What the &#@% is Copyright??
In the music world, one of the most common things you will hear about, discuss – and value – is the copyright in your music. Being the owner of copyright in your work (music, lyrics, artwork or recordings) gives you many very valuable rights, and consequently, the potential to earn income. It “pays” to have a good understanding of the basic principles of copyright.

Copyright is a set of rights that the law grants exclusively to owners of certain “works”. It protects the original “expression” of ideas, but unfortunately not simply ideas themselves. So you must have ‘expressed’ your idea before copyright applies, and it’s only the form that you have ‘expressed’ it in (the actual song, for example) that will be the subject of the copyright.

Just Who and What Does Copyright Protect?
Copyright applies to specific types of material. In the music industry, the relevant types are:

• Musical works (songs, you hear! It doesn’t matter what genre; country or western!)
• Literary works (written works: song lyrics, sheet music or record or CD liner notes)
• Sound recordings (any medium in which sounds, of any kind, are embodied or held)
• Artwork (record or CD covers, as well as band photos, posters or website content)
• Films (music videos, live concert footage or even interviews with bands or artists)

It’s very important to understand that whenever a ‘musical work’ is written or created, a new, separate copyright can exist in the music and the lyrics and whenever a song (with or without lyrics) is recorded in any way, a distinct, separate copyright exists in each sound recording.

So, you can see how quickly you can accumulate these valuable (copy)rights in your music!
 
Formalities
For copyright protection to exist in your “works”, you must have expressed it in a “material form” of some kind, like writing it down, recording it or storing on computer. Each must also be original, that is, not copied from another work, and a result of some skill or effort by you.

The good news is that, under the Copyright Act, copyright protection is automatic, so a piece of music, lyric or recording is subject to copyright as soon as it is written down or recorded, and you don’t have to go to the time and expense of registering your copyright in Australia.

Having said that, as a practical matter, it is recommenced that you mark your work (including draft manuscripts or recordings) with a copyright symbol ©, your name and the year the work was created, to put others on notice that you own the copyright, and to have your copyright recognised at an international level (In some countries, registration is required, but only for a work created in those countries). It can also help you prove the ownership of your copyright.

For example: © The Artist Or Band 2005 (or 2004-2005 if it is created over a period of time)

For sound recordings, the same applies, but the practice is to have a copyright notice with the letter “P” in a circle, or brackets, followed by the name of the copyright owner and the year.

Owners of Copyright
Music and Lyrics
Sorting out the owners of copyright can be tricky when considering the copyright in music.

The general rule is that the “author” or (‘creator’) of a work is the first copyright owner. This will be the composer of music, or the author of lyrics (the creator of the work, in both cases).

However, keep in mind the following variations to this general rule:

• If you create music or lyrics as part of your employment, your employer will be the owner, unless you have an agreement with your employer to the contrary;
• In a similar way, the government generally owns copyright in works made for it; and
• You can agree with somebody, by written agreement, about who owns the copyright (e.g. if you are “commissioned” to create music, then the person commissioning you will only own the copyright if you agree to assign it to them in a written agreement).

If several people are involved in creating the work, like members of a band, collaborating on music and lyrics, then depending on any written agreement, there will be a number of owners of copyright, each with a share. For more info see the “Song Writing and Song Rights” page.

Sound Recording
Generally, the owner of copyright in a sound recording is the person who owns the relevant recording medium – a cassette, analogue tape or the computer on which the recording is made. However, if a person pays for a sound recording to be made, they will usually be the first owner of the copyright. For example, if you and your band pay a studio to record a demo tape, then the members of your band would together own copyright in the sound recording.

Equally, if a record label or an “investor” pays for the recording, they will own the copyright.

For this reason, it is very important to properly consider who will own the copyright if you are creating music, recordings or other works. A good rule of thumb is to put it in a written agreement. And, remember, copyright doesn’t protect ideas – so if a person gives you an idea for a melody or song, but doesn’t create it, that person may have no claim to copyright in the song.

Note that as a result of the recent Australia/US Free Trade Agreement, there are changes to the Copyright Act, implemented by the US Free Trade Agreement Implementation Act 2004, which came into effect on 1 January 2005. Under the amendments, in certain cases, the ownership of copyright in a sound recording will be shared between the performer and the person who owns the recording medium (see “Performer’s Rights”). However, in practice, if a recording of a performance is made for a fee, the performer will have no rights.

Rights - Right On!
Copyright owners have the exclusive right to do a number of things in respect of the “work”:

• Reproduce it (such as, recording it, burning a CD copy or photocopying sheet music);
• Perform it in public (performing it live at a concert or pub or playing a recording of it);
• Communicate it to the public (broadcasting or transmitting it on radio or internet);
• Publish it (making it available to the public for the first time, in any format); and
• Make an adaptation of it (translating lyrics or arranging or re-arranging a song)

Moral Rights
Recently, the Copyright Act recognised a group of “moral rights”. These are the rights to:

• be attributed or credited correctly as the creator of a copyright “work”;
• prevent the “work” being falsely attributed as the work of another person;
• prevent it being treated in a way that is derogatory, or damages your reputation

These rights are not assignable or ‘licensable’, so they can’t really be used to create income. They are separate from copyright and impose obligations on anybody who uses a copyright “work” to credit the creator, and not debase an original piece. They can only be overcome if you provide written consent to any act that would otherwise be contrary to your moral rights.

An overview of moral rights and information on how to approach someone you think has infringed your moral rights is available from the Arts Law Centre of Australia.

How Long Does Copyright Last?
Copyright for musical works and lyrics generally lasts from the time the work is made until 50 years after the composer’s or writer’s death, or if the music was never “published” (made public) in the person’s lifetime, 50 years after the year it was first published, performed or broadcast. Copyright for sounds recordings lasts 50 years from the first year of publication.

As of 1 January 2005, under the US Free Trade Agreement amendments mentioned above, copyright will last 70 years after the death of the author or 70 years from first publication. This only applies to copyright created after that date - existing copyright stays at 50 years.

When the period of copyright protection ends, the material enters the ‘public domain’ and the copyright owner’s exclusive rights cease - anyone is able to use it. Check your dates first, eh?

Assigning and Licensing Copyright
As the copyright owner, you can assign your copyright “rights” to someone else. You may often be asked to do this. It means the other person becomes the owner of the relevant rights. It’s more or less the same as selling your copyright, like you might sell anything else. SOLD!

You may also be asked to license some or all of the rights in your work. This is very different from an ‘assignment’, as you will remain the owner of your copyright, but the other person is permitted to use, or deal with, the work in the way, and for the extent of time, that you agree.

To be effective, assignments or licenses must be in writing and signed by a copyright owner.

Infringement
Copyright prevents others from doing what the copyright owner has the exclusive right to do, unless they hold a written license to do it. Copyright in a work will be “infringed” if someone uses your work in one of the ways that is exclusive to you, without your written permission. As with moral rights (see above), the Arts Law Centre also has an Info Sheet on how to best approach someone you think has infringed your copyright.

A ‘substantial part’ of a work must be used in order to infringe copyright. “Case law” states that a part that is important, distinctive or essential may be ‘substantial’. This will always depend on the circumstances!

Be aware that there are certain exceptions for ‘fair dealing’ under the Copyright Act, which allow the use of copyright material for your research or study, and for criticism and review. The Australian Copyright Council has an information sheet on ‘fair dealing’.

Sampling
Sampling of recorded music has of course become increasingly common in music culture. It occurs when a musician or producer takes a sound or series of sounds from its original context and incorporates it into a new song. Sampling can potentially infringe copyright.

Even if a sample from another piece is very short, it may be a “substantial part” of a song (i.e. an important or distinctive part of the original). As a practical matter, you should clear any use of sampled material with the relevant copyright owner to avoid risking an infringement.

If you suspect that your work may have been “infringed”, or you are concerned that certain actions you take may infringe another owner’s copyright, you should seek legal advice, or have a look at Arts Law Centre's article on sampling, or their article on DJ-ing.

Performer’s Rights
In addition to copyright, performers have a right to consent to their performance being audio recorded, filmed, video recorded and broadcast, and to consent to an audio recording being used with visual footage. There is more info on this under “Performing and Promoters”.

Further Information and Advice
The Australian Copyright Council (or ACC) publishes all sorts of information sheets (and other materials) on copyright matters including many that deal specifically with copyright and music (use "Find An Answer").

Arts Law Centre of Australia offers general legal advice through its telephone advice service and document review service, and it publishes lots of info on copyright. In particular, check out:

What the &#@% is Copyright??
In the music world, one of the most common things you will hear about, discuss – and value – is the copyright in your music. Being the owner of copyright in your work (music, lyrics, artwork or recordings) gives you many very valuable rights, and consequently, the potential to earn income. It “pays” to have a good understanding of the basic principles of copyright.

Copyright is a set of rights that the law grants exclusively to owners of certain “works”. It protects the original “expression” of ideas, but unfortunately not simply ideas themselves. So you must have ‘expressed’ your idea before copyright applies, and it’s only the form that you have ‘expressed’ it in (the actual song, for example) that will be the subject of the copyright.

Just Who and What Does Copyright Protect?
Copyright applies to specific types of material. In the music industry, the relevant types are:

• Musical works (songs, you hear! It doesn’t matter what genre; country or western!)
• Literary works (written works: song lyrics, sheet music or record or CD liner notes)
• Sound recordings (any medium in which sounds, of any kind, are embodied or held)
• Artwork (record or CD covers, as well as band photos, posters or website content)
• Films (music videos, live concert footage or even interviews with bands or artists)

It’s very important to understand that whenever a ‘musical work’ is written or created, a new, separate copyright can exist in the music and the lyrics and whenever a song (with or without lyrics) is recorded in any way, a distinct, separate copyright exists in each sound recording.

So, you can see how quickly you can accumulate these valuable (copy)rights in your music!
 
Formalities
For copyright protection to exist in your “works”, you must have expressed it in a “material form” of some kind, like writing it down, recording it or storing on computer. Each must also be original, that is, not copied from another work, and a result of some skill or effort by you.

The good news is that, under the Copyright Act, copyright protection is automatic, so a piece of music, lyric or recording is subject to copyright as soon as it is written down or recorded, and you don’t have to go to the time and expense of registering your copyright in Australia.

Having said that, as a practical matter, it is recommenced that you mark your work (including draft manuscripts or recordings) with a copyright symbol ©, your name and the year the work was created, to put others on notice that you own the copyright, and to have your copyright recognised at an international level (In some countries, registration is required, but only for a work created in those countries). It can also help you prove the ownership of your copyright.

For example: © The Artist Or Band 2005 (or 2004-2005 if it is created over a period of time)

For sound recordings, the same applies, but the practice is to have a copyright notice with the letter “P” in a circle, or brackets, followed by the name of the copyright owner and the year.

Owners of Copyright
Music and Lyrics
Sorting out the owners of copyright can be tricky when considering the copyright in music.

The general rule is that the “author” or (‘creator’) of a work is the first copyright owner. This will be the composer of music, or the author of lyrics (the creator of the work, in both cases).

However, keep in mind the following variations to this general rule:

• If you create music or lyrics as part of your employment, your employer will be the owner, unless you have an agreement with your employer to the contrary;
• In a similar way, the government generally owns copyright in works made for it; and
• You can agree with somebody, by written agreement, about who owns the copyright (e.g. if you are “commissioned” to create music, then the person commissioning you will only own the copyright if you agree to assign it to them in a written agreement).

If several people are involved in creating the work, like members of a band, collaborating on music and lyrics, then depending on any written agreement, there will be a number of owners of copyright, each with a share. For more info see the “Song Writing and Song Rights” page.

Sound Recording
Generally, the owner of copyright in a sound recording is the person who owns the relevant recording medium – a cassette, analogue tape or the computer on which the recording is made. However, if a person pays for a sound recording to be made, they will usually be the first owner of the copyright. For example, if you and your band pay a studio to record a demo tape, then the members of your band would together own copyright in the sound recording.

Equally, if a record label or an “investor” pays for the recording, they will own the copyright.

For this reason, it is very important to properly consider who will own the copyright if you are creating music, recordings or other works. A good rule of thumb is to put it in a written agreement. And, remember, copyright doesn’t protect ideas – so if a person gives you an idea for a melody or song, but doesn’t create it, that person may have no claim to copyright in the song.

Note that as a result of the recent Australia/US Free Trade Agreement, there are changes to the Copyright Act, implemented by the US Free Trade Agreement Implementation Act 2004, which came into effect on 1 January 2005. Under the amendments, in certain cases, the ownership of copyright in a sound recording will be shared between the performer and the person who owns the recording medium (see “Performer’s Rights”). However, in practice, if a recording of a performance is made for a fee, the performer will have no rights.

Rights - Right On!
Copyright owners have the exclusive right to do a number of things in respect of the “work”:

• Reproduce it (such as, recording it, burning a CD copy or photocopying sheet music);
• Perform it in public (performing it live at a concert or pub or playing a recording of it);
• Communicate it to the public (broadcasting or transmitting it on radio or internet);
• Publish it (making it available to the public for the first time, in any format); and
• Make an adaptation of it (translating lyrics or arranging or re-arranging a song)

Moral Rights
Recently, the Copyright Act recognised a group of “moral rights”. These are the rights to:

• be attributed or credited correctly as the creator of a copyright “work”;
• prevent the “work” being falsely attributed as the work of another person;
• prevent it being treated in a way that is derogatory, or damages your reputation

These rights are not assignable or ‘licensable’, so they can’t really be used to create income. They are separate from copyright and impose obligations on anybody who uses a copyright “work” to credit the creator, and not debase an original piece. They can only be overcome if you provide written consent to any act that would otherwise be contrary to your moral rights.

An overview of moral rights and information on how to approach someone you think has infringed your moral rights is available from the Arts Law Centre of Australia.

How Long Does Copyright Last?
Copyright for musical works and lyrics generally lasts from the time the work is made until 50 years after the composer’s or writer’s death, or if the music was never “published” (made public) in the person’s lifetime, 50 years after the year it was first published, performed or broadcast. Copyright for sounds recordings lasts 50 years from the first year of publication.

As of 1 January 2005, under the US Free Trade Agreement amendments mentioned above, copyright will last 70 years after the death of the author or 70 years from first publication. This only applies to copyright created after that date - existing copyright stays at 50 years.

When the period of copyright protection ends, the material enters the ‘public domain’ and the copyright owner’s exclusive rights cease - anyone is able to use it. Check your dates first, eh?

Assigning and Licensing Copyright
As the copyright owner, you can assign your copyright “rights” to someone else. You may often be asked to do this. It means the other person becomes the owner of the relevant rights. It’s more or less the same as selling your copyright, like you might sell anything else. SOLD!

You may also be asked to license some or all of the rights in your work. This is very different from an ‘assignment’, as you will remain the owner of your copyright, but the other person is permitted to use, or deal with, the work in the way, and for the extent of time, that you agree.

To be effective, assignments or licenses must be in writing and signed by a copyright owner.

Infringement
Copyright prevents others from doing what the copyright owner has the exclusive right to do, unless they hold a written license to do it. Copyright in a work will be “infringed” if someone uses your work in one of the ways that is exclusive to you, without your written permission. As with moral rights (see above), the Arts Law Centre also has an Info Sheet on how to best approach someone you think has infringed your copyright.

A ‘substantial part’ of a work must be used in order to infringe copyright. “Case law” states that a part that is important, distinctive or essential may be ‘substantial’. This will always depend on the circumstances!

Be aware that there are certain exceptions for ‘fair dealing’ under the Copyright Act, which allow the use of copyright material for your research or study, and for criticism and review. The Australian Copyright Council has an information sheet on ‘fair dealing’.

Sampling
Sampling of recorded music has of course become increasingly common in music culture. It occurs when a musician or producer takes a sound or series of sounds from its original context and incorporates it into a new song. Sampling can potentially infringe copyright.

Even if a sample from another piece is very short, it may be a “substantial part” of a song (i.e. an important or distinctive part of the original). As a practical matter, you should clear any use of sampled material with the relevant copyright owner to avoid risking an infringement.

If you suspect that your work may have been “infringed”, or you are concerned that certain actions you take may infringe another owner’s copyright, you should seek legal advice, or have a look at Arts Law Centre's article on sampling, or their article on DJ-ing.

Performer’s Rights
In addition to copyright, performers have a right to consent to their performance being audio recorded, filmed, video recorded and broadcast, and to consent to an audio recording being used with visual footage. There is more info on this under “Performing and Promoters”.

Further Information and Advice
The Australian Copyright Council (or ACC) publishes all sorts of information sheets (and other materials) on copyright matters including many that deal specifically with copyright and music (use "Find An Answer").

Arts Law Centre of Australia offers general legal advice through its telephone advice service and document review service, and it publishes lots of info on copyright. In particular, check out: