Introduction to Music Copyright
Copyright protects many different works of authorship, encompassing a broad array of literary and musical works such as books, computer software, visual art and architecture. But copyright protection of a song is more complex, as a song typically consists of two separate copyrights: a musical work (the composition and lyrics) and a sound recording (the actual phonorecord). Copyright ownership confers the exclusive rights to copy, distribute, publicly perform, and make derivative works. The exclusive public display right applies to musical works, but not to sound recordings.
Artists register a song with the U.S. Copyright Office as a record of ownership and to be eligible for statutory damages, attorneys’ fees and actual damages if the work is infringed. If certain songs are part of an album, they can be registered using the Group Registration of Works on an Album of Music (GRAM), which allows registration of up to 20 works, along with any accompanying album images.
There are only so many rhythms, melodies and other musical elements, so overlap is inevitable. Artists draw inspiration from one another, and that influence is an important part of the creative process. Perhaps due to the nature of artistic inspiration, many artists have been accused of infringement, including Vanilla Ice (by David Bowie and Queen), Katy Perry (by Marcus Gray), Led Zeppelin (by Spirit), Sam Smith (by Tom Petty), and Robin Thicke, Pharrell Williams and Ed Sheeran (all by Marvin Gaye’s estate).
Just as copyrighting color in the creative industry could stifle creativity by limiting the colors available to other artists, restricting the use of certain rhythms and melodies can limit artistic expression. The Southern District Court of New York said as much in an infringement case involving Ed Sheeran, arguing that to protect a common chord progression and harmonic rhythm would create “an impermissible monopoly over a basic musical building block.” Structured Asset Sales, LLC v. Sheeran, 673 F. Supp. 3d 415, 424 (S.D.N.Y. 2023).
Importantly, the copyright owner owns the composition or sound in its entirety, rather than the individual elements that comprise the music, because they are the foundations of music that all musicians share. Likewise, a writer copyrights a book without owning the copyright to every word or common phrase.
For a viable copyright infringement claim, a plaintiff must show ownership of a valid copyright and copying by the defendant. Because direct evidence of copying is rare, most courts permit plaintiffs to prove copying circumstantially by showing that the defendant had access to the work and that the works are substantially similar. Access requires only a reasonable opportunity to hear the musical work, which is often inferred, given industry relationships and the wide dissemination of music overall. In the absence of proof of access, some courts still infer copying if the works are “strikingly” similar, but that is a high bar. The doctrine of “independent creation” — that two individuals happened to create the same work independently — functions as a defense to copyright infringement claims, but it is difficult to prove. More often, courts evaluate substantial similarity under the “ordinary observer” standard, asking whether a layperson, rather than a musical expert, would find the songs similar. This substantial similarity, as the name suggests, does not necessitate that the two works be identical.
In 2021, artists Steely & Clevie filed multiple lawsuits accusing more than 100 reggaeton artists, including Bad Bunny, Daddy Yankee and Pitbull, of copyright infringement for copying their rhythm. Steely & Clevie argued that, even though the beats existed beforehand, the specific composition of sound did not. Now that the cases have been consolidated and a motion to dismiss was denied, the court may consider whether the underlying beat is protectable, which has thrust the matter into the spotlight. If deemed protectable, the music industry may become more litigious and artists may be forced to sample beats more carefully. It may even be turned on its head, given the widespread use of the beat. For example, predominantly non-reggaeton artists, such as Justin Bieber and Drake, were also named as defendants.
Lutzker & Lutzker can help you register your musical works and/or sound recordings and help you navigate infringement claims. For further reading from our website on the topics discussed here, see the following insights and IP Bits & Pieces®: Music Modernization Act: A Guide for Copyright Owners, The New Songwriters: AI, Music and the Law, Judge Rules That Unpublished Music May Warrant Trade Secret Protection, Music Modernization Act: An Introduction and Glossary and our Copyright FAQs.