Can You Copyright a Drumbeat?

Copyright a Drumbeat

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 be copyrighted?

As a starting point: any musical performance that is recorded in any form already has automatic copyright. This happens 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 – it’s not typical to copyright a drumbeat. 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 arguable 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.

The Good Part

So really, the lack of protection affords us all the ability to do more in the studio. We can do this without the 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 handclaps 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.

Songwriting copyright equally

Now, this is not to say that you don’t deserve a cut of songwriting. Especially 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 the general operation of the band. In other words, it’s completely up to you and your bandmates how the songwriting is divided for each song, regardless of what the law typically acknowledges.

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

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55 Responses

  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).

    Reply

    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

      Reply

    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

      Reply

  3. 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.

    Reply

    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

      Reply

  4. 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.

    Reply

  5. Hey kurt

    I am in a dispute with a drummer of an old band the original band split and I re formed it with a completely new set up I composed all the guitar in the tracks however the old drummer is threatening to sue me because he says the drums are similar to his and we stole them my drummer has never heard the original tracks and I am not a drummer coupled with the fact I don’t play drums and didn’t write the drums in the new band he is saying he is going to sue me personally not the band for plagerism if I don’t give him a writing credit we where not signed and did not have any writing contract either written or verbal does he have a case?

    Reply

  6. Hey Kurt. I guess I’ll say, the difference between copyright and song credits just came even more realistic to me this year. And again, composition being the musical notes used and lyrics if any. The sound recording being the arrangement of that song. I’ve always wondered why a composition on sheet music never has drum notes on it. And bass line notes. Correct me if I’m wrong. To this day. I’ve always thought a composition was every note composed in the song. And you could only copyright the lyrics and melody only. And if 4 people composed this song, they all get credit. Correct me if I’m wrong.

    Reply

  7. Hi Kurt,

    I teach drums to kids, and create my own abridged drum parts so they can play songs that would otherwise be too difficult and frustrating. Beats, fills, and crashes – everything is simplified, in some cases to an extreme level (ex: War Pigs, tamed down for an 8 year old beginner).

    My arrangements work very well for beginners, and I would like to start selling them. No audio or video of any kind. Just simplified sheet music for drums only. Do I need to get copyright permission? Or would my simplified drum parts fall under the category of drum beats or drum parts that can’t be copyrighted?

    If I do need copyright permission, would I be able to word it in such a way that it doesn’t infringe on anything? Such as “Drum Beats In The Style Of War Pigs,” instead of having to hunt down and contact dozens of copyright holders.

    Thank you!
    Carol

    Reply

    1. Hi Carol,

      I don’t know the answer offhand but I’m guessing you would have to get permission of some sort. Even though your arrangements are your own work, they are based on an existing work in which copyright exists. Your workaround might work but I would have to look into further. It brings to mind those baby lullabies that are rock songs (I have two young kids at home). I’d suggest looking into how that business model works, as it’s analogous. Hope this helps

      Kurt Dahl
      Entertainment Lawyer

      Reply

  8. Dear Kurt,

    Do you have any experience with traditional percussion, like traditional West African rhythms for Djembe drums?
    There are several people who recorded these rhythms and also sell educational materials teaching them, but I am not sure if they could possibly have rights over the actual rhythms or just the records/educational materials.
    What is your input on this?

    Reply

    1. I don’t have experience with that Miruna, but that is a great question. I guess a) it depends how old the recordings are and b) what the copyright laws (if any) are in that country.

      Kurt Dahl
      Entertainment Lawyer

      Reply

  9. I liked your point that it is not necessarily a bad thing drumbeats cannot be copyrighted. I imagine this will make it easier for drummers to build off of the great beats that have already been created. And who doesn’t like the old beats mixed with something new?

    Reply

  10. How about drum loops from different kinds of apps? Is it infringement if you sample a drum track from such? Or a sample from a drum track created through an app?

    The app says though that when a user has bought the app all production by the user is their own; even commercial wise. So if that’s the case, should permission be asked from the user who created the drum track (via the app) instead?

    Reply

  11. I guess the jury in Katy Perry’s “Dark Horse” copyright case assumed a beat can be copyrighted, since they awarded $2.7 million to Flame, aka Marcus Gray, based on his “Joyful Noise” song.

    United States District Court, C.D. California.
    Marcus GRAY et al.
    v.
    Katy PERRY et al.
    Case No. 2:15-cv-05642-CAS (JCx).

    Reply

    1. I was referring to “beat” as in “drumbeat”, not in the more modern sense of “beat” meaning all the music behind a song (which was the case with Katy’s song – the melodic note was the real thing that was similar in the two songs). But good point that is worth clarifying – what is meant by “beat”! 🙂

      Kurt Dahl
      Entertainment Lawyer

      Reply

  12. Personally, I think one needs to make a distinction between generic, well used, and much imitated drum patterns, and demonstrably original drum parts/ grooves/programmed patterns etc. Not to mention that a drummer could also publish their ‘original’ drum parts as written music. I think stating, “the short answer: unfortunately, no” is potentially misleading, for multiple reasons. It’s not that difficult to create novel drum parts – such that they feature prominently in a composed work (or perhaps they are drum based musical works) – as such I fail to see how copyright law would not apply. Maybe examples like this have not been tested legally – to the extent that a precedent has been set for copyrighting ‘original’ drum parts?

    Reply

  13. Kurt, my son is drummer & has just left his band. They have informed him they are about to release a song with his drum recordings from their studio sessions. He is not happy about this so do you know were he stands with regard to credits and copyright. Thanks Mark

    Reply

    1. Technically, unless he signed away his rights to his performances, he can stop them from releasing them. His performances belong to him, unless he signed away those rights.

      So now he needs to hire an entertainment lawyer to inform his former bandmates of this fact.

      Kurt Dahl
      Entertainment Lawyer

      Reply

  14. why unfortunatly? lol the world and music in general would suck if drums get copyrighted. it would be the end of music

    Reply

  15. Hu Kurt,

    Thanks for this article. Very helpful.

    I just want to cover some bases here. I have been recording some songs and there are several drummers on Youtube and elsewhere who say that using their drum-tracks is free and fine to use…. EG: http://www.smarthobbymusician.com/over-300-drum-tracks/

    If I use a drum track, is it likely that Youtube will jump on me and tell me I can’t or take down my video?

    Thanks

    Reply

  16. So what if I took the drums straight from the song “Heart Shaped Box” by nirvana, and created an entirely different melody, rhythm, harmony, everything. Would it still be infringement based on the fact im using the drums straight from the nirvana recording?

    Reply

  17. Hi There
    My Son is recording his own songs using pre-set accompaniments on a Yamaha digital piano. Its a very clever machine which literally gives you an automated backing band so that you can compose your own songs in virtually any style with just a few chords. He is concerned that even though the songs are completely his own, the backing intros and endings etc would be subject to copyright and only usable for personal home use, not suitable for publishing in any public domain. Would appreciate your thoughts.

    Reply

  18. Kurt,

    What software does BMI, other companies and the copyright office use to break down the beat to a computer pattern to compare it to millions of other songs?

    Thanks.

    Reply

  19. When he died in 2017, Clyde Stubblefield was considered one of the most influential drummers in music history, but he barely collected any royalties on the tracks that sampled his work. Should he have sought legal counsel and sued?

    Reply

  21. Hi Kurt. What if you download an mp3 of a pre-recorded drumbeat by a professional drummer (many are available online) and use that actual recording as the drum track in an original song you write, record and release.

    Reply
  22. Pingback: Are Drum Loops Copyrighted? (& How You Can Protect Yourself) – Best Friends Club

  23. Hey! can a hi hat midi be copyrighted? I’m afraid the same rhythm within the midi of the hi hats are too close to somebody else, however it’s only hi hats rythm, not the beat in whole because there are none from begging. But somebody that created a hi hat rythm in the first place can seek legal action against a whole song just because the hi hat rythm ? true or false?

    Reply

  24. If you got a beat off YouTube and played an instrument like a piano or other drums over the same beat could you still be sued?

    Reply

  25. Hi guys,

    I am trying to do some research about the copywrite of drum patterns and beats. I noticed that the most common answer to using drum beats from other songs are not copyright protected, only the sound recording.
    This is a little confusing.

    I am busy with a song inspired by Vangelis, Jean Michel Jarre, OMD and Mike Oldfield, and would like to use the similar beat of the marching snare drum from the song ‘ Maid of New Orleans – OMD.

    Am i allowed to create this, or do i need to get it cleared.

    Any help or guidance would be appreciated a lot.

    Reply
  26. Pingback: EP 114 - Can You Copyright A Drumbeat? with Kurt Dahl - Drum History - CBD FOUR PAIN

  27. Hi Kurt,

    Great article, thank you! I am a drum teacher wondering about the legality of transcribing (& sometimes simplifying/arranging) drum parts for students learning tunes. Would only be used during lessons to learn songs, not sold or shared. I assume that’s all good but I wanted to double check! Thanks!

    Reply

  28. Hi Kurt,
    What about transcribing drum parts? I’m a private drum instructor and I would like to transcribe some popular songs for my students and make them available on my website. Do I need permission to do this? I know there are a lot of educational sites that make drum transcriptions available, I just don’t know if I need permission, and if so where to get the permission.

    Thanks for your time:)

    Reply

    1. I suppose my question is similar to the person above, however I would want to make my transcriptions available on my site as well which would be membership based.

      thanks again,
      Jason

      Reply

  29. Hi,
    I am a UK producer and I have sampled an actual 2 bar drum pattern from an artists cd. I have added in some of my own percussive instruments too.
    Will this be legal to use? All other instruments used are from my own composition.
    Many thanks,
    Andy

    Reply

  30. Hello Kurt, I am working on a song, and it’s my first song ever. I wrote the lyrics from listening to some loops from a Gospel Construction kit, and they tell me the kit is a royalty free loop base pre- recorded piece of music. If this is true, can I use the drum pattern and bass and keyboard pattern to make my own songs. I understand that the drum beat cannot be copy written because it’s not a melody or lyric. Is it safe to use these types of sounds from Construction kits.

    Reply

    1. It really depends on the terms of use with the particular “kit”…read the fine print and let me know if you have any questions.

      Kurt Dahl
      Entertainment Lawyer

      Reply

  31. I want to create drum sheet music transcriptions of songs from various rock bands and sell them online… but I am guessing this would violate copyright? How would I go about doing this? Would I have to get permission from those who own the licenses or how would this work?
    I see a lot of people doing this online, but I imagine they are entering into a legal grey area. I want to make sure I am above board with whatever I do. Thanks!

    Reply

    1. Good question, and I’m not 100% sure of the answer. I would hire a lawyer to get a formal opinion if this is going to be your business model.

      Kurt Dahl
      Entertainment Lawyer

      Reply

    1. I haven’t done any research on this song but if you’re sampling from a song, then yes you would need a license to sample that portion of the master.

      Kurt Dahl
      Entertainment Lawyer

      Reply

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