There’s a worrisome trend out there, where even established songwriters are being challenged to prove their new song doesn’t infringe on someone else’s existing work. While this is a good thing in general—and totally warranted at times—juries and courts are not infallible.
If taken too far, just one court’s ruling can create a precedent that puts some serious constraints on songwriters everywhere to express any original thought without being accused of plagiarism. Remember, we have just 12 notes in an octave and the thousands of songs already written make it nearly impossible to write something that is purely 100% original. At best, we build on what came before us and strive to tell our own story in our own unique voice.
Many songwriters routinely question whether an idea for a song or melody is their’s alone or something they may have heard somewhere before.
Quite often it’s a mix of both but there’s always been a line between drawing on musical influences and being an outright copycat.
It comes down to your intent and that’s something that can be difficult to prove.
Is it possible that your song will be stolen or that you yourself will be accused of stealing an existing melody, beat, or lyric?
Protecting your music and getting proper recognition is something many of us are interested in doing but copyright laws and music royalties have always been confusing. The music industry and the individual artist must both continue to evolve while trying to keep pace with the technology, disruptive innovations, and the marketplace.
These changes have allowed more and more independent artists to self-publish their own work but this also means more music being released with less guidance or legal representation. It’s not just about proper credit but collecting potential revenue to fund your art.
With digital streaming as the dominant format for listening to music, songwriters are now getting paid percentages of a penny per stream. While some don't intend to make a living off of their music, revenue for most musicians has dwindled.
Put it all together and I would argue that it's more important than ever to understand what you're entitled to as a songwriter and make informed decisions about pursuing your passion for music-making while also protecting and even monetizing your hard work.
You might be perfectly happy to share your new song with the world and may not care about receiving any recognition for it. But music is still a business for many people. If you consider yourself to be one of them—or aspire to become one of them—you should be willing to invest a little in yourself and your music to protect your rights as an artist and benefit from both current and new forms of income as they arise.
I've written here before about the many bad answers to good questions about music-making. While I'm certainly not an entertainment lawyer, I'd like to offer my take on one question in particular, along with a few related things, in the hope it will help you release your music and encourage you to research your own questions to make better decisions that suit your musical goals.
"Do I really need a copyright if I just mail myself a copy of the song instead?"
Bad Answer: A sealed envelope with the date stamped on it proves you wrote the song first!
Not really. The "poor man's copyright" will almost never hold up in court. The same goes for taking a screenshot of the audio files on your hard drive or saving that email you sent to a friend or bandmate to capture the date and time.
Good Answer: Most importantly, understand that as soon as you've written your new song and have it in some fixed form, you already own the copyright to your song. It's yours. Try to keep it that way.
register with the U.S. Library of Congress
For a new song with a single songwriter (you), this is easily done by filling out an online form at https://www.copyright.gov/registration and paying the current fee of $35, here in August 2019.
Again, you are NOT paying to copyright your song—you're paying to legally register your copyright as the songwriter. Within about six months or so, you'll receive a written letter via snail mail that serves as your "receipt" that your work has been filed and is now on record as such. An electronic version is also made available under your online account. Know that there are different forms for songs with multiple writers, groups of songs, and songs that have previously been published.
Should you ever find yourself needing to prove that you wrote the song when you did, this is much more likely to help you than waiving an unsealed envelope in front of a judge.
You should also realize that any court battle is likely going to cost a lot of money so properly registering your work before you release your song to the public is a good way to avoid that mess by proactively protecting your interests if you're making music for more than just your own enjoyment.
Registering your copyright with the Library of Congress is not a requirement for releasing your music but it’s certainly recommended if you're even remotely serious about protecting your music.
You may not want to or even need to register every new song you write but certainly consider registering the ones you plan to record and release if you want to be properly recognized as the songwriter.
Along with recognition can come actual compensation for the performance or use of your song.
register with your Performing Rights Organization (PRO)
In the United States, this would be BMI, ASCAP, or SESAC. These organizations do NOT register your copyright with the Library of Congress for you. Your PRO simply needs to know about you and your new song so they can help collect any performance royalties from it on your behalf.
You only need to be a member of one PRO as they each serve the same function. It's simply a matter of personal preference, although SESAC is by invitation only. I'm a member of BMI but would certainly encourage you to research your options and pick whichever makes sense to you based on their membership fees and benefits.
Don’t Ignore Mechanical Royalties
What about revenue from Spotify and other streaming sites?
Mechanical royalties from streaming services are separate from performance royalties and many independent artists leave money on the table if they don't have a publisher or third party service to collect these royalties for them. Currently it's a bit of a mess but it does work.
In the not too distant future, the Music Licensing Collective (MLC) will be put into place to help identify the correct songwriter(s) of a streamed song to be properly recognized and compensated. It's actually going to be funded by the streaming services who have a responsibility to compensate the music-makers. This was one of the changes brought about by the recent Music Modernization Act, which attempts to update ancient laws written with player pianos and printed sheet music in mind.
Joining the MLC will be free, so there's no reason not to sign up when it becomes available, which is currently scheduled for 2021.
In the meantime, you can continue to pay aggregation services such as CD Baby, TuneCore, and DistroKid to collect mechanical royalties on your behalf. Research the agreements with each so you understand how it works.
Why should I bother?
Without getting into too much detail, you can (and should) be compensated for the use of your song and/or any sound recordings made from it.
Yep, there are two copyrights involved with your song:
Copyright of the song itself—referred to as "publishing rights". This is the underlying composition of the melody, chords, structure, and any lyrics. Your PRO helps collect performance royalties of your song as well as royalties from print licensing (e.g., sheet music, lead sheets, fake books, etc.). If you have a publisher, you split these royalties with them.
Copyright of the sound recording made of your song—referred to as the "master recording". In addition to the mechanical royalties from streaming services, physical copies, or digital reproductions of the recording, the owner of the master recording can also receive royalties from sync licensing (for use in TV & film) and from any sampling of the sound recording used in other songs. Don't confuse master recording with the process of mastering, which is the final step after mixing to optimize the recording for distribution.
You may decide to record different versions of the same song (album version, acoustic version, live version, etc.) and while each version is considered a separate sound recording, the underlying song and its copyright are the same for each version. Likewise, if others were to ever record a cover version of your song, you and your publisher still retain ownership of the underlying song and ought to receive some compensation from royalties generated by the new sound recording of your song.
What about collaboration on a new song?
Whenever you are asked to share or give up any rights to your music, be very aware of the details and circumstances involved. Do your research and/or ask for help when needed to better differentiate between a standard practice and a total scam.
It's not uncommon to collaborate with others when writing a song. You and your co-writer(s) should agree upfront on how to fairly split songwriting credits, commonly referred to as "splits". A split sheet simply documents that agreement so there's no confusion later as to songwriting credit and how to fairly distribute any royalties between writers.
When collaborating with or hiring others to help you record, mix, master, and distribute your song, be very aware of ownership of both the song and the resulting sound recording. Make it clear when any work or service performed is "for hire" and when it's not. Don't let any manager, producer, engineer, or studio claim a share of your rights unless you know exactly what you're getting yourself into.
When I mix your song you retain all rights to your music.
I have no interest in taking money out of your pocket, aside from what we've fairly agreed upon for my services. Others may work differently based on the services they provide, so always ask if you're unsure. Any legitimate business or service provider will be straight with you if you're straight with them.
My goal as your friendly neighborhood mix engineer is simply to help you reach your musical goals. I'd highly recommend you seek professional guidance anytime you are in doubt about your legal rights or need business advice as an independent artist.
When all of the doubt and confusion is eliminated, we get to focus on music-making. When we can focus on that, we can work together to better serve our mutual client—the song!
You already know how hard you worked on your song. Before you release your music, take the steps to properly register your hard work, protect your rights, and collect any revenue.
I'd love to hear how you go about protecting your songs. Tell me about your music!
Whenever you find something of value here, please share it on social media and within your musical circles.
get thoughts on music-making & making music thoughtful