[This article was written by guest contributor Louis Matteo from Loudr] Music is a universal language that connects all of humanity, bridging language barriers, cultural differences, and all seven continents. But unbeknownst to most outside of the music industry, the making of music is a complex journey in which creative processes and copyright law operate in parallel.
1. The Creative Process
Let’s start at square one with a hypothetical example of how a song is created and how the creators of the song take step to make the most of their business interests.
A song begins its journey in the mind of the songwriter(s) who pen lyrics and melodies, creating a copyright under United States copyright law the very moment that these unique elements are fixed in a tangible medium. “Hypothetical Hit Song” is written by four songwriters who take the added step of registering their intellectual property (the lyrics, the melody and the song structure) with the U.S. Copyright Office.
By adding this work to the public record, the songwriters ensure that the work is eligible for full protection under the copyright law.
2. The Business of Music
If a music publisher believes in “Hypothetical Hit Song”, then the company can strike a deal with the songwriters to purchase the songwriters’ entire catalogs, to purchase the individual song outright, or to just administer (handle the paperwork for) the rights needed to monetize the song in media.
Once a music publisher has the right to exploit - that is, monetize - the copyrights, it can explore a variety of options. It can collect revenues from streaming services whenever a recording of the song is streamed. It can license the exclusive right to be the first to record and release the song to another artist. It can license the song to production companies for use in film, television and advertising.
This is the path that songwriters follow to big bucks, or at least a few bucks.
3. The Legalities of Music
Now, let’s get out of the hypothetical and into the real world. When a songwriter or music publisher owns music rights, and someone decides to skip out on the business deals and use the music without a license, that songwriter or music publisher has a claim for copyright infringement.
Here are a few high profile examples of individuals or groups who used a copyrighted work without obtaining a license.
• In June 2014, Monster Energy used “(You Gotta) Fight For Your Right (To Party!)” by Beastie Boys in a promotional video. Under U.S. copyright law, Monster Energy would have needed to obtain a synchronization license from the music publisher before using the song. The Beastie Boys then sued Monster Energy for copyright infringement and false endorsement and received $668,000 in damages in June 2015.
• During the past two presidential races, candidates have used popular songs during campaign videos and at events. Songwriter and 80s pop artist Cyndi Lauper asked the Obama campaign to stop using her song, even though Lauper was an Obama supporter. Her song “True Colors” was used in negative television commercials targeting opponent Republican candidate Mitt Romney. Lauper was displeased that she was not asked for approval and noted, “Mr. Romney can discredit himself without the use of my work.”
It’s also worth noting that copyright doesn’t only protect the song as a whole, but also the unique elements that make up a song.
• In March 2014, the estate of Marvin Gaye sued artist Robin Thicke and producer Pharrell Williams for copying some of the fundamental song elements of Marvin Gaye’s “Got To Give It Up” to create “Blurred Lines”. After a lengthy battle, the court ordered Thicke and Williams to pay the Marvin Gaye estate $7.4 million in damages. Between April 2014 and June 2015, Thicke and Williams were appealing this court ruling. In July 2015, while preserving the jury verdict, U.S. District Judge John Kronstadt rejected arguments over witness testimony and jury instructions and denied a bid for a new trial. Judge Kronstadt reduced the amount of damages from $7.4 million to $5.3 million, as well as granted a request for an ongoing royalty rate of 50 percent of all songwriter and music publishing revenues relating to “Blurred Lines” to be paid to the estate of Marvin Gaye rather than Thicke and Williams. According to The Hollywood Reporter, the judge ruled that Clifford “T.I.” Harris Jr., the rapper who contributed a verse of lyrics, and record labels including UMG Recordings, Interscope and Star Trak Entertainment who distributed the song, will share in the $3.2 million actual damages awarded to the Marvin Gaye estate. Thicke and Williams are expected to take the dispute to an appeals court.
• Similarly in 2015, Tom Petty’s camp pointed out strong similarities between the melodies of “I Won’t Back Down” and artist Sam Smith’s “Stay With Me”. Sam Smith ended up quietly settling with Tom Petty out of court by agreeing to name Tom Petty as a songwriter on “Stay With Me”. When the song “Stay With Me” is used, Tom Petty now receives a portion of the music publishing royalties.
These are high-stakes examples of copyright pitfalls involving high-profile artists and songwriters, but the same rules apply regardless of where an artist or songwriter is in their career.
It is safe to assume that artists and songwriters will continue to write songs and licensees will continue to license those songs from rights holders for many years to come. Songs that we associate with the most important events in our lives continue to live on under the protection of copyright law, which provides both a foundation for the business of music and a means of making a living for the creators of music.
ABOUT THE AUTHOR: Louis Matteo is the Director of Client Relations at Loudr. He has more than a decade of experience in intellectual property licensing, including his work in music licensing with Loudr and The Harry Fox Agency. He is a graduate of Berklee College of Music, as well as an independent artist.