Notes on Copyrights, Licensing, and Originality in Music

IP as a Competitive Tool in Firms and Countries

• IP is a key competitive asset for both companies and nations; catalogs (a term for copyrights) reflect the value of a company or country’s recorded music market.

• Without copyright, having many tracks or hits is meaningless; value comes from the ability to license and monetize those copyrights.

• Emerging markets are increasingly entering IP competition and building large IP portfolios.

• The lecture will explore the copyright bundle and how licensing this bundle generates revenue.

The Copyright Bundle of Rights

• Copyright is a bundle of rights, especially in music:

  • $ext{Reproduction right}$: control the making of copies

  • $ext{Public performance right}$: control performances in public

  • $ext{Distribution right}$: control distribution of copies

  • $ext{Derivative works right}$: control adaptations and remixes

• These rights together enable monetization through licensing and enforcement.

Generational Storms and Disruptive Technologies

• History shows roughly once per generation a disruption hits monetization of copyright (a “storm”).

• The last major disruption was the file-sharing era (peer-to-peer, Napster/BitTorrent). End users could access works embodied in copyright as streams or mp3s with little or no payment.

• The past ~15 years have been spent rebuilding payment streams in various ways.

• The next potential generational storm: AI training uses of copyrighted works without licensing or monetization—unlicensed scraping for training data. The lecturer flags this as an area of interest for future discussion.

The Song vs. The Sound Recording: Terminology and Language

• Language matters: distinguish between the song/composition (rights in the underlying musical work) and the sound recording (the actual recorded performance):

  • Song/Composition: works, titles, melodies, lyrics; owned by the songwriters/publishing rights.

  • Recording/Track/Master: the particular recorded performance; owned by the recording owner (usually the record label or artist).

• Misuse of terms can lead to confusion in licensing and ownership.

Origins and Originality in Copyright

• A key concept is that copyright protects original skill, labor, and effort, not merely the idea or generic elements.

• Some parts of a song may be non-protectable (generic, non-original elements like common chord progressions or very short phrases).

• In recordings, there are generally no generic parts: once a recording is fixed, each part is original because it reflects the specific recording process.

• The core test: is there original skill, labor, and effort? If yes, copyright protection is likely, provided other criteria are met.

• If something is only an idea (not fixed in a material form), it typically isn’t protected by copyright.

Fixation and Material Form

• For copyright protection, the work must be fixed in a tangible medium (e.g., notated, recorded, or performed in a way that is fixed in a medium).

• Example: software code is a literary work; the function may involve patent considerations, but the code itself is protected by copyright.

• In practice, the fixed form is crucial for protection; ideas or plans not fixed in a material form may not be protected.

The Four-Stage Test for Copyrightability (Four Questions)

• Almost all jurisdictions use a sequential test to determine if a work is protected:
  1) Does the work fall within a protected category?
  2) Is the work more than an idea (i.e., is it fixed in a material form)?
  3) Does the work contain originality (the author’s original skill, labor, and effort)?
  4) Is the author a qualifying person from a qualifying country?

• You must answer “Yes” to all four to establish copyrightability.

Primary Works: Categories of Protected Works

• Primary works are original works themselves. The major protected categories include:

  • Literary works: original written works (not limited to long books; even short texts like schedules, exam papers, or poetry can be protected if sufficiently original and fixed).

  • Dramatic works: works capable of performance (e.g., choreography and ballet; stage show designs; TV formats can be argued as dramatic works but originality is often the limiting factor).

  • Musical works: original music (notes, melodies, and lyrics); copyright can cover even very short musical works and sounds (e.g., jingles, startup sounds like Windows boot, Star Wars lightsaber sound when modified are used as examples).

  • Artistic works: photos, paintings, sculptures, and even architectural drawings; tattoos are discussed as a special and evolving issue.

• Note on examples: a TV schedule or football match listings can be protected as literary works; a haiku or short lyric can be protected if it shows sufficient originality.

Non-Protectable Elements and Exceptions

• Names (e.g., person names) are not protected by copyright; they can be protected by trademarks.

• Song titles are generally not protectable by copyright unless the title is unusually substantial or becomes a key part of the lyric.

• Parody: usually requires permission; fair use in many territories is limited and rarely allows the use of substantial portions of a copyrighted work. In practice, parodists often seek permission.

• The concept of “inspiration” does not equate to a copyright defense; copyright liability is strict and does not require intent.

The Fixed and Original Elements in Songs and Recordings

• If two people co-create a song, they may be co-authors unless there is a pre-existing agreement to divide ownership differently.

• Co-authorship requires evidence of intent to co-create (e.g., emails, notes about joint writing sessions). Absent explicit agreement, the default is equal co-authorship for contributions to the song.

• In many cases, writers seek repeat opportunities to co-write; negotiations and contracts govern the division of rights, royalties, and credits.

Primary vs Secondary Works and Their Durations

• Primary works (the works themselves: songs, writings, films, photographs) are typically protected for the life of the author plus 70 years in many jurisdictions.

• Secondary works (sound recordings, films, etc.) are copyrighted as well but often have different durations. In Europe, sound recordings typically have 70 years from release; in the US it is 95 years from release.

  • $ext{Duration of protection for primary works} = ext{life of the creator} + 70 ext{ years}$

  • $ext{Duration of protection for sound recordings (EU)} = 70 ext{ years from release}$

  • $ext{Duration of protection for sound recordings (US)} = 95 ext{ years from release}$

• The recording copyright often dominates the revenue stream, but it also carries costs (recording costs, marketing, promo).

• Songwriting (publishing) tends to be lower in ongoing cost and can be more admin/collection heavy; publishers focus on current roster and catalog maintenance. Catalogs can be challenging to manage, especially for large, global catalogues; regional catalogs may receive less attention than major Anglo-American catalogues.

Categories and the Role of Registration

• Registration of copyright is not mandatory in many countries; some jurisdictions use registration for enforcement, others for benefits like legal remedies, but protection can exist without registration.

• The four-stage test applies regardless of registration; registration is not a universal requirement for protection.

The Four-Stage Test in Practice: Examples and Debate

• The lecture discusses examples of what constitutes originality and protectability, including:

  • Short musical works and jingles showing originality despite minimal material.

  • The distinctiveness of top-line melodies as the more protectable element.

  • The role of generic elements (e.g., common chord progressions) in limiting protectability.

• The distinction between ideas and fixed expressions is central to copyright; ideas themselves are not protected, but fixed expressions of those ideas are.

Examples and Real-World Scenarios Discussed

• Taylor Swift’s re-recordings (Taylor’s Version):

  • She re-recorded earlier albums, partly due to contractual rerecord restrictions rather than copyright law itself.

  • If a fan-drafted version is used, the artist may own the song rights, allowing them to decide which recording version is used in licensing contexts.

  • When a star can compel licensing to use their own version, they can steer usage and revenue through their own recording.

  • The discussion includes the impact of fan bases (e.g., Swifties) on streaming numbers and the legal/creative leverage artists may have in changing licensing dynamics.

• Sync licensing and conditional licenses:

  • When using songs in film/TV, the song owner may be able to require the use of their own recording in the sync license, limiting usage of other recordings.

• Parody and fair use:

  • Parodies generally require permission; fair use is rarely a complete defense for extensive reuse of original copyrighted material.

• TV formats and dramatic works:

  • TV formats are often licensed as formats (a form of original dramatic work) rather than as a direct copyright on content; licensing includes brand and format elements.

• Big Brother example and format licensing:

  • When recreating a show in another country, licensing the format is typical; simply copying the premise without license risks unfair competition and copyright issues.

• Tattoos and copyright ownership:

  • The creator (tattoo artist) is usually the copyright owner of the tattoo; the person with the tattoo is generally a licensee or user of the image, not the owner of the copyright.

  • Tattoos can raise complex issues around public display and publication of photographs featuring tattoos.

• Maps and open-source maps:

  • Professional maps are protected; open-source or GIS maps involve collaborative authorship and can still be copyrighted, though attribution and licensing terms (e.g., credit) are important.

The Role of Ideas, NDAs, and Protecting Early-Stage Innovations

• Ideas alone are not protectable by copyright; they can be protected via contracts (e.g., non-disclosure agreements) when communicating with investors or collaborators.

• In software contexts, code is protected by copyright, while the idea of a program may be unprotected unless fixed in code; different code implementations can achieve the same function.

• NDAs are important tools to protect early-stage ideas when sharing with potential investors or collaborators.

Unfair Competition and Trademark Considerations

• Even when copyright does not apply, unfair competition and trademark law can protect brand identity and prevent confusing or misleading use of another’s brand, name, or distinctive design.

• Tattoo, makeup, and hair design discussions illustrate how branding and perception can intersect with copyright and trademark issues.

Practical Takeaways for Students and Practitioners

• Always distinguish between song (composition) and recording (sound recording) rights; licensing and revenue streams differ accordingly.

• The music industry relies on a mix of primary and secondary works; each has different protection terms and monetization strategies.

• The four-stage test is essential to determine if a work is protected; ensure you can demonstrate fixation, originality, and proper authorship from a qualifying jurisdiction.

• Keep in mind that ideas are not protectable; protect the fixed expression and secure proper licenses when necessary (covers, samples, or interpolations).

• In practice, contracts (not just copyright law) govern many rights, including rerecord restrictions, co-authorship splits, and format licensing.

• When dealing with open-source or collective works (maps, collaboratively created content), attribution and license terms matter for reuse.

• Ethical and policy implications include the balance between protecting creators and enabling broad societal access to culture, with ongoing debates around AI training data, fair use, and the public good.

Quick References and Formulas

• Primary works duration: $ext{Duration} = ext{life of the creator} + 70 ext{ years}$

• Secondary works duration (sound recordings):

  • Europe: $ext{Duration} = 70 ext{ years from release}$

  • United States: $ext{Duration} = 95 ext{ years from release}$

• Fixed in material form: a requirement for copyright; ideas alone are not protected.

• Infringement test (strict liability): ask whether a copy of an original part exists, regardless of intent.

Closing Reflection

• The music business sits at the intersection of artistic creation and legal protection; understanding the distinction between song and recording rights, the concept of originality, and the mechanics of licensing is crucial for effective monetization and risk management in today’s global market.