If you own a copyright, you will be entitled to the bundle of rights granted by copyright law. Therefore, it is important to understand how ownership is defined and how you can use your rights.
A few general propositions about ownership:
Works can be created for hire. In such instances, the work belongs to the hiring party.
If more than one person created a work, they might be joint owners of the work.
If you composed a song, you own the copyright. If you recorded your song, you own the copyright in the sound recording. For sound recordings it is important to remember that ownership can belong not just to the performer but also to others involved in the creation of the sound recording. However, the performer always has a copyright in the sound recording unless he/she assigns this right away by contract.
Giving away the bundle of rights that constitute copyright is often called a grant. If the transfer is exclusive it has to be in writing. For example, if Alice composes music, she can give Bob an exclusive right to cover her composition for distribution in the United States and Carol the exclusive right to cover her composition for distribution in Europe. These are exclusive grants and have to be in writing.
Works Can Be Made Available Under Terms More Favorable Than Copyright Allows
The Creative Commons, an organization founded by a number of legal scholars, has developed a series of licenses that allows copyright holders to retain control over their works, but still make them available under terms more favorable than copyright allows. The copyright holder can choose to make the work available under a single license or a combination of licenses. For example, a copyright holder can permit use of the work only if it is used for noncommercial purposes and if the work is attributed to him, while retaining the right to make derivative works. Or he could make it available for derivative works, but require that the derivative works be made available under the same terms as the original.
Creative commons has recently introduced a new sampling license under which artists are allowed to use portions of other artists’ works in sampling. Various artists are expected to offer their work to be used for sampling through the creative commons website. More information about the creative commons license is available on their website at www.creativecommons.org.
Copyrights of works created by employees belong to the employer in the first instance. Also, specific categories of works created on commission can be works for hire, and therefore owned by the commissioning party, if the parties agreed to it in writing. These categories are:
A contribution to a collective work.
A part of a motion picture or other audiovisual work.
A translation.
A supplementary work, such as forewords, afterwords, pictorial illustration, map, chart, table, musical arrangements, or index.
A compilation.
An instructional text.
A test.
Answer material for a test or.
An atlas.
Works that do not fall under these categories cannot be considered works for hire even if the contract between the parties states that it is a work for hire.
When a group of musicians together create a composition or when a band creates an album, a joint work is created. A work is considered joint if it meets these conditions:
both or all the authors intend that their contributions be merged into a single work;
this intention exists at the time of creation of the work.
No written contract is necessary to create a joint work. Each author owns an undivided portion of the entire work. While each joint author may exploit the work without other joint authors’ permission, any profits must be shared with the other joint authors. No single author can grant exclusive rights without consent of the other authors.
For example, if Gertrude writes lyrics and Harry writes the music to a popular song, both of them own copyright in the lyrics and music. Harry can give permission for someone to reprint the lyrics even though Gertrude wrote them. Gertrude can give permission for a filmmaker to use only the song’s melody as soundtrack music even though Harry wrote the music.
It is likely, that in the absence of a contract to the contrary, performers will own copyright to sound recordings jointly with record companies.
US copyright law requires that, in order to be eligible for protection, a creative work be fixed in a tangible medium. Therefore, a performer cannot have a copyright in his performance. However, if the performer records the performance he may have copyright in the sound recording.
The creativity in the process of creating a sound recording involves not only the performance of the singer but also the input of the instrumentalists, musical director and engineers. Because so many people collaborate in the creation of a sound recording, the issue of ownership is difficult to resolve. This issue is mostly resolved by contracts. It is important for performers of music to remember that they are likely to have a copyright in the sound recording, unless they sign those rights away.
Copyright in sound recordings was introduced in 1972. Copyright law is a federal law. It was enacted by the Congress of the United States and is applicable uniformly through out the United States. However, the state of New York protects rights in sound recordings created before 1972. This protection will continue to exist until 2067.
An author who has assigned his/her copyright in return for a continuing royalty interest is a “beneficial” owner of the copyright. As long as he/she has a continuing financial interest in the copyright, a beneficial owner is entitled to sue for infringement. A beneficial owner has only two rights in the work — the right to receive royalty payments and the right to sue.
For example, Alice, a songwriter, assigns her copyright in her composition to Bob, a music publisher in exchange for royalty payments. Despite this assignment, Alice can sue anyone who uses her composition without Bob’s authorization and obtain royalties.