Breaking Into Music Law: Your Essential Guide

Music law is a complex and fascinating area of the legal profession, and one that requires a unique blend of business and legal skills. With the music industry being a business, any song that is recorded becomes a product, and that product needs to be protected. This is where music law comes in. Music law covers a range of areas, from copyright and intellectual property to contracts and licensing. It's an area that requires a deep understanding of the music industry and the ability to navigate the complex web of rights and royalties. Breaking into music law can be challenging, but with the right combination of skills, knowledge, and experience, it can be a rewarding and exciting career path.

Copyright law and intellectual property

Copyright law grants creators of musical works exclusive rights to reproduce, distribute, perform, display, or license their work. It protects both the musical composition, including notes, melodies, rhythms, and lyrics, as well as the sound recording itself. Once a song is recorded or written down, copyright protection is automatically granted, and it covers two main areas: the sound recording and the musical composition. The sound recording copyright is associated with a specific recording, and ownership is typically held by the artist or assigned to their record label. The musical composition copyright, on the other hand, pertains to the song's music and lyrics and is usually owned by the songwriter(s) or a music publisher representing them.

Every time a song is played on streaming services like Spotify or Apple Music, royalties are generated and paid to the copyright owner. Similarly, royalties are due when music is played on the radio, in restaurants, bars, or other public spaces. This is where performing rights organizations (PROs) like ASCAP and BMI come into play, collecting royalties on behalf of music publishers and songwriters and offering licenses to businesses for playing music in public.

Copyright law also protects musicians from the unauthorized use of their music in various mediums, such as YouTube videos, commercials, television shows, and movies. To use copyrighted music in these contexts, a licensing fee must typically be paid to the track's copyright owner.

Understanding copyright law is crucial for musicians and industry professionals to ensure fair compensation, prevent financial losses due to infringement, and adapt to the evolving digital landscape. It also empowers artists to grant permissions for the use of their work while receiving appropriate remuneration.

Sampling and licensing

Music sampling refers to the act of taking a portion of a pre-existing sound recording and reusing it by incorporating it into a new song. This is a common practice in several music genres, including hip-hop, electronic dance music (EDM), and dance music. Artists intending to use music sampling in their work must be aware of the relevant laws and licensing requirements to avoid copyright infringement.

In the United States, music is automatically copyrighted, and any use of pre-existing music created by someone else requires a license, known as a derivative work license. There are two separate copyrights involved in a music recording: the copyright in the song, which covers the musical composition and lyrics, and the copyright in the particular sound recording of that composition. To legally sample a portion of a song, artists must obtain permission from both the copyright owner of the song (usually the music publisher) and the copyright owner of the specific recording of that song (typically the record label). This process is known as obtaining "sample clearance."

To obtain sample clearance, artists should first identify the copyright owners of the song they wish to sample. They can do this by searching the U.S. performing rights society databases, such as ASCAP or BMI, which list the relevant songwriters, producers, and contact information for the music publisher. Once the copyright owners are identified, artists should request a sampling license, providing details such as the length and specific portion of the song they plan to sample, how they intend to use it, the expected distribution methods, and the number of units to be distributed.

The decision to grant a sampling license rests solely with the copyright owners, and they may set their own terms for clearing a sample. The licensing fee may depend on various factors, including the commercial success of the original song, the notoriety of the original and sampling artists, the length and amount of the sample, and how it will be distributed and used in the new recording. In some cases, the original copyright owner may acquire an ownership interest in the new recording, especially if a substantial portion of the original track is used or the artist is well-known. Alternatively, licensing deals may be made on a flat-fee basis, where the sampling artist pays a one-time fee without any additional royalties or ownership rights in the new work.

It is important to note that unlicensed use of sampled material can result in legal repercussions. Copyright infringement can lead to lawsuits, damages, and blockage of song distribution. Therefore, artists should always ensure they have the proper clearances and licenses before releasing music containing samples.

Contracts and negotiations

Band Contracts

It is essential for band members to sign a contract that regulates tax and legal matters, such as income distribution, insurance, possession of equipment, and voting rights. This contract also helps in case of legal disputes regarding the band's name, withdrawal of members, or the split of the group.

Transfer of Rights

Solo artists who hire external musicians or singers should enter into a contract authorising the "transfer of rights". This contract regulates fees, profit-sharing, and the type of related rights granted or transferred to guest musicians. The intention to transfer copyright should be clearly stated, and the more specific the written language, the better.

Contracts with Collection Societies and Publishers

Composers and lyricists should get in touch with a collection society and enter a "contract of assignment". Most countries have their own collection societies, such as SUISA and GEMA, which work together globally to collect royalties internationally. It is important to decide in advance who will take copyright shares as an author to avoid later disputes. Authors and lyricists can also transfer part of their copyright to a music publisher through single title or exclusive author contracts.

Record Label Contracts

By signing with a record label, artists transfer the "rights in the recording" to the label. Classic record deals are complex documents that cover manufacturing, distribution, and marketing. It is essential to understand all aspects of the contract, including royalty rates, hidden royalty deductions, and release commitments.

Distribution Contracts

These contracts are typically signed between record labels and distributors and can be attractive to musicians as they take care of the extensive background work. However, this is usually in exchange for ownership rights. Independent artists can also make direct distribution contracts with aggregators, usually only transferring the right to distribute content to partner shops, both digital and physical.

Guest Performance Contracts

At concerts and gigs, a guest performance contract between the promoter and the artist or their manager is essential. These contracts include the location and length of the performance, fees, duties of the artist and promoter, technical riders, costs, transport, logistics, cancellation agreement, insurance, and collection society contributions.

Artist Management and Agency Contracts

Managers and booking agents support an artist's business activities and often need special legal authorisation. An artist management contract outlines the relationship between the artist and manager, stating management duties, compensation, and any violations of the contract. Booking agencies assist artists in finding and securing bookings for live performances, with the agency contract defining the terms of cooperation and compensation for the agent.

Music Licensing Contracts

Sync or music licensing contracts are agreements between owners of songs and parties seeking to use the music. These agreements license the synchronisation of copyrighted music with other content, such as films, television series, advertising, video games, and theatrical productions. Licensing contracts should specify how the music will be used, the length of the segment, and monetary compensation for the artist.

Performance rights and royalties

Performance rights refer to the right to perform music in public. This is part of copyright law and requires payment to the composer/lyricist and publisher of the music, with royalties generally split 50/50 between the two parties. Performances are considered "public" if they take place in a public place with an audience outside of a normal circle of friends and family. This includes concerts, nightclubs, restaurants, and other venues. Public performances also include broadcasts, cable television, radio, and any other transmitted performance of a live song.

In the United States, broadcasters can obtain permission to use music in one of two ways. They can either obtain a license directly from the music's copyright owner (usually the publisher) or obtain a license from a performing rights organization (PRO) such as ASCAP, BMI, or SESAC, to use all the music in their repertoires. PROs like ASCAP and BMI have been crucial in ensuring that composers and publishers are compensated for public performances of their music.

To obtain the right to perform music in public, one must obtain permission from the copyright holder or a collective rights organization. This permission typically comes in the form of a license, which can be obtained directly from the copyright owner or through a PRO. PROs offer "blanket licenses," which allow licensees to perform any song from their catalog for an annual royalty payment. The price of a blanket license varies depending on factors such as the size of the venue and the frequency of musical performances.

In addition to PROs, there are also music licensing platforms like Pandora CloudCover, which offer an alternative to traditional PROs. These platforms provide businesses with access to a catalog of songs that can be played without worrying about copyright infringement for a small monthly fee.

Business and legal skills

Understanding the Music Business

The music industry is multifaceted, encompassing various sectors such as recording, publishing, management, and live events. Each sector has its own unique business models, revenue streams, and legal considerations. Aspiring professionals in music law should develop a strong understanding of the industry's inner workings, trends, and challenges. This includes familiarity with industry-specific terminology, standard contracts, and revenue streams such as streaming, licensing, and merchandise sales.

Contract Law and Negotiation

Contract law is a fundamental aspect of the music industry. Music lawyers must be adept at drafting, reviewing, and negotiating various types of contracts, including recording agreements, publishing deals, management contracts, licensing agreements, and performance contracts. Strong negotiation skills are essential, as lawyers need to advocate for their clients' interests and ensure favourable terms in these agreements.

Intellectual Property Law

Intellectual property (IP) law is critical in the music industry, as it protects the rights of creators and ensures they receive proper compensation for their work. Music lawyers should have a deep understanding of copyright law, including ownership, infringement, and licensing. They should also be familiar with trademark law, as it relates to band names, logos, and merchandise. Additionally, knowledge of neighbouring rights, which protect the contributions of performers and producers, is important.

Entertainment Law

Entertainment law covers a broad range of legal issues within the entertainment industry, including music. It involves understanding the unique aspects of representing creative professionals, such as contractual matters, revenue streams, and industry-specific regulations. Entertainment lawyers often deal with issues related to royalties, licensing, defamation, right of publicity, and labour laws specific to the industry.

Networking and Relationship Building

Breaking into music law requires building a strong network within the industry. Attend conferences, seminars, and industry events to meet potential clients, colleagues, and mentors. Seek out opportunities to collaborate and work with artists, managers, and industry professionals. Developing these relationships can lead to future job opportunities, referrals, and a deeper understanding of the industry.

Developing strong business and legal skills is essential for breaking into music law. Aspiring music lawyers should focus on understanding the industry, strengthening their contract law and negotiation skills, mastering intellectual property law, and gaining expertise in entertainment law. Additionally, building a solid network of industry connections will increase their chances of success in this competitive field.

Frequently asked questions