This post is the first in a 5-part series that touches on the tremendously complicated topic of music copyrights and licensing as related to making recordings in a home music studio and distributing them. Every home recording studio has its unique situation in navigating through this “mine field” of legal regulations and requirements. There are so many resources on music law, available online and in print, that it seems difficult to get the information you need all in one, easily understandable place. Widely considered “the bible” of music law, the book Kohn on Music Licensing comes highly recommended by both professional copyright practitioners and newcomers to the music business, especially after the 2018 Hatch-Goodlatte Music Modernization Act was passed into U.S. Copyright law. None of what I will discuss in this series of posts should be taken as legal advice. That is why consulting a music law attorney is absolutely the best advice for safely navigating these waters.
Copyright protection of creative works by musicians, artists, authors, photographers et al. is established automatically once the work is ‘fixed’ in a physical medium, such as a musical composition written down, or a sound recording made. To get full legal protection of their works (to help in cases of copyright infringement litigation), artists usually register them formally with the U.S. Copyright Office . In general, the copyright remains in effect for 95 years after publication (there are many exceptions to this term). After this term, the work enters the public domain, and we are free to perform, record, and distribute the musical composition at will.
To use copyrighted work in your home recording studio, you need to obtain appropriate licensing rights. The purchase of licenses provides royalties (money !) back to artists, which is the proper thing to do to allow artists to make a living at their profession. There are many types of licenses and, depending on what it is you’re doing, you may need to obtain multiple licenses. Below are some of the more common types of licenses available:
A mechanical license is an agreement between a music user and the owner of a copyrighted composition (song) that grants permission to release the song in an audio-only format (interactive audio streams, digital downloads, CDs, vinyl). This permission is also called mechanical rights.
A synchronization license is an agreement between a music user and the owner of a copyrighted composition (song) that grants permission to release the song in a video format (YouTube, DVDs, Blue-ray discs). This permission is also called synchronization rights and sync rights.
A master license is an agreement between a music user and the owner of a copyrighted audio recording that grants permission to use the recording. This permission is also called a master lease or master rights.
Public Performance License
A public performance license is an agreement between a music user and the owner of a copyrighted composition (song) that grants permission to play the song in public, online, or on radio. This permission is also called public performance rights, performance rights, and performing rights. All public performance licensing in the United States is handled by three agencies: ASCAP, BMI, and SESAC.
A theatrical license is an agreement between a music user and the owner of a copyrighted composition (song) that grants permission to use the music in a play, musical, dance, opera, narration, or other dramatic performance. This permission is also called theatrical rights and grand rights.
I’ll mention at this point that there exists a “Fair Use” provision in the Copyright law that allows unlicensed use of copyright-protected works in certain circumstances. Section 107 of the Copyright Act provides the statutory framework for determining whether something is a fair use, and identifies certain types of uses—such as criticism, comment, news reporting, teaching, scholarship, and research—as examples of activities that may qualify as fair use. Section 107 calls for consideration of the following four factors in evaluating a question of fair use:
Chances are that whatever you are doing in your home music recording studio, it probably does not qualify as “fair use” , and hence does not allow unlicensed use of copyright-protected musical compositions and recordings.
In recent years, many creators of artistic works have adopted a more “user friendly” form of sharing their works by placing a Creative Commons License on the work. Musicians can choose to release their songs under Creative Commons licenses , which give you the legal right to do things like use their music in your recordings and videos. Creative Commons (CC) is a system that allows you to legally use “some rights reserved” music, movies, images, and other content — all for free. CC offers free copyright licenses that anyone can use to mark their creative work with the freedoms they want it to carry. For instance, a musician might use a Creative Commons license to allow people to legally share her songs online, make copies for friends, or even use them in videos or make remixes. Another example is the photograph used for the header of this post – it is made available under a CC-BY-SA license.
Typical Creative Commons (CC) licenses are provided below:
In the next four posts, I’ll discuss the practice of music law as it relates to the kinds of music that I record in my home music studio and to the dissemination of the recordings to the public via music hosting platforms.