MYOB: Protecting your music

Owning the rights to a song actually works on three levels – there’s a copyright on the lyrics, the composition and the sound recording. So if you’re a musician looking to write and produce your own music, it’s important to remember these three levels of legal protection.

This photo was shared under the Creative Commons Attribution License and was taken from the Flickr photostream of Andrea_44
This photo was shared under the Creative Commons Attribution License and was taken from the Flickr photostream of Andrea_44

Right, just so we’re clear, what do you mean by lyrics, composition and sound recording?

The lyrics to a song pretty much refer to exactly that – the words that are sung or the words that form an integral part of the song. The composition refers to the musical notation that is actually being played on an instrument. A sound recording comes into the picture, when you or someone else chooses to make a recording of the song (the song which is basically an amalgamation of the lyrics and the composition).

What categories of works do these things fall under?

Copyright protection is extended to the lyrics of a song by way of considering the lyrical content of the song, an original literary work.

The composition of a song falls under the category of musical works and so enjoys copyright protection accordingly. The Handbook of Copyright Law made available by India’s Ministry of Human Resource Development clearly states that a musical work refers to a work that consists of music, and that this includes any graphical notation of such music. Words or actions intending to be sung, spoken or acted along with the music are excluded from protection under the category of musical works.

Sound recordings are protected under copyright law, in an entirely separate and exclusive category of works. A sound recording basically refers to a recording of sounds – the recording can be made in any medium and can be of anything. In the case of music, the sound recording will refer to the recording made either by the artist or the producer – and whoever undertakes the supervision and costs of recording, will end up owning the rights to the sound recording.

So three copyrights and each copyright might have a different owner – how does that work?

So let’s say there’s this pianist who wants to write her own music. While she figures out the tune or melody of the song (which will essentially be the composition of the song), she asks her sister, a singer who dabbles in song-writing, whether she’d be interested to write lyrics to the tune. A few months after the sisters have finished writing their song (the music and the lyrics), they are introduced to a friend’s acquaintance who runs a small, but promising music label. Having liked their music, the acquaintance makes an offer to the sisters, promising to record and market the sister’s song under his label.

Now in this (extremely simplistic and optimistic example), who owns what?

a)  Technically speaking the pianist has a copyright over the composition, whereas her sister has a copyright over the lyrics of the song. However since both sisters intended for the song to be a composite whole comprising both the lyrics and the music, the sisters might be considered joint authors of the work. Essentially though, this means that no one else can reproduce, or adapt the song’s melody or lyrics without having taken the permission of the sisters.

b) The rights over the sound recording of the song belong to the Record Label, since the label undertook the costs and responsibility of recording and marketing the song. What does this mean? This means, that whenever someone wants to use the recording in a derivative work (like say, someone wants to make and record a cover of this song, or if they want to sample it, or remix it) or if they want to play it in public, then they have to take the label’s prior permission, or they face the risk of infringement.

Did you say joint authors?

Sometimes a work can have more than one author or creator. For instance, two brothers might have written a movie script, a song could have been created through the combination of one person’s lyrics and another’s music, or a company of dancers may have together choreographed a piece – in such situations, the law says that since all the parties contributed towards the creation of the work, they may all be considered authors of the work, and thus can exercise their rights over the work as joint authors of the work.

Joint authorship has a crucial role to play in discussions revolving around

(a)   Splitting profits – if the work is a huge success, and others want to buy it or take a license in order to use the work for limited purposes, then there will be royalties involved. Joint authorship entails attributing liability or taking responsibility for the implications of the work, and in authorizing or permitting others to use a work.

(b)  Incurring liability – if the work is accused of having infringed another work, then the liability or the responsibility for such an act that is the penalty, has to be shared between all authors.

(c)   Authorizing use – if say another artist wants to use the work, then its necessary to take the permission of all the authors.

Wait, what about permission again?

It’s simple really – the reason why its important to figure out who owns the rights to an element of a song is so that its easier to figure out whose permission is needed in a situation where the song is going to be put to a different use.  For instance, if you want to make a cover or remix a song, then its important to understand that before doing so, you require the permission of the copyright owners of the lyrics, the composition and the sound recording – meaning, you need the permission of the lyricist, the person who wrote the composition and the label that owns the sound recording rights.

A lot of artists tend to forget or overlook this sort of thing, leading to some very interesting and expensive problems later. In 2011, the Indian music label, Saregama India Limited, attempted to sue American music producer, Timbaland for having sampled the song Baghor Mein Bahar Hai which appeared in the 1969 Bollywood movie, Aradhana in a song titled “Put you on the Game”. While the case should have been about the legality of sampling, instead it was turned on its head because as it turned out Saregama India Limited had not been aware of the fact that it had assigned or transferred its rights over the song, to the movie producer – in other words, Saregama was trying to lay claim to something it didn’t even have the rights to! So what do we learn from a situation like this:

(a)   If producers and record labels really appreciated the fact that copyright ownership is split up, and if they truly respected the process of taking permission from the right persons, then infringement suits can be avoided entirely.

(b)  If artists and producers really understood how the rights split worked, then they would be a lot more careful about things like assigning or transferring their rights to someone else.

So, I get these rights but I can transfer them?

Yes you can – although you might have an inherent copyright in a work, it is possible for you to either sell or license the rights to someone else in exchange for some kind of payment. So if you want to buy the rights to the lyrics and the music of a song, you can – you may just have to name the right price.

Right, so in the end I need to know what?

Remember, that your lyrics, musical composition and sound recording carry separate rights. If you want to be the sole exclusive owner of a song, then ensure that you’ve made this clear with the people that you’re working with – either formally (preferably) or informally, so that you can avoid the financial and emotional mess that might come with a lawsuit. Also it’s important to remember that these 3 rights are exclusive of a separate performer’s right (something that will be discussed in another post, shortly).

So there are three basic copyrights you need to know about, if you want to make sure your song is protected, but as always things vary from one case to the next so if there’s something specific that you would like to discuss or if you have something to say about this discussion, then do go ahead and leave a comment or get in touch with me.

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10 Comments Add yours

  1. Kishore Kumar says:

    Highly informative piece…..the Araadhana song case is very interesting.. please also discuss copyright issues when performing in public with a live orchestra, whether for charity , commerce or just plain fun…all the best, Kishore,Mumbai

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    1. Manojna Yeluri says:

      Thank you Kishore and I’m glad that you found the piece interesting. Will definitely be focussing on artist rights in the context of public performances very soon. In the mean time, please do let me know if there’s anything in particular you would like to read about on this site and do stay tuned.

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  2. Sam says:

    I would like to get in touch with you

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    1. Manojna Yeluri says:

      Sure Sam, you can reach me on manojna.artistiklicense@gmail.com

      Like

  3. Interesting, but not complete advice. How a does an author, songwriter, whatever actually and legally prove ownership and/or rights of a creative piece? I understand its hugely expensive getting into court papers, attorneys, etc etc. Any advice here? Thanks.

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    1. Manojna Yeluri says:

      Thanks for your comment Patrick. Proving ownership over a creative piece can be hard, especially if it’s a popular piece that has a lot of commercial potential because then you know that there will be a lot of people making claims over the work that you’ve created. To strengthen you case, it makes sense to get your work registered which can be done on your own or through a lawyer, outside the realms of the court. While waiting for your registration to finalize, it makes sense to always document the creative process, so that you have sufficient evidence to say that the work was really yours, and born out of your creative efforts.

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      1. Patrick says:

        Thanks for the reply Manojna. I have heard that if a writer/musician mails a registered letter to him/herself in which a copy of the work in text, and in the case of music, a home recording of it, this also constitutes a form of registration. Apparently not opening the envelope is even better. I’ve also been told this is a British law but applicable in India, or at least the Indian courts will take cognizance of it.

        Is this method feasible? I’ve also been told that it costs about 20k to register each song.

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      2. Manojna Yeluri says:

        Hello again Patrick. The method that you’re referring to is often called the poor man’s copyright. Unfortunately, this is a bit of a myth as nowhere in the law, is there anything that says that registration occurs via the process of mailing oneself a copy of the work. Perhaps, in essence it aids in re-asserting copyright by acting as a step in documenting the creative process, but mailing cannot be considered a form of registration. For specific details with respect to copyright registration, you can check copyright.gov.in where there are links to forms, literature and schedules of cost, all relevant to copyright registration in India.

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      3. Patrick Ghose says:

        Thanks again!

        Like

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