Can You Copyright a Drumbeat?

kurt_dahlArticles, Drummer News, Lawyer News7 Comments

In light of the many high profile plagiarism cases making headlines in the music business over the last few years (Lana Del Rey, Led Zeppelin, Robin Thicke, Sam Smith, etc.), it felt like the right time to examine the topic of songwriting from where we all sit: the drum throne.

All of the above instances of alleged plagiarism involved similarities in melodies or chord progressions. But what about drum beats…can they by copyrighted?

As a starting point: any musical performance that is recorded in any form already has an automatic copyright in the recording of that performance. In other words, nobody could sample or otherwise exploit your recorded performance without your consent.

So the real question we need to ask: are drumbeats considered songwriting? If they are, then they form part of the musical composition and would be protected under the law just like a chord progression, melody or lyric.

The short answer: unfortunately, no. Drumbeats and drum patterns are not typically considered songwriting. The law makes clear that lyrics, melody, harmony and rhythm can be copyrighted. Most often, lyrics and melody are afforded protection under the law before the other two. This is arguably because the latter two are considered “accompaniment,” while the first two form the backbone of the composition, and remain consistent regardless of who is performing the composition.

This is actually a good thing in many ways. If every drumbeat was considered songwriting, the Bonham ‘Levee’ beat, the Bo Diddly groove, the ‘We Will Rock You’ stomp, even the standard four-on-the-floor pattern would all exist in only one song, and if you emulated any of them in a new song, you could be sued for plagiarism.

So really, the lack of protection affords us all the ability to do more in the studio, without fear of being sued. Singers and guitar players, for example, do not have such a luxury.

However, if you lifted the ‘We Will Rock You’ beat, along with similar hand claps and stomps, and added a vocal melody or phrasing similar to Freddie’s, that as a whole would likely be considered plagiarism. So it seems that a drumbeat and something else needs to be added before the piece will be considered songwriting.

Now, this is not to say that you don’t deserve a cut of songwriting when you write songs with your band. Many bands divide songwriting equally amongst all the members. The Red Hot Chili Peppers, Coldplay, etc. all divide the songwriting copyright equally for each song, even though the law doesn’t recognize the drummer’s contributions in the same manner. It’s a way of recognizing each member’s contributions as a whole to the songs and perhaps general operation of the band. In other words, it’s completely up to you and your band mates how the songwriting is divided for each song, regardless of what the law typically acknowledges.

As always, feel free to email me with questions, as songwriting is the most complex and sometimes confusing aspects of the music biz.

7 Comments on “Can You Copyright a Drumbeat?”

  1. I’m a drummer and lawyer too. Not sure I agree w the analysis but I’d like to do some research on us copyright law. Moreover, I think one can make a distinction between the composition of a full drum track versus a “beat” which is but a small part of the track (e.g. It’s without folks, subtle pushes w hi hats opening, flame and crashes between sections. All of those things combined seem appear to me to an expression of a drummers artistic view of the song. Here’s a practical hypo: if I transcribed the drum track to Neal pearls yyz drum track and seek permission to use it as a derivative working do I get it from teddy and alex? If so why? If not why not? It’s a genuine question and I’d love to have an open and honest legal and intellectual conversation about it. C (please don’t publish my email address I don’t want the spam).

    1. I appreciate your insight! Your example is different as it’s a written transcription, which is different. But I’m always open to discuss and share viewpoints!

      Kurt Dahl
      Entertainment Lawyer

    1. Hi Galen. It really depends on the extent of the “copying” involved, and if other elements of the original are copied. Then maybe.

      Kurt Dahl
      Entertainment Lawyer

  2. Hey, i’m doing a research on the music copyright law for school and have a few questions. What are the main differences between copyright back in the days and now? Can you just use a combination of popular rhythms and avoid copyright?
    If you have any suggestions what I can mention in my essay or any extra information please let me know.

    1. I’m not clear on what you’re asking here. The principles of copyright and what is copyrightable hasn’t really changed. If the popular rhythms are copyrighted, you will be in violation of the underlying copyrights.

      Kurt Dahl
      Entertainment Lawyer

  3. I think in the old days they would compare two melodies together. If the melody in question followed exactly the same notes over a certain number of bars it was a copy. Which was pretty simple to make a decision Now it seems it only has to sound similar which is totally subjective. Chord progressions were not copyrightable. Can you copyright a beat? If the actual sound was recorded from the original, that is a problem. How about a midi loop that sounds like another song? DAWS, drum machines hardware and software, almost always have a ton of midi loops. They are named 4/4 Backbeat, Breakbeat, Two step shuffle, Samba, Waltz etc. I don’t believe they can be copyrighted. If they could, no new songs could be created. Even written transcript of the drums…. Isn’t that exactly what a midi loop or drum track is? I could re-record your drum performance into a DAW, it would figure out the bass drum, snare and high hat out and create a midi file of your drum beat or even performance play it back using different drum sounds or samples, It would not be exact because velocity/volume/dynamics would be different. I don’t think this meets the definition of melody or harmony. But I will throw a wrench into my little theory here. If a drummer, took his toms, tuned them to a scale and played Happy Birthday to you recorded it and it became a hit. Could whoever owns the song (Michael Jackson or Paul McCartney?) Could he sue you because It is an exact melody copy of the song? I don’t know but I think if you made a bunch of money on your drum song they would come after you and probably win.

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