First Principles: Musical Composition v. Sound Recordings
If there is one thing you take away from any seminar on Music Law it should be this: for every song you hear on the radio, there are two copyrights implicated: (1) the musical composition, i.e., the underlying notes and lyrics, and (2) the sound recording, i.e., the recording artist’s rendition of the composition. Everything that follows is based on this dichotomy.
The copyrights in a musical composition (sometimes called a “musical work”) are typically owned or controlled by the songwriter and her music publisher. There may (in fact, these days there usually are) more than one copyright owner of the musical composition. The copyrights in the sound recording are typically owned and controlled by a record label.
As we will discuss in greater detail next week, the Copyright Act gives copyright owners certain exclusive rights. For our purposes, we will focus on the exclusive right to
- to reproduce the copyrighted work;
- to prepare derivative works based upon the copyrighted work;
- to distribute copies or phonorecords of the copyrighted work;
- to perform the copyrighted work publicly;
- …; and
- in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission. [1: 17 U.S.C. § 106.]
Each of these exclusive rights exists independently of the others; i.e., a copyright owner of a musical composition can grant a license to reproduce the work but not publicly perform it.
For those who want to use copyrighted music, the licenses or permissions needed depend on the nature and scope of the proposed use. For example, a terrestrial radio broadcaster only requires a license from the owners of the musical compositions it publicly performs; the terrestrial radio broadcaster does not require any license from the owner of the sound recordings it performs. On the other hand, an Internet radio broadcaster requires both a license from the owners of the musical compositions it publicly performs and from the owners of the sound recordings it publicly performs by means of a digital audio transmission. This is true even if the same entity is broadcasting the same music over the air and over the Internet.
Take for example, the classic Jimi Hendrix hit “All Along the Watchtower.”
Although Hendrix made if famous [2: it was the highest charting single of Hendrix’ career, reaching No. 20 on the Billboard chart—the only song by Hendrix to break the Top 40.], the musical composition was written by Bob Dylan and published by his publishing company, Dwarf Music, which is now administered by Sony / ATV Music Publishing.
Hendrix, who also produced the recording, recorded the song for Reprise Records [3: Reprise was started by Frank Sinatra and is now owned by Warner Music Group], who owns the rights in the sound recording.
There are many other examples of recording artists who made singer songwriters’ musical compositions famous. Dolly Parton wrote (and recorded) the song “I Will Always Love You” but Whitney Houston made it famous.
My personal favorite example, however, is Susan Boyle.
The Susan Boyle Example
Though Boyle didn’t win the show, she did receive a recording contract with Britain Got’s Talent-creator Simon Cowell’s SYCO Music, a joint venture with Sony Music Entertainment. In 2009, SYCO released Boyle’s debut album I Dreamed a Dream, which went on to sell 9 million copies.
The first single on her 2009 debut album I Dreamed a Dream for Syco Music, Simon Cowell’s entertainment company, distributed by Columbia, a Sony Music Entertainment sub-label, was Wild Horses one of Rolling Stone magazine’s 500 Greatest Songs of All Time.
The song was originally recorded by The Rolling Stones on their 1971 album Sticky Fingers for Rolling Stones Records, originally distributed by Atlantic Records, now a Warner Music Group sub-label, though in 1994 it was remastered and reissued by Virgin Records, now a EMI sub-label, and then in 2009 re-remastered and re-reissued by Universal Music Enterprises, the catalog division of Universal Music Group, which bought EMI Records in 2012.
The underlying musical composition Wild Horses was written, as are almost all the songs recorded by the Stones, by Mick Jagger and Keith Richards. Jagger and Richards assigned their rights in that song to their music publishing company ABKCO Music, Inc. ABKCO (commonly thought to be an acronym for “Allen & Betty Klein and Company”) was a powerhouse artist management firm and publishing company in the 1960s and early 70s. In addition to the Stones, ABKCO controlled the early catalog of The Beatles (see what purports to be the original contract between ABKCO and The Beatles here), until The Beatles left in the early 70s, resulting in a lawsuit by ABKCO. The first page of the musical composition appears below.
To understand the distinction between the sound recording and the underlying musical composition, consider what had to be licensed and who got paid based on Susan Boyle’s recording of Jagger and Richard’s song Wild Horses.
- License 1 – Reproduction of Musical Composition: Susan Boyle doesn’t need to obtain permission from Jagger or Richards or from ABKCO to re-record the composition. Under § 115 of the Copyright Act, because The Stones had distributed its recording of the composition in 1971, Boyle was free to obtain a compulsory license from ABKCO, subject to paying the statutory reproduction royalty, which is currently $0.091 per reproduction.
- License 1(a) – Reproduction of Musical Composition (as synchronized with visual work): SYCO made a video of Susan Boyle’s rendition of Wild Horses, for which SYCO would have to secure a reproduction license for synchronizing (or “synching”) the visuals with the recorded version of the musical work.
- License 2 – Reproduction of Sound Recording: Susan Boyle doesn’t need to obtain permission from Rolling Stone Records, Atlantic, Warner, Virgin, EMI or Universal. As we’ll see in the next lecture, under § 114 of the Copyright Act, the exclusive right in a sound recording is limited to that sound recording and not to other recordings of the underlying work—even if those recordings sound like the original (not that I’m suggesting Boyle’s version sounded like the Stones—it didn’t).[4: In addition, sound recordings were not protected by Copyright until 1972, so the Stones’ sound recording of Wild Horses isn’t recognized under Copyright, which raises some interesting issues when we get to the public performance of sound recordings via digital audio transmissions (i.e., Pandora), because one doesn’t have to pay a public performance fee for pre-1972 sound recordings because that pre-72 sound recording doesn’t “exist” for Copyright purposes.]
- Royalty 3 – Distribution of the Musical Composition: ABKCO and Jagger/Richards both received their portion of the $0.091 per copy of Susan Boyle’s recording sold; i.e., for each download of the digital single or the entire digital album, ABKCO and Jagger/Richards were paid (collectively) $0.091. These royalties are typically collected through The Harry Fox Agency for physical sales and from the record labels for digital sales, where the record labels receive the money directly from the digital store like iTunes.
- Royalty 4 – Distribution of Sound Recording: None of Rolling Stone Records, Atlantic, Warner, Virgin, EMI or Universal got paid anything for Susan Boyle’s recording of the song, because Boyle’s version did not implicate their exclusive rights in their sound recordings.
- Royalty 5 – Public Performance of Musical Composition: ABKCO and Jagger/Richards both receive their portion of the public performance royalties collected by BMI for the public performance of Susan Boyle’s version. ABKCO and Jagger/Richards are compensated for the public performance of the composition regardless of the medium in which that public performance is transmitted; e.g., broadcast television, broadcast radio, satellite radio, Internet radio, or inside a restaurant or retail store via a commercial music service.[5:Each writer and publisher is only allowed to associate a particular work with 1 performing rights society. In this case, Wild Horses is associated with BMI, so no royalties collected by ASCAP or SESAC would be payable to Jagger/Richards or ABKCO for that same work.]
- Royalty 6 – Public Performance of Sound Recording on Broadcast Radio: None of Syco Records, Rolling Stone Records, Atlantic, Warner, Virgin, EMI or Universal got paid anything for Susan Boyle’s recording of the song or its subsequent play on radio because the Copyright Act’s grant of rights of public performance of sound recordings is limited to digital audio transmissions.*
- Royalty 7 – Public Performance of Sound Recording on Internet Radio (i.e., digital transmission): Syco Records received $0.0020 per stream per listener for every public performance by digital audio transmission. For example, for every person who listens to Boyle’s version on their Pandora station, Pandora pays $0.0020. If 1,000 listeners each listen to Boyle’s version, then Pandora pays $2.00. These royalties are typically collected by SoundExchange.
Recently, someone felt compelled to try to graphically represent the flow of music rights and corresponding royalties for the U.K. Another enterprising someone tried to graphically represent the same flow of rights and royalties in the U.S.
As the two above representations demonstrate, music law is either somewhat complicated or really, really complicated, depending on into how much detail one wants to delve. In the remainder of this semester, we’ll generally try to stay at just the “somewhat complicated” level, though at times we’ll have to venture into the land of “really, really complicated.” Enjoy…
Ring of Fire (Social Distortion)
Ring of Fire (Johnny Cash)