Music Law: Copyright and Trademarks (Script 264)

From Clicklaw Wikibooks

This script explains the law that applies to song writing, performing and recording music. It discusses the ownership of music and lyrics, getting paid for performances, the legal relationship among band members, contract relations with managers and agents, and dealing with agreements offered by recording companies and others. The script will interest all musicians who record, perform solo, or play in a group or band.

When do songwriters and musicians have copyright?

Yes. When a song is created, copyrights exist immediately and automatically for the music, the lyrics (the words) and the combination of music and lyrics. The owner of the copyright will be the person who creates the song (the lyricist or author) and the person who writes the music (the composer). This copyright can be assigned by a written (not oral) contract to another party, such as a publisher or recording company.

A song is called a composition. A recording of the song is called a master recording. A separate and independent copyright applies to the recording.

Copyright owners (in some cases, the authors and composers, but often the publishers and recording companies under written contracts) can control copying and distributing of their compositions and recordings.

It is generally illegal to copy songs (including sheet music and song lyrics) and recordings without permission of the copyright holder. But there are some exceptions. For example, you can reproduce a song for private purposes if you legally bought the original copy of the song. And you can make a backup copy or reproduce the work for criticism or review. Now there are also exceptions that allow for non-profit uses on the internet such as on personal YouTube pages. The Copyright Act has strict conditions for these exceptions though, so you must be very careful when considering using or copying music, lyrics or other works you don’t hold the copyright for.

How long does copyright last?

All copyrights expire eventually. After copyright expires, a work goes into the public domain. Generally, in Canada, copyrights expire 50 years after the author dies (plus the rest of the calendar year when the author died). There are some exceptions. For example, if the author is anonymous, the copyright term is 50 years from the end of the year of publication.

Once a work is in the public domain, usually anyone can copy and use it. But other rights that do not expire may still apply (such as personality rights). So it’s a good idea to get legal advice before using or copying any works that you think may be in the public domain, unless your use fits clearly into an exception.

If you play someone else’s music, do you have to pay a royalty?

To publicly play or perform music created or recorded by another lyricist or musician, you, your label, or the place where you play must pay a fee or royalty. So if you perform cover songs with a group in public, a musicians’ collective may ask you (or the place where you’re playing, called a venue) to pay a royalty. You also have to pay royalties if you record cover songs, whether you make CDs or sell them online. Musicians’ collectives include:

  • Connect Music Licensing (formerly, Audio-Visual Licensing Agency or AVLA). They collect royalties for owners of master recordings, something that disc jockeys should pay special attention to.
  • Re:Sound. It collects fair compensation for artists and record companies for their performance rights.

The same laws on copyright and royalties protect you too if you write and record your own music. You should register with SOCAN, which collects licensing fees and royalties for member songwriters and musicians whenever their compositions are broadcast on radio or TV or performed in public. (That’s done through the Canadian Intellectual Property Office.)

How do you get paid if you work independently on a single performance or a call-out basis?

As a performer (as opposed to a songwriter), you are normally paid on the day of performance just for that performance. You have no rights in the music beyond the day of performance. Generally, you aren’t entitled to any other payment. But there are exceptions, for example, if you’re part of the musician’s union. It’s always good to have a written agreement, even a simple, handwritten one. It’s usually good, though, to ensure you’re paid what you expect when you expect it, and to ensure you (and the band leader) are aware of any other requirements (such as scheduling, equipment rentals or wardrobe).

What about further payment after the performance?

These are called royalties. Royalties are further payments if your performance is recorded and the recording is later used on TV or radio or in some other commercial way. The organization recording you should ask you for permission to do so before recording you.

When can you ask for song writing credit?

If you work on a piece of music written by others and suggest changes that have a large impact on the music, you may want co-writing credit. You should ask for song writing credit at the time the music is written. The agreement must be in writing and properly say what you are getting credit for.

What is the legal relationship among group members?

Most of the time, a group works together with the common goal of earning money, and they make decisions together. Legally, without any other agreement or incorporation, the group or band will be considered a partnership. The arrangement among members should be made in writing by all members, setting out the rights and responsibilities of each, how members may join or leave, who writes the music, who owns the band name and so on. Misunderstandings can lead to break-ups and even lawsuits, so make sure everyone understands the agreement.

Sometimes, a group leader hires and pays the musicians and makes all the decisions for a particular kind of show. That person is called a band leader and is legally a proprietor. The hired musicians are independent contractors or employees only. They have no ownership interest in the group, unless a different agreement has been negotiated and put in writing.

A group can also consider carrying on business as a company. The group may do this if their earnings are significant or if they are signed to publishing or recording deals. Individual members of the group may also incorporate their own companies (often called “loan out” companies), which can offer certain tax benefits if the musician’s earnings are significant.

What about the name of the band?

It’s important as a group becomes popular to ensure that another group isn’t using your group name. To properly protect your band name, you need to consider registering it as a trademark, because other registration methods, such as internet sites, will not protect you properly. Check script 231 on “Patents, Industrial Designs, Trademarks and Copyright” for more information on this.

Who in the band gets credit for original music?

It’s important to discuss writing credits for original music and agree on who the writers are. Is the music created by the band, or only by certain members? This should be written down for each piece of music, and agreed to by all. Sometimes the co-writing credits involve people outside the band, and those people need to be acknowledged.

How do you protect your band’s copyright in your music?

Since copyrights arise immediately when a song is created, evidence of when a song was created can be critical if you have a copyright dispute. You may also need to show that you (or your band) actually created the song.

Formally registering the work with Industry Canada is one, very powerful, way to prove that you created a song at a certain time, but there are other ways (such as emails and other electronic files). And you don’t have to register.

If you keep notes, communications (such as email messages) and other material (such as song and lyric versions) relating to the song, those can be valuable evidence in a copyright dispute. There are several inexpensive online storage tools available (check out secure cloud storage).

Also, you can document who wrote the song (including the date and the percentage each band member owns) and have everyone sign it. That can be good evidence of the copyright.

Copyright cannot be fully protected only by mailing the original music, lyrics, and recording to yourself by registered mail. This may help verify the date the work was created, but it alone doesn’t connect the creation to the creator. So generally, this is not an effective way to protect copyright.

If you want to register your song with Industry Canada, it does not accept copies of single physical recordings. But the US Copyright Office does. Canadian albums that go into general release are registered at the National Library of Canada by the publisher.

How do you distribute and market your recordings?

After a song is recorded, it has to be distributed (by CD and online). It also has to be marketed. And you should make appearances to support it. This is when a group usually hires a manager and agent, and looks for deals with publishers and record companies. Make sure everyone is clear on their rights and responsibilities, the commission to be paid to the manager and agent, and how long the agreements last. These should be put in writing and reviewed by a lawyer.

When does a record company get involved?

If a group creates enough buzz, a record company may become interested. Deals offered by record companies tend to be long and very technical. All agreements must be in writing and reviewed by the group’s manager and lawyer.

More information

  • A good resource is “Musicians and the Law in Canada” by Paul Sanderson. The book is available at most libraries and is published by Carswell.
  • Another good book is “Confessions of a Record Producer” by Moses Avalon.
  • Music BC has many resources for musicians, including seminars, a library and technical help. Initial membership is free.
  • Check scripts 266 on “Forming a Partnership”, 267 on “Forming a Private Company” and 231 on “Patents, Industrial Designs, Trademarks and Copyright”.

[updated March 2018]

The above was last reviewed for accuracy by Ronan Reinart and edited by John Blois.

© Copyright 2018, Canadian Bar Association British Columbia Branch. Dial-A-Law is a registered trademark owned by Canadian Bar Association British Columbia Branch, a non-profit membership corporation.

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