In this three-part mini series, I’ll look at the legal protections UK law provides musicians for their work. These rights are:
- Copyright – which gives the creators of music, lyrics and sound recordings rights to control use of their work. These rights include saying who can and cannot make copies, issue copies to the public, or broadcast and use on-line.
- Moral Rights which provide a right for an artist to be identified as the creator of material such as a song, and to object to any distortion or false or misleading portrayal of their material.
- Performing Rights which provide various rights in performances by an artist, such as a gig. These include rights in all recordings, films or broadcasts of their performances.
This first part will look at copyright.
What is copyright?
Copyright protection is automatically and freely available for works that are original and have been recorded. The relevant law is set out in the Copyright, Designs and Patents Act 1988 (the ‘CDPA’). In essence, copyright rewards individuals who have independently created a piece of work by enabling them to control use of their work.
The CDPA sets out various categories of works that qualify for copyright protection. For musicians, this means distinct and separate copyright works can exist in relation to a song recorded to CD. For example, copyright protection will apply to:
- The music of a song which is classified as a ‘musical work’.
- The lyrics of a song which is classified as a ‘literary work’.
- The sound recording of a song which is classified as a ‘sound recording’.
The fact that the CDPA provides copyright protection for sound recordings is of particular interest as a new, clear and separate right of copyright will exist in a recording of any existing piece of work. So, if a producer records an artist playing one of their songs then a new work has been created by the generation of that sound recording.
Artists can use this to their benefit. For example, Squeeze re-recorded part of their back catalogue when Universal refused to grant them a licence to use their original recordings. By re-recording their original works a new copyright work was created and Squeeze own that work. This has put them back in commercial control of the songs they originally created.
Who benefits from copyright?
The CDPA states that the person who creates the work – the ‘author’ – owns the copyright to that work. So, the artist who writes lyrics or music will own the copyright to those lyrics or music.
Often the lyrics are written by one person and the music by another. Alternatively, two or more persons could collaborate on writing a song – both being involved in the creation of lyrics and music together. In both scenarios, the artists are called co-writers and they jointly own the work. In this scenario, the artists should ensure that they agree, in writing, who owns the lyrics and who owns the music. If the artists have worked together on elements of both then they should record the percentage contribution made in each area (e.g. Miss Lyricist – 20% music, 75% lyrics and Mr. Songwriter – 80% music and 25% lyrics).
There are numerous disputes between artists, producers and band members as to who wrote what. Not surprisingly, these disputes tend to surface when the disputed song becomes a hit! Recent examples include the emerging dispute between Radiohead and Lana Del Rey and the now settled dispute between Ed Sheeran and Matt Cardle in which it was claimed that in creating the hit ‘Photograph’, Sheeran had copied ‘note for note’ Matt Cardle’s song ‘Amazing’. The preponderance of such costly, prolonged and damaging disputes makes it clear that a written record of ‘who owns what’ should accompany the writing and recording of any material.
A special provision applies to sound recordings, where the CDPA states that the author is deemed to be the ‘producer’ of the sound recording. However, the CDPA goes on to define ‘producer’ as meaning the person who made the arrangements necessary for making the sound recording. This typically means that the party who paid for the recording will own the copyright to that recording. Artists should tread carefully in this area and preferably take legal advice. Before entering a studio as part of a demo or studio deal – where ‘free’ studio time is provided – be clear who will own what rights and ensure this is set out in writing and signed by the producer and studio.
How long does copyright last?
Copyright protection generally lasts for the life of the author plus 70 years from the end of the calendar year of his or her death. There are some exceptions to this. For example, for works created by co-writers copyright lasts for 70 years from the end of the calendar year in which the last known co-writer dies.
For sound recordings, copyright protection depends on whether the recording has been ‘published’ – that is, released, or communicated to the pubic (e.g. played on the radio) as follows:
|Sound Recording||Period of copyright|
|Not published or communicated to the public||50 years from when the recording was made|
|Published within 50 years of when it was made||70 years from the year recording was first published|
|Not published within 50 years of when it was made, but is communicated to the public||70 years from the year recording was first communicated to the public|
|First communicated to the public within 50 years of when recording was made and is then published at a later date (but within 70 years of its first communication to the public)||70 years from the year it was first published.|
What protection does copyright provide?
If you benefit from copyright then the CDPA prevents a person doing any of the following acts without your permission or consent:
- Copying your work.
- Issuing copies of your work to the public.
- Renting or lending your work to the public.
- Performing, showing or playing your work in public.
- Communicating your work to the public.
- Making an adaptation of your work or doing any of the acts listed above in relation to an adaptation.
For there to have been an infringement one of the listed acts must have been committed in respect of the whole or a substantial part of your work. What is a ‘substantial part’ is assessed on the basis of quality rather than quantity.
In the 1934 case of Hawkes & Son Limited v Paramount Film Service Limited the court held that a 20-second sample from a four minute recording of Colonel Bogey was an infringement of copyright. This is because that sample was so recognisable. Lyrics also receive protection. In Ludlow Music Inc. v Robbie Williams and others (2000), the court found that the Robbie Williams song “Jesus in a Camper Van” had taken the central idea from Ludlow’s “I am the Way (New York Town)”, namely that the Son of God attracted bad luck by going round saying “I am the way” and had embodied it in virtually identical words. This was of sufficient substance to amount to an infringement of copyright.
What can I do if somebody has infringed my copyright?
If somebody has infringed your copyright then there are a range of possible remedies. These include:
- Injunctions – which can give you the power to search premises, freeze assets or prevent the sale of, say, counterfeit music.
- A court order requiring the infringer to deliver infringing copies of your work to you.
- Seizure of infringing copies and other articles.
- Damages to allow you to recover the money you would have made but for the infringing act. Alternatively, you may be entitled to require the infringer to account to you for the profits the infringer made from their illegal activity.
- Criminal sanctions for certain offences. For example, making an infirnging copy of a copyright work available for sale or hire carries a maximum penalty of 10 years imprisonment or a substantial fine.
If you would like to discuss any specific requirements then please feel welcome to call me, Mark Roberts, on 0161 826 1297.