Music copyright is one of the least accessible aspects of music. I find that really frustrating, because I think music should be something everyone can easily engage with.
Here’s the reason for it: copyright law wasn’t originally designed for music, nor updated for modern music.
The result is endless jargon. Synchronization, publishing, mechanicals – none of these are self-explanatory names, but they come up constantly.
Copyright was originally made for books. Specifically, the first copyright legislation, the Statute of Anne, was made to stop people from constantly printing and reprinting books without the authors’ consent. According to the Statute, this theft was occurring “too often to the Ruin of [authors] and their Families….”
The proliferation of the printing press had made widespread copying of books a real problem. Authors weren’t getting their fair share of revenues being generated in connection with their works, and so (after several ill-advised attempts to require a license to engage in printing) copyright law was invented to deal with the issue.
That history is still with us. US copyright law protects “original works of authorship” and our Canadian Copyright Act similarly refers to the creators of original literary, dramatic, musical and artistic works as “authors.” Musicians don’t typically refer to themselves as “authors,” but according to most copyright laws everyone who creates a work subject to copyright is an author.
The US Copyright Act of 1831 explicitly extended copyright to cover musical compositions. (Canadian legal history is similar, but messier due to overlapping provincial and British laws.) We’re going to jump ahead a bit here, but today two important rights a music copyright holder has are the right to reproduce the music and the right to perform the music. The U.S. 1831 act only covered the right to reproduce music – but they weren’t talking about copying music like we do today. The first physical records were still decades away.
In the early days of music copyright, the big area of concern was sheet music and people making unauthorized copies of it. A person who printed copies of sheet music was a music publisher. And, thanks to the new copyright protections, someone now needed to secure the ‘publishing rights’ in order to make legal copies of sheet music.
And this gets us to yet another reason music copyright is hopelessly confusing – the term “music publishing” is confusing because the word “publishing” is not being used in its ordinary meaning. As a result, many musicians have no idea what publishing is, or what a music publisher does. And it’s not surprising, since calling it “publishing” did make sense 200 years ago, just not today.
Over time, new ways to copy and listen to music came to be – in particular records and radio. And copyright law started to cover not just reproducing music (in sheet form, or in physical audio form), but also the right to perform music. So the idea of music publishing eventually came to mean all the different ways someone might exploit copyright in a song. Today, a music publishing deal might have a brief clause on sheet music, but will mostly cover a much larger set of ways someone might make money off a song – like, for example, having it placed in an advertisement or movie, collecting performance royalties, or having someone else record and release a cover of it.
And this brings us to the next reason music copyright is confusing – due mostly to changes in technology, those two big copyright categories, reproduction and performance, have come to mean more and more things. Reproduction is not just limited to sheet music, but physical albums, and later digital files. Performance doesn’t just mean playing a song in person, but now it can mean things like a DJ playing a song in a club, streaming a song or playing it on the radio.
Even when terms were created to address new technology, they’ve fallen out of date. For example, the term “mechanicals” refers to royalties that are due to songwriters for the reproduction of their compositions. The name dates back to player pianos – literally mechanical versions of compositions (as opposed to written versions on sheet music). But today, the term mechanicals applies to the reproduction of digital files, vinyl records, CDs (to the extent they get made), etc.
It would be great if music copyright terms were intuitive. But unfortunately, the problem is only getting worse.
So that’s it – less a lesson than a rant. It’s not about to change, but at least now you know why!