Music Copyright Guidelines

by Joe Stone

Copyrights apply to all original works of authorship, including music. Under U.S. copyright law, a composer of original music has the exclusive right to publicly perform his music, reproduce his music for sale and distribution, and license others to publicly perform or record his music. If you want to publicly perform, record, photocopy or distribute copyrighted music, you must comply with U.S. copyright law and guidelines to avoid committing copyright infringement.

Fair Use

The most significant limitation on copyrights in music compositions is the doctrine of "fair use." Uses that fall within the fair use doctrine, as stated under Section 107 of the Copyright Act of 1976, do not require a license or permission from the composer. Under the act, reproducing a music composition for the purpose of “criticism, comment, news reporting, teaching, scholarship, or research” is not considered infringement. Section 107 also identifies four factors to consider when determining whether a particular situation is fair use. These are how the music is used -- e.g., commercial or nonprofit; the nature of the music; how much of the composition is used; and how the use affects the market for the music. Neither the Copyright Act nor the U.S. Copyright Office specify the number of notes or percentage of a composition that would fall under fair use. However, in 1996, the Educational Multimedia Fair Use Guidelines Development Committee developed fair use guidelines for educational multimedia -- including music -- that consider 10 percent or 30 seconds of copyrighted music as fair use.

Other Copyright Exceptions

The Copyright Act of 1976 includes other exceptions. For example, section 108(b) permits libraries and archives to make up to three copies of a sound recording to preserve the work or make it available for research. Section 110 allows music teachers to perform copyrighted works so long as the performance is in a face-to-face setting and done for the purpose of instructing the teacher's pupils. Unless your intended use of copyrighted music falls within a specified exception, you must obtain a license or the composer's permission.

Copyright Licensing

A copyright license for music can fall into one of three categories -- publishing, recording and performing -- and obtaining a license is somewhat complex due to the various rights involved. Each category has several organizations that manage a catalog of music by responding to requests for licenses, collecting fees and distributing the fees to the music copyright holders. For example, a club owner who hires bands to entertain its patrons should contact ASCAP, BMI and SESAC to obtain performance licenses for his establishment. These three organizations manage the performance copyrights for nearly all music in the U.S. A publisher who wants to reproduce and distribute copyrighted music should contact the National Music Publishers’ Association and the Music Publishers’ Association of the United States, the organizations that manage most publishing copyrights in the U.S.

Penalties for Infringement

The Copyright Act of 1976 specifies several penalties for infringing on a music copyright. A court can make injunctions prohibiting infringing activities and order that illegal materials, such as records, CDs or sheet music be impounded. A court also has authority to award monetary damages for infringing activities that include the actual damages suffered by the copyright holder and any profits made by the infringing activity. The copyright holder has the right to waive receipt of actual damages and profits and to, instead, request statutory damages for each act of infringement ranging from a few hundred dollars to tens of thousands of dollars at the court's discretion. A finding that the infringing activity was willful may result in additional damages of hundreds of thousands of dollars.