James H. Craft, Big Sky Artist Services (7/19/19)
Recently there has been a lot of news regarding the involvement of some of the world’s biggest artists in copyright infringement lawsuits. Just yesterday, Katy Perry testified in court regarding her song - Dark Horse. Similarly, Ed Sheeran is in the middle of litigation regarding his song, Thinking Out Loud. Oh and please don’t even get me started on Stairway To Heaven!
These cases, and their outcomes, are very interesting and deserve the attention of every performer and songwriter. However, before one can fully appreciate the issues before these superstars, one must have a solid understanding of what copyright really is and the idea that, for musicians, there are really two types of copyright at play in every song that is written and then recorded.
What are the two types of Copyright?
The first type of copyright pertains to the protections granted to the actual composition of the song. In other words, the actual melody, lyrics and basic structure of the song. These are the properties of the song that allow you to recognize the difference between Row, Row, Row Your Boat and Purple Rain, regardless of who is singing/playing the song. This type of copyright is referred to as the PA (Performing Arts) side of copyright. Every song that is put into a tangible form (paper, notation software, video recording, voice memo, tape recording, digital recording etc.), is automatically granted the protections of PA copyright upon their creation and placement onto something tangible.
The second type of copyright relates to any Sound Recording of a composition. Logically, unlike much in government, it is called the SR (Sound Recording) copyright. This right exists only if the song is recorded in some manner and then played/performed in public. If so, then, that specific recording is protected from unauthorized use in any other recording (samples) or other media (TV, Movies, podcasts, Satellite Radio, Internet, etc.). Let’s breakdown the function of copyright in its most basic application.
Copyright in Action - I Will Always Love You
I Will Always Love You, written by Dolly Parton, has a rich history and is a perfect example of the two types of copyright. Parton wrote and recorded the song in 1973 and scored a number one single on the Billboard Country charts. As the performer and the songwriter, Parton was/is paid on both sides of the song;
- She received copyright royalty payments as the composer - (PA), paid to her through her publishing company.
- She also received copyright royalty payments for her performance, the actual recording of the song that she created - (SR), paid first to her record label and then to Parton after the label’s share is deducted.
In 1992, Whitney Houston famously made her own recording of the song, making it one of the best selling singles of all time. As a result, the copyright royalties were paid to both Parton and to Houston. Why? Because, Parton retains her rights to the PA side of the song because she is the composer of the song. Houston and her label retained the SR rights as owners of the new Sound Recording created in 1992.
- Parton was paid for every use of the song through the PA side of the copyright. That means every time that Houston’s version of the song was played in a public setting (TV, radio, videos, movies etc.) Parton and her publishing entity were paid a royalty. (Ca-ching!)
- Houston was paid copyright royalties only for the SR side of the copyright. But remember, that was only after her label took their share of the SR copyright. (SR has traditionally been the record label’s domain, but it doesn't have to be in today's market.)
- It should also be noted that there is one other significant difference here as well. As I said, Parton was paid on the PA side, receiving a royalty for every spin of this monster hit on terrestrial radio. However, in the United States, terrestrial radio is legally exempt from SR royalty payments. As a result, even though Parton got paid for all those radio spins, Houston and her label have never made a penny for any of the countless hours that her recording has been played on terrestrial radio!
How Does This Information Help the Independent Musician?
So, what is the biggest takeaway for an aspiring musician from this information? Being a singer/songwriter allows the artist to have the largest piece of the copyright pie. A singer/songwriter's compositions can produce income for years and years - even after the recording’s popularity has faded, in fact, even after singer/songwriter has passed away.
In today’s media-driven, loop-laden and sample-rich world, it is vitally important that every performer knows exactly how copyright functions. Artists should take care to protect their intellectual property and take the right steps to do so. There are many sites and information sources that can direct you on how to do so, including https://www.copyright.gov/ .
Keep in mind, registration at the Copyright Office only documents the existence of a work. To actually make money from your songs is a different story (and a topic for a future blog). It will suffice to say that this is where artist managers and entertainment lawyers can also be helpful in guiding artists through what one needs to be done to actually collect those royalties through publishing, licensing and other means.
By the way, if you didn’t already know that Dolly Parton was a shrewd businesswoman, watch this link and think about what a great decision she made when she decided not to allow Elvis Presley to record I Will Always Love You. (She would have lost millions upon millions of dollars!)