The 2 Copyrights in a Song (And How To Make More Money From Them)

kurt_dahlArticles, Lawyer News39 Comments

Many artists I work with have a tough 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 at play here.

In every recorded song there exists two main copyrights: one in the written song itself (the Musical Work 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 Musical Work Copyright

Whoever writes the composition is considered the owner of the Musical Work Copyright. For more on What Constitutes Songwriting, see my article here. The revenue streams generated from the Musical Work 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 ‘synced’ to film or television), and others.

If you sign a publishing deal, you are giving up certain rights in your Musical Work Copyright. For more on the different types of publishing deals, see my article here. If you don’t write your own songs, you are not entitled to revenues from the Musical Work Copyright, only the Sound Recording Copyright.

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.

How Can You Make More Money From Your Song Copyrights?

Some of the revenue streams generated from the Sound Recording Copyright include:

  • Record Sales: This includes sales from traditional brick-and-mortar stores, physical sales through Amazon and the like, physical sales at live shows, and digital sales through iTunes, Bandcamp, etc. This revenue stream continues to decrease each year, but if you manage your catalog online correctly, can still be a significant income stream.
  • Streaming Royalties: Digital royalties are generated when music is streamed through services such Spotify and Apple Music. The last study I read found that over 90% of master revenues in the music industry are from streaming. I would guess that this number will continue to increase.
  • SoundExchange Revenues: Revenues generated from so-called “non-interactive digital radio” such as Pandora and SiriusXM are collected by an agency called SoundExchange. SoundExchange has paid out more than $7 billion in royalties since their first distribution, and their website has a search function to see if you or your band are owed money.
  • Master Use Licenses: When a song is used in film or television or in a commercial, the owner of the master recording is paid a “Master Use License”. The amount of the master fee depends on the bargaining power of the parties involved, and how badly the producer wants the song in their production. Use of music in film, TV, etc. requires two licenses, a Master Use License from the master owner and a Sync License from the publisher or songwriter.
  • Neighbouring Rights: Paid to the performers on a recording rather than the songwriters (session players, singers, producers and record companies). Radio or TV broadcasters pay a tariff to collection agencies in order to compensate the performers and the record labels that own the sound recordings. In Canada, register with one of ACTRA, Artisti, or MROC (not all three), and they will work with Re:Sound to distribute these royalties to you.
  • Private Copying Levy: When consumers purchase blank CDs and like media, they pay a fee known as a private copying levy, which was created to compensate music rights holders for private copies made of their music. In Canada, sign up at www.cpcc.ca to access these revenues.

Some of the revenue streams generated from the Musical Work Copyright include:

  • Public Performance Revenues: The owner of the Musical Work Copyright owns the exclusive right to perform or authorize others to perform the music publicly. These public performance royalties are collected and administered by a collection agency such as ASCAP or BMI in the USA, and SOCAN in Canada. “Performance” in the music industry can include radio play, live performance of your songs by another musician, performance in a broadcast (television, sporting event, etc.), performance on the Internet, etc.
  • Mechanical Royalties: The author of a song has the right to be paid every time a copy of that song is made (or “mechanically reproduced”). So the record label or individual reproducing the song must pay the writer a fee per song, per copy manufactured. In Canada that fee is 8.1 cents and determined by an agreement between the recording and publishing industries, and the in US it is 9.1 cents and determined by legislation. Sign up with CMRRA in Canada and the Harry Fox Agency in the USA.
  • Synchronization Licensing Fees: Similar to a Master Use License, but for the writer and owner of the Musical Work Copyright. The synchronized song also generates performance income every time the television show, commercial, or film containing the composition is performed. In other words, the “backend” revenue from performance royalties can often far outweigh the “up front” sync fee, if the television show or film is played thousands of time around the world. A good example is the Cheers theme song “Where Everybody Knows Your Name”, which was written by struggling songwriter Gary Portnoy. The up front synch fee paid to use the composition in Cheers was quite modest, but the “backend” performance royalties as a result of Cheers airing so many times in so many countries has made Mr. Portnoy a millionaire several times over.
  • Private Copying Levy: Similar to the Blank Tape Levy, but paid to songwriters. Sign up at www.cpcc.ca.
  • Print Royalties: Print income is derived from printed copies of a song, from the sheet music. Sheet music consists usually of the melody notes and the lyrics which may accompany those notes. The copyright owner or administrator can license the right to print such sheet music to print publishers, in exchange for royalties.

There are more sources of revenue out there, but this is a solid starting point. The music industry – and the way in which you can earn a living in it – will continue to evolve. As the saying goes, the only constant is change, particularly in the music business. Try to stay up to date on these developments and revenue streams, and reach out to me with questions along the way.

39 Comments on “The 2 Copyrights in a Song (And How To Make More Money From Them)”

  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. 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

  3. 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

  4. 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

  5. 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.

  6. 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

  7. 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.

  8. Absent a written agreement, what are a separated partner’s rights to a partnership’s unpublished material?

    Scenario: A band, we’ll call band X, operating as a general partnership with no written agreement wrote and recorded 10 songs for an album. All four members of the band contributed equally to the writing of the 10 songs. The recordings where funded by band money. The remaining costs for the recordings where split evenly between all four members. Before the album was finalized, two members agreed to walk away from band X and give full ownership of band X and its assets to the remaining two members (proved via text messages).

    The issue is as follows. The two members who voluntarily walked away from band X have started another band, which we’ll call band Y. The two separated members, who have access to band X’s songs through demos, are now using the recorded, unpublished songs from band X and are planning on releasing them under their new band Y.

    Based on the scenario described above, what rights, if any, to a partnership’s unpublished material would the separated partners retain if they voluntarily walked away from the partnership? i.e. do the separated partners have the right to exploit, reproduce, sell, license, distribute, or display band X’s recorded, unpublished songs?

    1. The general rule is that any co-writer can stop the other co-writers from using the compositions without their written consent. So band Y can’t use the compositions without your consent. Same with the master recordings.

      Kurt Dahl
      Entertainment Lawyer

  9. oooh, please answer! 🙂

    I wrote the lyrics and composition to a song. My band members and I recorded it. As a way to pay them, I offered to add them as writers to the song since they did come up with their parts. From what I understand all writers also have publishing but I want to keep 100% publishing. Is that fair? What type of agreement is needed for this?

    Also, you confused me a little with this article. I thought a SR covers the lyrics and compositions to a song as well. Are you saying that a PA should be done to cover the lyrics and composition and then an SR should be completed to cover the sound recording?

    Please clarify. And thank you so much for your time. I do understand that you are busy. Give thanks!

    1. Hi Shawn,

      If you want to cut them in on publishing revenues but retain all publishing rights, I would draft some sort of Band Agreement or Collaboration Agreement where it’s acknowledged that you are the 100% writer, but once you receive publishing revenues every quarter or whatever, you will give each band member X amount of that revenue. So they aren’t entitled to publishing/songwriting ownership, but are entitled to publishing/songwriting revenue.

      Hope this helps

      Kurt Dahl
      Entertainment Lawyer

  10. To add clarification to that last post, my band members are musicians. They did not write the lyrics or the composition to the other song. They created their particular parts for their instruments on the song which would really be work for hire. Instead of doing a work for hire agreement, I am including them as writers of the composition.

  11. I really pray that you will answer me.

    Hi Kurt, Merry Christmas. I have seen various videos on YouTube and other articles and I don’t have an answer to my particular situation…I am, in this case the singer of a project. We have recorded many songs over a 2 year period. My friend wrote the songs and lyrics. He paid for the sound recording (the musicians and the sound engineer). I haven’t been paid, yet. We are getting to the point where he is ready to start releasing the recordings and he asked me what I wanted out of it. I want to ask for what is right and fair, and he says he wants the same thing, as we want to continue a working relationship. What is fair to ask for, as a singer who has put in the styling and the instrument? Thanks a MILLION and Happy Holidays!

  12. Kurt, thanks for your website. Two questions:

    (1) What is a good way to find out whether a written song is under copyright or in the public domain? For example, Robert Johnson’s “Cross Road Blues”.

    (2) Can you make a few comments about how the songwriting copyright applies in instances like (a) new lyrics for a song written by someone else; (b) a very different arrangement of the music to such a song; and (c) a medley comprising an existing song by someone else and an original song or a substantial, extended coda which is entirely original?

    Thanks again!

  13. Hello, I have a question but first I need to explain a little bit the case.

    I am the songwriter of my new album 10 tracks, I signed with a record company to provide the masters of my songs for 3 years, but we agreed that they will only contribute online, such as distribution on all platforms, to their youtube channel etc. (note that they gave me ISRCs).

    I will release a physical product as well (LP and CD) and we agreed that this will be my own business, (order, artwork etc), the physical products owns to me 100% / for their online contribution we agreed 50-50.

    And the question is how do I have to write down the standard copyright text on the spine and the back of the pack?

    1. Hmm. Interesting situation. I would have to see your deal with the label but it sounds like physical product is all you, but who owns the underlying copyrights? I think it might just be safe to put their info on the physical product, as I don’t see how it would hurt you.

      Kurt Dahl
      Entertainment Lawyer

  14. I am the 100% songwriter and copyright holder of a song about racial harmony that a major rockstar (Queen guitarist Brian May) plays guitar and sings on that I recorded and put on my 2007 record. I am currently exploring doing an updated new production of the song, but incorporating the Brian May parts which I have his blessing to use. Would it be too much, in your opinion, to give a new producer 50% of the new sound recording copyright (no publishing) in exchange for doing a no fee production using my existing, obviously valuable in terms of who performed them, parts?

    1. Hmm. That depends on the caliber/level of the new producer. I.e. if their normal rates are $500 or $5000 per song, that changes my answer significantly. In other words, what price are you putting on giving up half of your recording copyright, and is it worth it? Side note: VERY cool that you’ve worked with Brian May!! One of my fave guitar players of all time. One of the greatest guitar tones in rock! Also seems like a cool guy. Please confirm 🙂

      Kurt Dahl
      Entertainment Lawyer

  15. Hi Kurt, I am the 100% songwriter and copyright holder of a song about racial harmony that a major rockstar (Queen guitarist Brian May) plays guitar and sings on that I recorded and put on my 2007 record. I am currently exploring doing an updated new production of the song, but incorporating the Brian May parts which I have his blessing/permission to use. Would it be too much, in your opinion, to give a new producer 50% of the new sound recording copyright (no publishing) in exchange for doing a no fee production using my existing (obviously valuable in terms of who performed them) parts?

    1. Wow sounds cool. Love Brian May (that tone!!). Giving up 50% of the recording copyright seems like a steep fee. I always find it’s better to just pay the producer fee if you can afford it, as the recording may be worth a lot more in the long term! It’s always short term vs. long term thinking though, and depends on what the producer fee would be! Either way, send me the song when done, can’t wait to hear it.

      Kurt Dahl
      Entertainment Lawyer

  16. Kurt,
    THIS IS IMPORTANT.

    I’m the sole recording producer/singer/songwriter of my music (basically everything), have finished an album in my own home, at my own expense and, I have attained copyrights to the whole album. If i go to a major recording studio and re-record the album (at my own expense again…) Do i have to re-copyright the album if its not recorded note for note? In all honesty i know there will be things that would come out different but, isn’t that just a different version of the copyright/song/album?? Hope you are well.

    Best,
    CM

    1. Hi CM

      You definitely don’t have to re-copyright the compositions, as they’re the same. As for the masters, technically they are new masters (perhaps with different performers and a new studio etc), so I would take a few minutes to register their copyright again. But totally up to you.

      Kurt Dahl
      Entertainment Lawyer

  17. Hi Kurt,

    I’m a drummer.

    I recorded three songs with my band, they were presented to me as complete demo songs with sampled drums on them,our guitarist wrote the structure and our singer wrote the lyrics and melody.

    I rearranged the drum parts and gave them some “reality”, and we re-recorded the three tracks.

    The studio cost were split between myself and the two songwriters, it’s a band so no session fee was mentioned.

    I have uploaded them via an online distributor to the major streaming services, they charge a yearly fee but claim no percentage. I paid the fee.

    There is now a potential dispute about who gets what share of any potential earnings from the streaming/online sales, and I think a lack of understanding about who owns the songs.

    Who could legitimately claim what?

    Many thanks,

    GD

    1. Wow, good question. Sounds like a Band Agreement is needed that clarifies the rights/responsibilities of each member. Technically you could each stop the others from exploiting the songs, so that needs to be dealt with. I would suggest that each of you should recoup your costs before splitting profits. But bottom line, you need something in writing between the three of you. Email me to discuss further.

      Kurt Dahl
      Entertainment Lawyer

  18. Hi. Thanks very much for providing such a nice service for musicians and writers. My scenario I’m sure is really common, but I haven’t been able to find an answer online anywhere. Hope you can help. I’m currently recording an album where I wrote all the music and the singer wrote all the lyrics and his vocal parts. If we register these songs together, and in the future the band broke-up and our record sank into obscurity, would we retain our rights to our music and lyrics respectively? In other words, could the singer use his lyrics in another song later, or I decide to use my instrumental composition with different lyrics down the road? Basically does the joint application bind the lyrics to these specific music compositions? Thanks very much in advance.

    Jeff C

  19. Hi Kurt,

    Thank you for the article. It was really helpful. I wanted to get rights for a remix and after having someone analyze the track, they told me that a mechanical license would suffice. Is that possible for a remix?

    Jas

Leave a Reply

Your email address will not be published. Required fields are marked *