I have often thought of copyright law as comparable to a symphony. Composed by the work of an orchestra full of musicians. A symphony is brought to life when music is made from a variety of instruments. In essence, a symphony is a bundle of numerous melodies harmonised into one.
Copyright law is quite the same: it is a bundle of numerous exclusive rights.
But, let’s hold that, rather dramatic, thought for now. The easiest way in which copyright can be understood is this: it’s a physical manifestation of an original thought. This thought or idea can manifest itself in a song, a poem, a drama – each of these, among several others, being forms of expression that have copyright. In contrast, the idea, which remains too intangible and too wide to monopolise by a single person, does not have copyright.
Copyright: For each, its own?
Remember the tune and lyrics, for ease of reference, let’s call it a song, I asked you to think of in Part One? Let’s go back to it and take it apart. What do you get?
We will help: a song, when broken down, is reduced into its constituent elements:
- The lyrics
- The musical composition
- The performance
- The production of the song
- The song in its entirety
Copyright law considers each constituent element to be a separate type of subject matter of copyright. For ease of reference, and in the interest of deconstructing the legalese that applies to this concept, we have captured the above concepts in the following table – which includes each constituent element of your song, corresponding with what such element is called under law.
*Each of the following elements are referred to, in copyright law, as “work(s)”.
As we have identified above, what is most interesting about copyright law, is that each element of copyright law qualifies as separate subject matter. And each of the above elements are separately protect-able under copyright law.
The question that follows at this point, predictably, is what is meant by ‘protect-able’ under copyright law? The answer to this is fairly simple: if you own copyright in any or all of the above-mentioned elements, you receive the entire gold mine of exclusive rights attributable to each such element. Before getting to what exactly these exclusive rights are, it is important to understand the concept of ownership, and when it can be said that you ‘own’ copyright in something.
You do not own me – or do you?
To answer this, we are going to go back to your song, from before, yes, again! But, this time, consider just one aspect of it. Let’s assume that you have composed the track, a friend has written the lyrics, and you have approached another friend who works at a record label to produce the song.
In such a case, with multiple parties involved, there may be significant confusion as to who really owns the rights and who can thus exploit and enforce their copyright, heavy terms, I know. We will get there. Stay with us. When simplified, exploit = make money off it; enforce = sue another for infringement. Applying the concepts from above to the present situation, the answer would be that you are the owner of copyright in the musical work, i.e. the composition, your friend is the owner of copyright in the literary work, and the label that produces the song, is the owner of copyright in the sound recording.
Of course, just when you feel like you have it all figured out, the law throws in a little twist. There’s the dual concept of authorship and ownership of copyright and the two, lo and behold, are different!
Let us try and put things in perspective. The author of any work is the one who is the first creator of it. Picture it: you write a book, or compose a melody, or even design a sculpture, I know, ambitious – you automatically become the creator, and by virtue of the same, you are legally, the author of that work. Now, the law says that the author is the owner of copyright in a work, except in certain instances. Therefore, as a general rule: when you create a work, you own the copyright in that work. This is the case, unless some instances apply.
Broadly, this will be in cases where the work is created during the course of employment under a contract of service or apprenticeship. The reason behind this exception, I imagine, is that when something is created during the course of employment under a contract of service and apprenticeship, that creation is shrouded by instructions and/or directions from the employer, which instructions or directions become characteristic of the new creation.
As such, ownership of copyright should then vest with the employer, the expression of whose idea manifests in the aforementioned creation. To reiterate: if you have composed music during the course of employment under a contract of service and/or apprenticeship, the owner of copyright is your employer and not you.
As a TL; DR, please see the following table:
*In cases of employment/contracts of service or apprenticeship, the employer/ for whomever the service is performed for is the owner.
The next thing of importance is to go over the set of exclusive rights that constitute copyright. As discussed above, each element of a song is protect-able under copyright. Accordingly, ownership of copyright in each such element will grant the owner, a set of exclusive rights. To lyrics and music, which are legally known as underlying works – i.e. literally, works ‘underlying’ the master sound recording.
Copyright law grants the following exclusive rights:
(1) the right to reproduction, i.e. you can make as many copies of it
(2) the right to adapt, i.e. you can adapt it into any other work
(3) the right to translate it, i.e. you can translate it into any other language, boy, that was obvious. Okay, moving on you can perform the work or communicate it to the public
(4) you can issue copies to the public
(5) you can make a film or sound recording of a work. Essentially, then, if you write a poem in English, independently – not as an employee or under a contract of service, you can recite it in public in, say, Malayalam; record that recitation and then distribute and/or sell copies of that record, while all the while having made a copy of the piece for later use as a script to a movie. You can do all this, by virtue of being the ‘owner’ of copyright.
Accordingly, if you are the owner of copyright in a ‘sound recording’, i.e. the recording of the performance/communication of the music and lyrics, then you would have the exclusive right to:
(a) make any other sound recording embodying it
(b) sell or give it for rental
(c) communicate the recording to the public.
In addition to the above, vocal performers, i.e. singers/artists, have a separate set of rights – which are known, under copyright law, as ‘performer’s rights’.
Much ado about rights
We anticipate quite a few questions flowing from the above. You may be wondering: if a song is made up of several works, and each work has a separate bundle of rights attached to it, and the ownership of each such bundle of rights in relation to a work possibly vests with different people, then – are you telling me that at a given time, it is possible that multiple people own copyright in a song? And that each such owner can exercise any of these exclusive rights simultaneously? REALLY?
The short answer
Typically, depending on the nature of intended use and exploitation of the song and/or the underlying works, rights in each of these elements are acquired and/or transferred. As an example: when a song is produced, i.e. when the master of a song is created, it is likely that rights in the underlying works, as owned by the lyricist and the composer, will be acquired by the record label that is producing it, so that the label may exploit it in its entirety. The commercials are discussed between parties on a case to case basis. The long answer – the how, why, when of it all, will be discussed in some of the up-coming parts.
For now, as a starter, what would be essential to know is that as an owner of copyright, you may give away either some or all of the exclusive rights that belong to you. You may do so either by way of a license, a temporary transfer of rights, or an assignment, a permanent transfer of rights – both of which are modes of transfer of rights, and which will be discussed at length in one of our subsequent posts in this series.
Tips, tricks and hacks
In view of quickly recapitulating whatever I have discussed above and as a sort of prologue to some of the later parts of this series, I have set out below another table. The table below can be a quick hack. Something that you can refer to, a sort of map that helps you ‘decrypt’ legal terminology. It can guide you as you try to traverse the murky lanes of law, and music related transactions.
The quick hack table
As I sign off, we take you back to the thought I started with: to us, copyright law in music remains comparable to a symphony – beautiful and complex as ever, complete with various different stakeholders, and constituent elements. For who owns the copyright in a symphony – we leave that for you to mull over!
This article has been written by : Sreyoshi Guha, Knowledge Curator – Anand & Anand & Khimani