Thursday, September 20th 2018

Musical Copyright, Sampling or Stealing?

A recent list on the comedy site, The 5 Most Famous Musicians Who Are Thieving Bastards, got me thinking about copyright law as it applies to music.  Clearly copyright law is an interest of mine.  However, to me copyrighting music presents unique challenges.  While lyric stealing can seem a little more cut and dry, there are only 12 notes in the musical scales; when does similarity cross the line into outright thievery?  Almost everyone has heard about the legal implications of sampling, the direct use of musical clips in other works.  Several lawsuits have seemingly curbed unauthorized sampling, at least in major label and more mainstream releases.  But what about music that was clearly inspired by other works at the very least?  What is the legal recourse for the musical victims in these cases?

Unfortunately for some, it is very difficult to differentiate similarity from outright stealing in cases where the musical chord progression is reminiscent of other works.  The limited number of notes and musical time measures, combined with a rich tradition of musicians using basic riffs pioneered by other artists, means that unless the piece is sampled or the lyrics are stolen there is little legal recourse.  In these cases though, music copyright is clear.  When music is copyrighted two different copyrights are acquired; composition and recording.  Composition is the piece as written.  If anyone wants to cover a song this is the copyright that protects the lyrics, melody etc. of a song.  When a song is recorded the label has a recording copyright that protects their investment, i.e. the money they paid to have the track recorded in a studio, in the piece. When someone wants to use a song in a commercial, movie or anything they need to license the song from the both the artist(s) who created it and the studio that paid to record the track.  The difference between these two licenses is best explained by Nike’s issues with using the Beatles’ song Revolution in an ad campaign.  They licensed the song from the owner of the composition rights, Michael Jackson, and created and aired the commercial.  However, Capital Records owned the recording rights and successfully sued them for copyright infringement.

The owners of these copyrights, as well as the pieces themselves, are protected in several ways.  There are five basic rights that are covered by these copyrights.  The first is the right to control reproduction of their work.  This includes printing sheet music and reproducing the track on a CD. The next is the right to control derivations, or anytime the music is used in a way other than its original intended form.  This includes film, commercials and television.  The next is the right to control distribution.  This gives the copyright owner control over how the music is sold and traded.  There are several key exceptions to this right; they are why people can’t be sued for selling and buying used CDs as well as giving them away as gifts.  There is also the right to control public performance.  This protects any public performance, be it radio or cover band in a bar.  Licenses are granted to performers, venues and stations that give the right to play, perform and present copyrighted music.  Generally the musicians unions guarantee compliance.  This right is one that almost exclusively is in place to protect the composition copyright; the holder of the recording copyright has public performance right.  Finally, the copyright holder has the right to control public display.  This is a right that generally applies to things like paintings and sculptures so it does not protect the holders of music copyrights.

These copyright issues may seem confusing and excessive, but they are in place to protect the artists who created the song and the companies who made it possible for the artists to record their creation via a monetary investment.  In cases like the above examples from it is up to the individual artists to bring claims to court.  In an interesting example of copyright issues, the article originally included clips that played the song examples side by side so the reader could hear the similarities in the songs, but those clips have since been removed.  Some song thefts seem more blatant than others and likely have a good chance in court.  However, the offended artists are responsible for protecting themselves in these cases.  The music fans are only responsible for choosing whether or not to support thieves.

Posted by Becky on June 8, 2010 at 4:53pm.

One Response to “Musical Copyright, Sampling or Stealing?”

  1. [...] LegalFish: The Daily Tackle Law, News, and Opinion « Musical Copyright, Sampling or Stealing? [...]

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