BMI on copyrights

Musical Composition. A copyright in a musical composition encompasses a song's music and lyrics. It can be helpful to think of this work as what would appear in a sheet music arrangement of the song (the notes, score, markings, etc.).

Copyright protects compositions from the moment a songwriter fixes the work in a tangible medium, such as writing the sheet music or by hitting “save” in a software program that creates music. In practice, most songwriters do not retain the copyrights in their musical compositions, but instead assign the copyright to a publishing company - a business entity that specializes in commercially exploiting musical compositions.

Most publishing companies, in turn, authorize collective rights management agencies to license and collect royalties for certain specific uses of their compositions. In the US, the Harry Fox Agency is typically authorized to issue so-called “mechanical licenses,” that is, the ability to reproduce and distribute the musical composition. The publishing company then also authorizes one of the performing rights organizations (e.g., ASCAP, BMI, or SESAC) to issue licenses for “non-dramatic public performances” of the composition (“non-dramatic” performances generally means performances other than for opera or musicals and would include broadcasts).

For more on the Harry Fox Agency and the performing rights organizations, as well as on the reproduction/distribution and public performance rights, see the discussion in Section 1.2.7.3 - “Licenses You Will Need,” of this Guide. (b) Sound Recording. A copyright in the sound recording protects the recording of a musical composition as it was performed and recorded by an artist or group. Think of this work as what you would actually hear when you play your favorite CD: the singer's voice, the sound of the musical instruments and all of the engineering that goes into making the recording. It is important to note, however, that federal copyright protection of sound recordings only attaches for recordings created after 1971.

 Under state common law, copyright may attach to sound recordings created on February 15, 1972 or earlier. Use of pre-1972 sound recordings is subject to protection under state common law copyright. To determine who has the rights to a pre-February 15, 1972 sound recording and what rights they are entitled to exploit exclusively, you will need to look at the applicable state law -- usually the law of the place where the recording was made. As with musical compositions, the recording artist generally does not hold the sound recording copyright. Instead, whatever rights the artist has (and they are usually not copyright rights) are assigned to a record company in return for a share of the royalties from the sale and/or licensing of the sound recording.

If you want to obtain permission to use someone else's sound recording, however, you face a more complex situation than you do in relation to musical compositions and the permission you need to secure depends on how you are distributing the recording. For example: (1) no license is required to use a sound recording in an over-the-air radio broadcast; (2) digital transmissions that are considered non-interactive digital streams (in other words, listeners can't pick the songs they hear) require permission from SoundExchange, a performing rights organization designated by the Copyright Office to collect and distribute statutory royalties to sound recording copyright owners and others; (3) digital transmissions that are considered interactive digital streams (such as an on-demand service where users can pick the songs), and digital downloads, require permission be obtained from the record company that owns the copyright in the sound recording.

 Unfortunately for podcasters, it is not always clear into which of these categories a podcast fits; as a result, it is not certain to whom you should turn for licenses. These complications are discussed in Section 1.2.7.3 - “Licenses You Will Need.” Two Types Of Copyright “Rights”. In addition to appreciating that there are two types of works (the musical composition and the sound recording) at stake in any recorded song (and therefore, potentially, two copyrights), the use of a song in a podcast might implicate two or more different exclusive rights that copyright owners are granted under the Copyright Act in different ways, specifically: the right to reproduce and distribute copies of a work, and the separate right to perform the work publicly. Because as noted above in (see Section 1.2.7.1 - “Two Types of Works Involved In A Copyrighted Song”) these rights also are frequently owned by different rights-holders and licensed by different entities and may or may not be implicated in the making and delivery of a podcast, it is worth taking a moment to explain the differences between them. (a) The Reproduction Right.

Copyright holders in both musical works and sound recordings (see Section 1.2.7.1 - “Two Types of Works Involved In A Copyrighted Song”) hold the exclusive right to “reproduce,” or make copies of, the copyrighted work. If you create a new copy of someone else's song, for example, by downloading an MP3 file, burning it to CD, or causing it to be transferred to an iPod or other MP3 player, you may violate the copyright holder's exclusive right to reproduce the work. The simplest case of copying music involves reproducing an entire song. If you take an entire music track of someone else's song from a CD and use a CD burner to make a copy of it, you might violate the rights of reproduction in both the musical work and the sound recording -- absent fair use (see Section 1.2.9 - “Fair Use Under Copyright Law And Its Application To Podcasts”).

However, if you record your own rendition of a song, based on a song you heard, you only violate the right of reproduction in the musical work, but not in the sound recording. This is because the reproduction right in a sound recording only extends to copying the actual sounds included in the sound recording; it does not extend to the independent creation of similar sounds. If your podcast includes all or part of someone else's recording of a copyrighted song, you may infringe the reproduction rights in both the music al work and the sound recording. So if you create an audio file that contains the music (whether ripped from a CD or taken from a downloaded music file) you make a reproduction of two copyrighted works and, unless any of the exceptions described in Section 1.2.2 - “The Goods News: 5 Instances Where Permission Is Not Required” apply, you need to have express permission from the rightsholder(s) (this means permission in writing, such as an email giving you permission from a source you can confirm is indeed the person with authority to give the right, followed by a confirming letter from you noting the specific rights granted in the email, and the right-holder's signature on the letter). This would be true even if you never post the podcast online. If you do in fact post the file for others to download and you have not obtained the copyright holders' permission, in addition to direct infringement you could be also be secondarily liable for copyright infringement (udner theories of ”contributory” or ”vicarious” infringement) each time someone downloads it, because your act of putting it online enables others to create unauthorized copies. Copyright infringement lawsuits potentially could result in thousands or even millions of dollars in damages and attorney's fees. Therefore, the only truly safe course under current law is to secure express permission to use, in your podcasts, any copyrighted music and sound recordings that are created by others unless you are sufficiently certain that it falls under the so-called “fair use” exception (discussed in Section 1.2.9 - “Fair Use Under Copyright Law And Its Application to Podcasts”) or otherwise falls within an exception (see Section 1.2.2 - “The Goods News: 5 Instances Where Permission Is Not Required”).