Once upon a time, musicians owned the songs they wrote and/or performed.
They still do, but in many cases, determining how much of the song, and which portion (lyrics, melody, copyright, etc), and how much that bit is worth, is a big ol’ ball of mess.
We all know more people are streaming music than purchasing whole albums these days. We all kind of understand that even streaming pays musicians, albeit just some tiny fraction of a cent.
Let’s try to take a closer look at the mess, shall we? In no particular order of importance:
Right off the bat, copyright is broken into two categories for music: There’s musical compositions – think sheet music or guitar tabs – and then there’s sound recordings.
The musical composition is typically owned by the person or group who put the melody, harmony, instrumentation and, if applicable, lyrics down on paper or a recording.
The sound recording is the fixed and published work – a completed album, song, theatrical musical, etc.
If Elton John writes a song but Neil Young performs it, they could both have copyright ownership of that particular song.
“Copyright in a sound recording is not the same as, or a substitute for, copyright in the underlying musical composition,” according to the U.S. Copyright Office.
“Although they are separate works, a musical composition and a sound recording may be registered together on a single application if ownership of the copyrights in both is exactly the same. To register a single claim in both works, give information about the author(s) of both the musical composition and the sound recording,” the office says.
Filing a copyright application protects the creator, establishing ownership and providing legal options should someone else try to say they wrote a song you spent five years perfect. If you own the composition rights to a song and someone else wants to use it, or re-imagine the song, they might need to contact you in order to get permission to use your work, which sometimes comes with a royalty payment.
In the U.S., copyright protections issued after 1977 last for the life of the author plus 70 years. If a work is published without a name tied to it, under a pseudonym or was written for a specifically defined reason (a song written to commemorate the inauguration of a president, for example), copyright lasts between 95 and 120 years, depending on when it was published. Copyright protection dates matter because once a work is in the public domain, no one gets paid for its use anymore.
In Canada, works are immediately copyrighted once it’s created, regardless of whether a formal copyright application is submitted or the work is published. The copyright protection and ownership lasts for lifetime of the author plus 50 years from the end of the calendar year when the creator died.
Remember the mess over “Happy Birthday,” where a family claimed to own the copyright and charged a small fortune any time a movie or TV show wanted to use it? That’s the reason restaurants made up their own silly songs for years and years, until 2015, when a court ruled the family didn’t actually own what they thought they did. At that point, millions in fees were ordered refunded and now we can all sing the song during embarrassing family parties.
Here’s where things get really murky.
When you use someone’s copyrighted work, you pay them royalties. (Again, the “Happy Birthday” example works well here.)
Once again, there are two types of royalties: performance royalties, paid when a song is played or performed publicly, and mechanical royalties, which covers things like album sales and streams.
When you’re out at a bar or restaurant and they’re playing music over the PA, the establishment has paid a fee to a publishing rights organization (like BMI, ASCAP, or, for digital-only uses, SoundExchange; SoCAN in Canada) for the permission to play that song. Their fee, usually paid annually, goes to the company that owns the publishing rights and is then further divided up among the writers of the song and the owners of the publishing copyright.
There are established parameters for how much artists are paid for their songs; this is set up in consent decrees determined by the Department of Justice in the United States, for example, and are renegotiated every few years to make sure things are as fair as possible. Radio stations buy their content via these negotiated contracts with record companies and labels.
SoundExchange, which only deals with digital streaming deals, can negotiate whenever it wants for however much it wants, meaning artists are stuck with lousy deals like getting paid fractions of pennies per stream: 0.00074 cents every time a song is streamed on YouTube or 0.002730 cents per play on the now-defunct Groove Music.
There are two ways to look at this: Radio and businesses that play music pay guaranteed money each year to get licensing rights to perform songs, money that is distributed to rights owners, authors and publishers. Artists don’t get paid every individual time their song is played in this manner, or every time a movie airs in which their song is used.
On the other hand, artists do get paid every individual time their song is streamed, but it takes a TON of streams to equal real cash.
Either way, it’s getting harder and harder for artists to earn a living just by having their music played or featured. (Yes, they can get contracts for things like commercials, which can pay handsomely, and yes, there’s merchandising and touring, but that’s another topic.)
Who keeps track of who gets paid how much for what?
And another layer of mess: Some bands famously evenly share credit for their songs – everyone is listed as an author and owns an equal share of publishing and performance fees. Even if they leave the band, if their agreement was in place, they might continue to get royalty checks for decades (or, in the case of The Simpsons, Sam Simon‘s estate continues to get credit for every new episode and every rerun even though he left the show after the fourth season; that money now goes to a charitable organization he created).
But members come and go, labels change and if you were a member of a band and left after 10 years but they go on for 20 more and you have your name on the first three albums, how do you ensure you’re getting what you’re owed?
There’s no easy answer here. That’s what lawyers are for. They can review contracts, determine ownership division and which royalties and what percentages are owed.
If you’re a musician, if you can hold on to your publishing rights in addition to your performance rights, do so. You’re securing a better long-term deal, especially if you’ve got a hit song or two and the band later dissolves.
Some in the music industry are keen to suggest that blockchain can help make this easier by digitally keeping track of who wrote what, who was included in the creation of a song and which label helped get songs out into the world.
The idea is that blockchain ledgers cannot be corrupted and provide a digital, irrefutable list of transactions, making it simple to look up what an artist is owed for their work.
Some blockchain supporters are going so far as to pay artists instantly, every time their song is played; others are creating their own platforms and developing their own cryptocurrencies to let fans exchange coins or tokens for VIP-like experiences. This is new and developing work and is surely something that will continue to grow in the next few years.
One more thing
Not going to dive too deeply into this, but some bands want to trademark their names. That should be a relatively straightforward legal step to ensure there aren’t two bands called Oasis out there creating mass confusion. That’s why we had Bush X and The Charlatans UK in Canada in the ‘90s – remember those days? Ah, simpler times.
Which brings us, of course, to The Slants.
Long story short: The band of Asian-American musicians fought for eight years, all the way up to the U.S. Supreme Court, for the right to trademark their name because the U.S. Patent and Trademark Office didn’t want to give them a trademark. The USPTO claimed the name was “disparaging” to Asian-Americans and used a really old and little-noticed law to back this up. This, despite other companies wanting to use the world “slant” getting their trademarks approved. In June 2017, the Supreme Court ruled in favour of The Slants, who had just wrapped up a tour of college campus, meeting with law students and discussing their case while performing in clubs and bars across the country.
Simon Tam, the band’s founder and bassist – not lead singer, a fact countless publications and the USPTO have repeatedly stated incorrectly – is writing a book about the whole ordeal. Should be a fascinating read. He’s not even a lawyer! Well, he might be now, unofficially.