their song in this manner to the earlier song in the listener’s mind. Most would not consider trying to reproduce the sound independently because it wouldn’t have the same feel. The Bridgeport Music opinion now clarifies that samples of original recordings must be licensed.
Music that Can be Used in Education Without Permission or License.
Summarizing, music can be played in the classroom if:
- it is an original composition and you are either the composer or have the composer’s permission;
- the music is popular recorded music and you have the permission of the publishers;
- if the music is used in distance education and you comply with all the requirements of the TEACH Act;
- the music qualifies under the highly complex fair use exemption; or
- the copyright to the music has expired or it has been donated to the Public Domain.