Copyright on music in the United States belongs to the composer according to the Copyright Act of 1976. After composing any music into any tangible medium of expression (which means writing on paper or entering music into a file on a computer disk drive), then copyright is automatically created.
A copyright notice should be included by the composer, either on the title page of the music or on the first page of the music. The notice should include three items: (1) the year the composition was first published, (2) the word “Copyright” or the symbol ©, and (3) the composer’s name. After United States became a party to the Berne Convention, there are some benefits of including the notice. The copyright should be registered at the U.S. Copyright Office, before the first public performance of a composition or before the first public display of a composition, for example, before posting the sheet music on the Internet. Copyright registration puts the copyright owner in a stronger legal position in case the composition is plagiarized.
Certain benefits are available to a registered copyright owner against infringers, including:
- Prima facie evidence of the validity of the copyright is its registration, when a case occurs before the court for copyright infringement. This registration is valid in the litigation only if the copyright was registered before five years after the date of first publication as prescribed in 17 U.S.C. Section 410( c). In such cases, it is the burden of the defendant to prove that the copyright is invalid in the copyright infringement litigation.
- The copyright owner can bring an action for infringement of the copyright as prescribed in 17 U.S.C Section 411(a).
- Copyright owner is entitled to can recover statutory damages between $750 and $30,000. Plaintiff need not show any financial loss from the infringement to recover these statutory damages. If there is any willful violation by the infringer, then the damages can go as high as $ 150,000 according to 17 U.S.C. Sections 412, 504(c).
- The infringer is also entitled to pay reasonable attorney fees to the copyright owner according to 17 U.S.C. Sections 412, 505. Mostly, attorney fees in copyright litigation cases that go to trial may exceed $ 100,000.
A composer may sell a part or whole of his/her copyright to a sheet music publisher, as part of a written contract to publish the composition – for making a photocopy of the work, to post a copy on the internet, publicly perform the copyrighted music, or for making a recording of copyrighted music. A person who wants the copy of this composition must need written permission of the copyright owner. There are also certain common exceptions from the requirements for written permission such as, performance of copyrighted music in a classroom of a nonprofit school/college is not an infringement of copyright, performance of musical works as a service at a place of worship, and finally if the performers, promoters are not paid for performance at a nonprofit institution.
Performers have the right to perform music in public. It is part of the copyright law and demands payments generally spilt fifty-fifty between the music’s composer/lyricist and publisher. Public performance is defined to mean any musician or group who is not the copyright holder is performing a piece of music live. Performances are considered to be public when it occurs in a public place and normally when the audience is outside the friends circle and families. Public performance also includes but is not limited to broadcast and cable television. In the United States, broadcasters can pay for their use of music in two ways: they can obtain a license from American Society of Composers, Authors and Publishers (ASCAP) and Broadcast Music, Inc.(BMI) to use all of the music in their repertories or they can obtain license or permission directly from the music’s copyright owner (normally the publisher). ASCAP, BMI along with Society of European Stage Authors and Composers (SESAC) are the three performing rights societies in the United States. Once these performing rights societies receive payments from the broadcasters they are responsible for compensating the publisher and music authors.
Producers are those engaged in the development and production of original or composite materials necessary for publication and distribution whether for broadcast, recording, film or the web. In other words, a music recorder may be an author when s/he is responsible for setting up the session, capturing and electronically processing the sounds, and compiling and editing them to make a final sound recording. A recording of a performance of a musical work is commonly made on a multichannel magnetic tape recorder. The original recording data are then edited to make a master recording. Thus the master recording is then copied onto disks or tape for delivery to the audience or listener.
The copyright on the music generally comes first and then the copyright on the master recording. The music producers can avoid infringement of their work by requesting and obtaining permission in the form of a license. This license is obtained to use a copyrighted work within the context of another production or to transpose or switch the work to a different medium for distribution. It is the original artistic or intellectual creation which is granted copyright protection against authorized use, regardless of its physical expression.