The American jazz legend, Billie Holiday, once famously said,
“You cannot copy anybody and end with anything. If you copy, it means you are working without any real feeling. No two people on earth are alike, and it is got to be that way in music or it is not music.”
And we are in full agreement. Now, before you whip out your laptops or phones, and begin to feverishly type out comments on how we are utterly under-qualified to opine on what is or is not music, we must disclaim that our thoughts in this regard are limited to the bit on copying. Call it a professional hazard, we often find ourselves faced with instances where we must break apart each little component of a song or track, listen to it on loop and then put forth our views on whether or not one song is a copy of another. As such, our views on the entire practice of copying are quite straight-forward: it is not cool.
While conversations surrounding music today, are largely limited to copying of tunes and/or lyrics and determinations on who owns rights – we, as lawyers, often find ourselves explaining to people that creators or contributors of/to music, are governed by myriad laws.
To demonstrate: let’s say you have composed a tune and have also written the lyrics, which are to accompany the melody. You have also recently been in talks for its production, and distribution over several digital platforms. It is likely that you will be working with the following set of laws:
The Copyright Conundrum
Intellectual property is broadly divided into – copyright, trademark, patents and geographical indications. All four of these terms mean widely different things but are often used interchangeably in reference to content. This is an entirely incorrect practice.
Copyright protects the expression of ideas, be it in the form of music, text, choreography or others. In the context of music, musical compositions, lyrics, and recordings of the music can each be considered as a form of expression of an original idea. Each of these elements are thus protected by copyright law. Given its large-scale and often dominant applicability to music, we will be primarily focusing on this aspect of law over the up-coming parts of the series and breaking down each aspect of the same.
One question we are frequently asked in relation to copyright, is whether it is mandatory to register copyright in order to receive protection and eventually sue for infringement of copyright. Interestingly, copyright law does not mandate the registration of copyright for its protection and enforcement. Copyright subsists in a work (a “work” being a protect able form of expression or simply something in which copyright may subsist) from the moment of its creation (I know, crazy, right?).
That said, a copyright registration certificate is helpful in situations when someone claims to have created a work prior to yours, and you have to prove otherwise. Think of a situation where you’ve composed a song, and someone claims to have composed something similar about a year before you – a registration certificate is your best bet in demonstrating that your work was created first.
The Trademarks Tirade
Legally speaking, trademarks designate the origin of goods and/or services. They help a proprietor of goods and/or services establish, in a market, that such goods and/or services belong to them. Typically, thus, trademarks populate public spaces in the form of brand logos or packaging – these are what sets a certain seller’s goods or services apart from another’s. To understand trademarks in the context of music, then, a question must be posed: What can possibly attribute a tune or lyrics to its composer or lyricist? The title, of course! This very title is protect able as a trademark.
When a trademark is registered, such registration is valid for ten years from the date of application for registration. This means, once you have registered the name of your title as a trademark, you will have to renew it after the expiry of ten years. For better chances of a trademark registration (throwing in a double bonus here, for our readers) to come through, it is important to demonstrate that the desired mark (here: an album title) is truly distinctive and is one that the general public associates or are likely to most associate with the particular album or musician.
Care to Contract?
For any dealings that a composer or contributor to music has with any third parties (picture: a record label or distributor in case you have composed a song and want to record and distribute it), and when such dealings are recorded on paper, all parties are bound by the terms of the agreement so entered into. In effect, therefore, once all rights, liabilities and other commitments are acknowledged and recorded in an agreement, the parties and the transaction are governed by the terms of that agreement.
A frequently asked question in such cases, is whether an agreement is valid and binding on two parties in case an arrangement and/or association between two or more parties is recorded over email. Much to the relief of most people who ask this question, the short answer is yes.
An agreement (in any form – be it by way of emails or otherwise) are valid and binding if the following broad conditions set down under the Contract Act are met:
(a) there is an exchange of consideration (read: some material exchange is necessary)
(b) both parties are willing to be legally bound under contract
(c) the contract revolves around an object that is not illegal
(d) none of the parties are minors
(e) the agreement is a consensual act between parties (read: no one has been forced or coerced or manipulated to enter into a particular contract).
We will take you through this bit in detail slightly later in the series, when we specifically discuss various agreements in music, between different parties.
Summing it up
If you have just composed a tune and you wish to release it on various platforms, you have a lot of work to do. While we must caveat that this journey may (read: is highly likely to) lead you to the doors of a lawyer at some point, this series is intended to help you become aware of some, if not all, aspects of the laws that govern and apply to music. In a world that is largely becoming defined as the information economy, awareness about your rights and duties as a stakeholder in the music industry takes precedence. In other words: let the conversations begin.
This article has been written by :
Anand & Anand & Khimani