Musical compositions and sound recordings are two categories of original work protected by copyright under U.S. law. Copyright gives authors the exclusive rights to duplicate, distribute, perform, display and create derivative works of their original creative expression. Copyright holders can also grant licenses to others to exercise these rights. Screenwriters who want to use copyrighted compositions or recordings in their films must obtain a license to use the works or risk being sued for copyright infringement. Typically, the musical composition copyright is owned by the songwriter, while the sound recording copyright is held by the producer or recording company.
Song Use in Films
Recorded songs are protected by two copyrights: The musical composition copyright covers the song itself, and the sound recording copyright covers that particular recording of the song. If a screenwriter wants to use a particular recording of a copyrighted song, he will need to obtain two different licenses. A synchronization license allows the filmmaker to synchronize the musical composition with the film’s visual image. A master use license entitles the screenwriter to use a copyrighted recording of the song. A synchronization license is necessary for every song used in a film, although a master use license is not. If she is unable to obtain a master use license for a particular recording, a filmmaker may commission a cover version of a song by finding a new artist to record the version of the song made popular by someone else.
Song Use in Soundtracks
A filmmaker who obtained a master use license for a particular recording and wants that recording to appear on the film's soundtrack album must also obtain a mechanical license. The mechanical license allows the screenwriter to reproduce and distribute the recording. A screenwriter who creates a cover version of a song, and has a synchronization license, may include the cover version on the film's soundtrack album using the Copyright Act’s compulsory licensing system. Under this system, a copyright holder is required by law to grant a license at specified statutory rates for a cover artist to record a cover of his song. The cover artist may not alter the basic structure of the original composition in performing her cover.
Use of the musical composition or sound recording of a song without the permission of the copyright holders violates the exclusive rights of the holders of those copyrights. Owners of registered copyrights have the right to bring suit in federal court for infringement of the copyright. If successful in proving that their copyrights have been infringed, the copyright owners are eligible to collect actual damages, and the courts may issue an injunction that would prevent the screenwriter’s film from being released using the song. If the film has already been released, the court could order all copies of the film impounded and disposed of. Finally, provided the copyright holders have registered the copyrights within three months of publication of the song, they can also recover costs, attorney’s fees and statutory damages.
There are exceptions to the exclusive rights of copyright owners, including fair use. Fair use is a defense to an allegation of infringement designed to balance the interests of copyright owners with the public good. Courts evaluate four factors, including the purpose of the use, the nature of the copyrighted work and amount of it used, and the effect of the use on the copyrighted work’s market value. Fair use is designed primarily to allow limited, non-commercial copying of copyrighted work for educational or research purposes. Following this reasoning, use of a copyrighted song in a commercial film would rarely be considered fair use.