The 2 Copyrights in a Song (or The Most Important Concept in the Music Business)

kurt_dahlArticles, Lawyer News12 Comments

Most artists I talk with have a difficult time understanding the different copyrights in a song, and the revenue streams that flow from them. I don’t blame them. Our copyright system has developed in bits and pieces over decades, so there are layers of complexity that still confuse me (only once in awhile though, and early in the morning).

In every recorded song there exists two main copyrights: one in the written song itself (the Songwriting Copyright) and one in the recording of the song (the Sound Recording Copyright). It is important to understand that the two main copyrights in a song are separate and distinct, and involve different rights and sometimes different owners.

Copyrights in a Song: The Songwriting Copyright

Whoever writes the composition is considered the owner of the Songwriting Copyright. For more on What Constitutes Songwriting, see my article here. The revenue streams generated from the Songwriting Copyright include performance royalties (from radio play, live performance of the song, etc.), mechanical license royalties (a fee paid per song for every copy of the song made), synchronization fees (if the song is ‘synched’ to film or television), and others.

If you sign a publishing deal, you are giving up certain rights in your Songwriting Copyright. For more on the different types of publishing deals, see my article here.

Copyrights in a Song: The Sound Recording Copyright

When a musical composition is recorded, a new copyright is created called the Sound Recording Copyright. The revenue streams generated from the Sound Recording Copyright include record sales revenue (both digital and physical), and master use license fees (to use the actual recording of the song in film/tv/etc.).

If you sign a record deal, the record label acquires certain rights to the sound recording copyright.

Which Copyrights in a Song Are Most Valuable? 

In the pre-internet, pre-Napster world, the Sound Recording Copyright generated a great deal of revenue. This is because records sold a lot more, record deals were aplenty,  and all was good (not really, but you knew that). As the Dylan song goes, things have changed. To say that the sale of recorded music has taken a major hit is the understatement of the year. However, while the sale of music has gone down, the overall use of music (in film, tv, radio, internet, streaming, in restaurants, at sporting events, etc.) has never been higher.

When a song is used, i.e. played/aired/performed, it generates revenue for the songwriter. This means that the Songwriting Copyright is hugely valuable in the modern music industry. It is far more valuable than the Sound Recording Copyright in my opinion.

So what does this mean for you as an artist?

First: The ability to write songs has never been more valuable.

Second: While many artists think that a record deal as the main indicator of success, a strong publishing deal may earn you far more money and open a lot more doors in the long run.

Third: Be very careful when signing anything that mentions publishing or songwriting or an assignment of any rights as a writer.

Finally: While artists like Elvis and Frank Sinatra used to make a very good living performing/recording songs written by others, in today’s industry, those that can write their own songs (and put on an exceptional live show) are much more empowered to make a living from music. So long story short…keep writing. Because unless you make a lot of money from touring, it’s tough to be Ringo in 2017.

12 Comments on “The 2 Copyrights in a Song (or The Most Important Concept in the Music Business)”

  1. Nice article! My situation is 2writers have copywritten 30\% of the song. I completed the other 70%. Can I copyright the song or should I be added on with the other 2writers?

    1. Ideally, you have a Co-Writer Agreement in place that outlines the splits and gives you admin rights, so you don’t have to obtain both of their signatures every time you use the song.

      Kurt Dahl
      Entertainment Lawyer

  2. Pingback: Something in the Way: Online Guitar Tabs and Copyright Law - Generic Fair Use

  3. Hi, I have a (slightly unrelated) question about sampling/clearance that I was hoping you could answer.
    I recently sampled a record from 2011 that only exists on YouTube as a live performance – I’m fairly certain the record was recorded independently of a label.
    I’ve been having trouble tracking down the contributors to negotiate clearance, nor could I find the track on any publishing databases. But since the song literally only exists as shoddy live footage posted on YouTube by a random third party, is it absolutely necessary for me to get the sample cleared? Or am I opening myself up to possible legal repercussions if I were to release it on steaming platforms without prior consent?

    Please let me know what you think.
    Thanks!

    (Also, my version has a completely different beat, with a similar structure, & the over similarity is that both songs share the exact same hook, so the similarities are pretty obvious)

    1. Hi Greg. Without written permission, you are opening yourself up to liability. However, if you can show due diligence, in that you tried every avenue of contacting the owners/writers, then that would help mitigate your losses if they did try to sue in the future.

      Thanks

      Kurt Dahl
      Entertainment Lawyer

  4. I’m a recording engineer, producer, multi-instrumentalist member of a duo. For most songs we have, my partner writes the lyrics/basic chord structures and I write and play most the instruments and supporting melodies, in addition to recording the album. She’s not paying me to do so. I’m part of the group. We’re clear on splitting publishing 50/50, but she’d like to retain the copyright (what is filed with the government, not BMI) on the songs that she wrote the vocal melodies and lyrics to. For some songs we co-wrote she wants the share the publishing 50/50 because of my contributions as an instrumentalists/producer, but split the government copyright say 72/25.

    Can you split the copyright from the publishing as she’s suggesting. I don’t get that impression from articles like this I’ve read.

    So what does she get in owning the copyright exclusively? Rights to perform the songs live that I don’t should the group split? Ability to sell the song lyrics/melody to another author? Would my ability to use the songs on my website be limited? Do I have any protections, if as the sole copyright owner she were to basically re-record our music and have other musicians perform my melodic ideas or pay others to play my parts live?

    1. Sounds like you need to hire a lawyer to get a more in-depth opinion. I’m not sure of the distinction between publishing and the
      government copyright”. There is one songwriting split for each song, simple.

      Kurt Dahl
      Entertainment Lawyer

  5. Hello Kurt,

    Can you tell me if Sound Exchange is required to pay performance rights royalties to heirs, even if the estate of the deceased performer doesn’t recognize the heir as “legitimate”. I know in the US federal law mandates that song copyrights are divided 50/50 between surviving spouses and children. They do not pass through the estate.

    Is this also true of performance rights royalties? Can the biological child of the deceased performer be blocked from receiving his or her share of the income generated simply because the estate wants to claim 100%?

    Thanks for your response.

    Connie Bryson

    Sorry for the double post. My email addy dropped a letter.

    1. Hi Connie

      I have no idea. I would suggest contacting SoundExchange on this point. There is also some estate law at play here, which is out of my area of expertise.

      Kurt Dahl
      Entertainment Lawyer

  6. Hey Kurt,

    Just discovered your posts, love them!

    I have a co-writer on a song. Using form PA I registered the underlying work (words and music) under both of our names since it was a 50/50 effort. Getting ready to register the sound recording which I recorded. The co-writer had nothing to do with the sound recording. Didn’t appear on it or pay for in any fashion.

    My question is both a legal and ethical one. Should the co-writer have any claim to the sound recording copyright? The song is registered with ASCAP and he is given a 50% share of the writing credits. My only question is about the sound recording. Not sure what to do.

  7. Hi Kurt,

    Great site, great articles! I have a few questions regarding writing/publishing credit:

    1. If a producer has 15% “songwriting credit”, would that be registered as 7.5% writing and 7.5% publishing with ASCAP or would it be 15% writing and 0% publishing, as writing and publishing are each split into 50%. And with with BMI would it be 15% and 15% or 30% and 0% as both are 100%. Orrr, is it simply the writing and the artist keeps all of the publishing?

    2. As far as mechanical royalties, would the same 15% percent be of the 9 cent statutory rate per song sold?

    3. If a Synch Fee is paid to use the music in a TV show, I believe it is a 50/50 split between songwriter and Master owner, is this correct? If so, the 15% songwriter holder would receive 15% of the songwriting pay for this fee?

    After all of these years these questions still confuse me.

    Thank you in advance!!

    JB

  8. Hello Hurt,

    My friend and I have completed a song he wrote and I helped arrange, added instrumentation, did extensive editing, mixing, helped with the title of the song and did the mastering. The song is complete now and we’d like to register it, do a Song Writing Copyright and a Sound Recording Copyright that would be both our names and split the credit if given any in the future. Is that possible? We want to put both our names to each copyright. Thanks.

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