It has been brought to my attention (other than in my actual workplace) that I am an attorney. When I started this blog, my intention was to express my opinions and share some love for contemporary a cappella music. I did not wish nor intend to address the very significant legalities which permeate our little society which is based, the majority of the time, upon recreations of other artists’ music. It is simply a fact that most recorded and performed a cappella music involves one group covering music written and originally performed by another artist: a fact which implicates copyright law.
While I may not intend for my opinions conveyed on this blog to be considered express or tacit approval for anything which does not comply with relevant copyright law, I am a practicing lawyer and I do not wish for any misunderstandings. As an attorney, albeit one with as much copyright expertise as a podiatrist performing neurosurgery, I am in a position to, at the very least, offer some basic facts about copyright law for readers of this blog.
So, I will address a few simple points about the legalities of arranging, performing, and recording music which was written by someone else and which is currently protected by copyright laws. For the really insightful and thorough analysis, please please please check out Jonathan Minkoff’s terrific A Cappella 101 blog right here. I must express tremendous gratitude to him for taking the time to read through my page here and helping me to create a coherent and relatively concise summary of a few of the most important concepts and questions relating to copyright and a cappella music.
Also, please note that you can pay requisite licenses yourself through services like Limelight here or the Harry Fox Agency here or Easy Song Licensing here and according to Mr. Minkoff, it is very easy to do so.
If you are short on time and can only read a few more sentences, here is the distillation of what you should know about a cappella and copyright:
If you did not write a song (a “cover”) and you plan to record that song (audio only), whether or not you sell or give away copies for free, you need to pay for a compulsory license for each copy created. You don’t need permission to do this, just payment. To make a video, you need a different license called a “sync” (synchronization) license. This requires permission of the composer or publisher. YouTube is sometimes, but not always, an exception to this rule because they have their own licenses with many but not all publishers. Regarding arrangements: you cannot display (like on a website, for example), copy, distribute, sell, or donate any arrangement- even your own- of a non-public domain cover song without permission from the composer or publisher. However, you can make an arrangement without permission for the sole purpose of making a sound recording if and only if you pay the fee for a compulsory license. (You cannot do anything else with this arrangement other than record it). You may also probably make an arrangement to perform publicly if the venue you are performing in has paid for the right to publicly perform the song. However, again you may not do anything else with the arrangement other than perform it publicly. If a song is in the “public domain,” you do not need to pay any fees or or receive permission to do anything you want with the song. Lastly, paying licenses allows you to sell and distribute your music legitimately, possibly through massive online distribution sources, and allows the artist(s) who wrote the music you love to be fairly compensated for their creations.
That being said, here are some basic answers to a few of the more common questions about copyright and how a cappella music fits into the American copyright law system.
“What does copyright mean?”
People frequently confuse or misunderstand the term “copyright.” In America, copyright is a form of constitutional and statutory protection. It does NOT protect an idea, a logo or slogan, or an invention. The much more vague definition is that copyright protects:
an original work of authorship fixed in a tangible medium of expression
The work may be literary, dramatic, musical, artistic, or one of a number of other forms of expression. While an author may not copyright the idea for his novel, he may copyright his very specific expression of that idea, and so on.
In order for an idea to be protected by copyright, it must simply be “original” and “fixed in a tangible medium.” For very basic purposes, this means that you do not need to register a work with the U.S. Copyright Office in order for it to be protected by copyright laws (though you should if you think there might ever be a need to collect royalties or prevent theft of your work). Instead, the copyright (generally) is automatically created when you place your expression of an idea into some kind of fixed medium, be it recording it onto a device, writing it down on a piece of paper, or capturing it on film.
“What is fair use?”
Perhaps the easiest way to answer this is it likely isn’t what you hope it is. “Fair use” is a limitation on copyright protections which allows someone to reproduce a copyrighted work in certain circumstances without permission and without paying requisite licensing fees. The knowledgeable and thorough Jonathan Minkoff has an excellent post about Fair Use which you can access right here, but the quick summary is that fair use is a vague, restricted concept which operates on a very particular case-by-case basis using a four-part balancing test and likely doesn’t help you avoid paying requisite fees when recording (or performing) a copyrighted work with your group. One thing is certain: if you use (perform or record) an entire copyrighted song, that is almost never fair use, regardless of whether you charge money or not.
“What is public domain?”
The public domain is a generic term for works which are no longer protected by copyright laws, never were protected by copyright, or are owned by the U.S. government. Any work which is in the public domain may be performed or recorded without permission and without paying any licensing fees or royalties. Currently, a copyright expires and the work enters the public domain 70 years after the author has died. This has changed several times and is more than marginally related to the copyrights owned by the Walt Disney Company (it’s true! Look it up), but it currently means that very little relevant musical material (at least so far as pop music is concerned) is in the public domain.
“What licenses must I pay in order to record and distribute a copyrighted song which my group is covering?”
Once again, for the details, I refer you to the relevant A Cappella 101 article here. The short answer is that you must obtain a “compulsory license,” which allows you to distribute the song legally, without the author’s permission, so long as you pay the relevant fees. There are several licenses which may be relevant depending on whether you are producing your music in a physical format (CD, DVD) or in a strictly digital format.
A “mechanical license” is required if you are producing a physical product, mainly a CD, or a digital file available via download, streaming, or even ringtones for distribution. You must obtain a different license for physical distribution than for digital distribution, meaning you will need both if you intend to distribute by both means.
A “synchronization license” is required if you are releasing a video featuring the song for distribution.
1) Remember- you must pay licensing fees if you intend to distribute a copyrighted song, even if you don’t intend to charge money for it!
2) You are required to pay the appropriate party (publisher, author, etc.) either prior to distribution, or within 60 days of making the copies.
3) Arranging a version of somebody else’s song does have copyright implications. Again, we turn to Mr. Minkoff right here. The short answer is that technically you are supposed to acquire licenses for each of your arrangements, but there may be circumstances in which the arrangement may be rolled into (covered by) another license if the song is recorded and you pay the requisite royalties and obtain the compulsory license for the song; OR if you are performing your song in a venue which is otherwise paying rights to permit performances of the artist’s work. This is tricky, so you might want to read the more detailed answers on this one.
4) What about YouTube? Paging Mr. Minkoff right here. The general answer is that videos of your group performing a copyrighted song on YouTube will often be run by the original artist/copyright holder at some point, and some artists simply allow the video to remain active for potential publicity purposes. But they do have the right to ask YouTube to remove the video and in theory you could even be sued for infringement.
One additional website which can help you determine fair use, search for the copyright holder of material, and much more is right here.
Nothing in this article is legal advice. It is simply a general discussion of the law designed to explain basic concepts of copyright law for general knowledge. If you have specific questions or require legal counsel, you should consult an attorney to obtain specific legal advice. If possible, I would recommend you talk to someone with some experience or expertise in intellectual property (and specifically copyright) law because, as I referenced before, lawyers may have vastly different specialties and you certainly may not want to deal with someone who handles (primarily or exclusively) an entirely unrelated area of the law. You may wish to contact your local bar association to request contact information for an appropriate attorney.