Music Recording and

Distribution Guide

Michael Tropp

November 21, 2023

MUS_CLAS 262 Music Technology and Media Production

Dr. Russell McCutcheon

What is copyright in music?.......................................................................................................2

What does copyright NOT protect?..................................................................................... 3
Music Licensing...........................................................................................................................4
Mechanical Licenses............................................................................................................. 4
Performance Licenses.......................................................................................................... 5
Synchronization Licenses.................................................................................................... 5
Current issues regarding licensing..................................................................................... 6
Am I doing this right?..................................................................................................................7
If you are creating your own music..................................................................................... 7
If you are recording someone else’s music........................................................................ 8
Let’s Make a Recording!............................................................................................................. 8
References................................................................................................................................... 9
 What is copyright in music?

Copyright laws can be confusing to read and digest. Here’s what you need to know as far as

music goes:

1. A copyright is in existence from the moment something is created.

a. This does not mean that you can whistle a melody and then sue someone who

notates it and puts it into a piece the next week. In order for something to be

copyrighted, it must be tangible, whether through sheet music, recorded audio or

video, or some other form where it can be clearly demonstrated as being yours

(Berklee, 2017).

b. You have a copyright for every form of your creation. This means that the holder

of the copyright of a piece has the right to make edits or changes, and they will

own the copyright of the edited version. Be careful, though, if you sell the rights

to your piece away, you are no longer legally allowed to make changes like this

unless it is written into your contract.

2. Copyright will protect your music for your lifetime plus 70 years, unless the copyright is

sold or passed to someone else.

a. You don’t need to worry about renewing a license to keep your work– so long as

you are alive and don’t sell the rights, the piece is yours.

In short, there are six exclusive rights granted to copyright holders (Berklee, 2017):

1. Right to make a copy of your work,

2. Right to create derivative works.

 a. Licensing it in other ways— make it a movie, a book, etc.

3. Right to publicly perform your work.

4. Right to sell your work.

5. Right to publicly display your work or derivatives.

a. For example, song lyrics on a t-shirt.

6. Right to perform the recording publicly by digital audio transmission.

a. Radio, TV, etc.

b. This also means that you have the right to take your music off of a streaming

service like Spotify or Apple Music.

What does copyright NOT protect?

● Titles

● Short phrases

○ Think of how many songs tell you to “put your hands in the air!”

● Company/performing group name

○ Though maybe not the best move for publicity purposes, this can be done!

● Style of music

● Rhythm, tempo, chord progression

 Music Licensing

Musicians fall into two categories when it comes to copyright: songwriters/composers and

performing/recording artists. These categories can mesh, but each holds a specific right.

Songwriters/Composers hold the rights to the lyrics and melodies. They often assign these rights

to a music publisher. The performing/recording artists hold the rights to the master recording, or

their recording, of a song. These rights are often assigned to a record label.

Mechanical Licenses

A Mechanical Royalty is a royalty paid to a songwriter whenever a copy of their song is made

(Modern, 2018). A copy can be anything from printing on a CD or vinyl, a digital download, or

even through streaming on an interactive streaming service like Spotify or Apple Music. These

do not apply to radio stations, as users do not choose the song, which makes playing a song on

the radio considered a performance (more on that below!).

Mechanical royalties are paid by anyone who obtains a mechanical license to copy your music,

from your record label to a cover artist. They are paid before the sale of the product– a license

must be obtained before they create the copies of your song, and regardless of how many they

sell, you will get paid.

Take note: If you are a member of a performance rights organization like ASCAP, BMI,

SESAC, etc. these groups do not take care of mechanical licensing. There are a variety of

agencies that can issue, distribute, and collect licenses and royalties.
The mechanical royalty rate in the USA is currently set at 9.1¢ per track or 1.75¢ for each minute

of playing time, whichever is greater.

Performance Licenses

Performance royalties are owed to the songwriter and publisher of a song when that song is

performed or broadcast publicly. This includes when songs are played in restaurants, waiting

rooms, at the grocery, etc. (Modern, 2019). It also includes things like school band, orchestra, or

choir concerts.

Often, songwriters, composers, or publishers will sign with a performance rights organization

like ASCAP, BMI, or SESAC, and that organization will create and issue licenses, collect the

royalties, and then pay the writer, taking a small fee, so that the writers do not need to worry

about getting proper licensing.

Many locations that have performances happen (whether in real life or simply through speakers

in the ceiling) will pay all of their fees at once at a point in the year, working with one of the

performance rights organizations to do so.

Synchronization Licenses

These licenses are granted by the composer and give the licensee the right to use music in a

visual piece (movie, TV, YouTube, etc.). Typically, sync licenses are paid as one-time fees to the
songwriter, but using a song in this manner can open up mechanical or performance royalties as

well, depending on how it is produced.

From time-to-time, a licensee will outright buy the rights for a piece if they don’t want to have to

pay royalties, which usually results in a bigger payment than just the sync license.

Current issues regarding licensing

As the 21st century has begun to rise, the technological revolution continues to amaze the world

with new innovations seemingly every day. A big part of this has been the creation of streaming

services and platforms like YouTube where users can post content and have it viewed by millions

across the globe in the span of a few hours. When copyright laws were created in the United

States, the world had to wait a little bit longer and put a bit more work into producing something

like a video with music set to it, or creating a cover of a song, making licensing easier to enforce

and ensure it was done properly.

A big question today is whether streaming services that allow you to store copies of music on

your device or social medias where users can save a video or re-post or re-mix it would be

paying both performance AND mechanical rights, as in essence, a copy of the music is being

made (Reese, 2001). This has been a debate for years (decades, really), and not much movement

has happened on it in the government, much to the chagrin of many.

 Am I doing this right?

The legal basis of copyright laws actually begins in the Constitution, which “directs that

Congress regulate copyright and patent laws, respectively, to serve human values and social ends

by promoting creativity and innovation,” (Evans, 2011). Music licensing and copyright is not

something to take lightly, as there can be serious legal repercussions if it is not done correctly.

If you are creating your own music

If your music is completely your own, free from sampling or any melodic lines that may be from

another song or piece, you should be good to go. Just remember to get licenses and maybe sign

with an agency or group to make sure these licenses are managed correctly so you can get paid!

If your composition includes sampling or music from other sources, there are unfortunately

“unclear judicial definitions, distinctions and interpretations for the role of substantial similarity

and what constitutes a de minimis use, a fair use, and a derivative work,” meaning that there are

some steps to go through before you release that song (Evans, 2011). There are frequent court

cases regarding things like this, so the most important thing to do when using someone else’s

work as a part of one of your own is to contact them and get their approval. Get the licenses you

need (mechanical for a recording, performance if you end up performing the song) and

understand that it may often be easiest to just accept no as an answer. Many artists or copyright

holders have the money to fight a case in court, so it is important to weigh the pros and cons of

deliberately using someone else’s work.

If you are recording someone else’s music

If you are making a cover or performing someone else’s song in public, refer to the licensing

portion of this guide to see what you need. Generally, you’ll always need a mechanical license to

make a song your own. The copyright holder cannot deny you this license so long as you pay

the fee, so legally, you are 100% allowed to make a cover of a song as long as you use proper

attribution and pay the license fee. Performance licenses are needed for any public performances.

Let’s Make a Recording!

Copyright law is confusing. Use as many resources as you need, including this guide but also the

internet’s vastness of ideas and legal jargon. Read the laws and make sure that you truly

understand what you are doing before you make a recording of a song. Using agencies to help

you can be an incredible time-saver, and they know what they are doing, so you can rest assured

that your music will get you the money it deserves.

If you are using someone else’s music for gain, get licenses. Not only is it a legal issue, it is just

morally right. You want fair compensation for your work, so you should fairly compensate others

for theirs. Mechanical, performance, and synchronization licenses are an important part of our

music community, and while they could certainly use some updating and revision, they are what

we have to support each other with, so we should use them as properly as we can. Copyright and

licensing doesn’t need to consume your every day, but you need to be aware of what it is and

how it will affect you and your music.

 References
Berklee Online. (2017, October 10). Copyright for Musicians: Copyright Basics | Part 1/6 |

Q&A | Music Business | E. Michael Harrington. [Video]. YouTube.

https://www.youtube.com/watch?v=tQbJLvli9AY

Berklee Online. (2017, October 24). Copyright for Musicians: The Six Exclusive Rights | Part

2/6 | Q&A | Music Business. [Video]. YouTube.

https://www.youtube.com/watch?v=BKKr6RVNJw0

Evans, T. M. (2011). Sampling, looping, and mashing . . . oh my!: How hip hop music is

scratching more than the surface of copyright law. 21 Fordham Intellectual Property,

Media and Entertainment Law Journal, 21, 843-904.

https://ir.lawnet.fordham.edu/iplj/vol21/iss4/1

Reese, R. A. (2001). Copyright and internet music transmissions: Existing law, major

controversies, possible solutions. University of Miami Law Review, 237-273.

https://repository.law.miami.edu/umlr/vol55/iss2/3

Scott, T. (2020, March 23). YouTube's copyright system isn't broken. The world's is. [Video].

YouTube. https://www.youtube.com/watch?v=1Jwo5qc78QU&t=2s

The Modern Musician. (2018, September 5). Music Licensing: Mechanical Royalties Explained.

[Video]. YouTube. https://www.youtube.com/watch?v=5rZw_xu8_Jw

The Modern Musician. (2018, July 23). What is Synchronization License & Sync Licensing?.

[Video]. YouTube. https://www.youtube.com/watch?v=rnUtUq25ECI

The Modern Musician. (2019, January 9). What are Performance Royalties and Performance

Rights Organizations?. [Video]. YouTube.

https://www.youtube.com/watch?v=3LQZokWsh6Q
Tyler, N. S. (2012). Music piracy and diminishing revenues: How compulsory licensing for

interactive webcasters can lead the recording industry back to prominence. University of

Pennsylvania Law Review, 161, 2101-2150.

https://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=1035&context=penn_law_r

eview