Before You Launch: Music

Welcome to the second installment of Before You Launch, our series on the legal considerations that arise before a project debuts. In this piece, we focus on releasing music.

Whether you are composing a concerto, writing lyrics or recording a theme song, releasing music raises important questions about ownership, permissions, protections and licensing. Sorting out your rights before you launch is far easier, and less expensive, than fixing problems after release. The checklist below walks through some (not nearly all!) of the key considerations.

Understand the Two Copyrights

A song typically consists of two separate copyrights: the musical work (the composition and lyrics), usually owned by songwriters and publishers, and the sound recording (the recorded performance), usually owned by the artist or label. Each carries its own exclusive rights. For example, songwriters receive the full public performance right, while sound recording owners have that right only for digital audio transmissions. That is why terrestrial radio pays songwriters but not recording artists. Acquiring all of the necessary copyrights to your music is essential.

Clear Samples, Interpolations and Covers of Existing Songs

Given that every song has two copyrights, borrowing from an existing song can require two permissions. A sample (using a portion of an existing recording) requires a license from both the owner of the sound recording and the owner of the musical work, whereas an interpolation (re-recording a portion of an existing composition) requires a license from just the owner of the musical work. To release a full cover song, you can obtain what is called a compulsory mechanical license, but that license does not permit you to change the basic melody or fundamental character of the song. A visual recording that ties sounds to moving images, such as a music video or YouTube posting, requires a separate and distinct synchronization license. Sync licenses are typically negotiated with music publishers (when they represent all relevant rights), composers/songwriters or those who control music libraries.

Put Ownership in Writing

Ownership questions often arise when you collaborate with bandmates, co-writers or independent contractors, which is why everyone should sign an agreement before the project begins. Without one, default rules may divide ownership and control in ways no one intended. That agreement should address key issues including:

Who owns what share of the composition and the recording
What happens if a member leaves or the group dissolves
Who may grant licenses, and whether joint approval is required
How income is allocated and when costs are shared
Whether decisions require unanimous or majority consent
Who is credited and how

Producers, session musicians and featured artists should sign written agreements as well. Relationships change as a project evolves, so it is best to revisit these agreements after any material changes.

Review the Deals

Producer and feature agreements, distribution terms and management and label contracts each decide what you keep and what you give up. You should look closely at who is granted creative and administrative control, who owns the masters, the length of the term and any exclusivity rights as well as any fees and profit-sharing agreements, audit rights, reversions of rights and takedown provisions.

Watch for one-sided provisions, perpetual terms or overly broad grants of rights (special rules also apply when an artist is a minor). Each party should work with independent counsel during negotiations.

Clear Your Artist Name and Titles

A band or artist name can sometimes be protected as a trademark if it identifies the source of your music, merchandise or entertainment services (think THE BEATLES). Conduct a trademark search before you create merchandise or build a following under a name someone else already uses. Assuming the mark is clear, you should register it and secure matching domain names and social media handles. Some artists go further: Taylor Swift’s company, for example, has sought trademark protection for her name, song titles and tour names, although the title of a single creative work generally cannot be registered as a trademark on its own.

Clear Your Artwork

Obtain a written assignment or license from the designer and/or photographer of the cover album and releases from person whose image appears. (See the work for hire/assignment discussion in the first article of this series.) If you don’t own the artwork, it must be in the public domain, available under a Creative Commons license, or otherwise licensed. Follow the license terms, such as mandatory attribution. Relying on fair use would require a careful, case-by-case analysis of the four fair use factors, but know that fair use is less likely when the use is commercial.

Register Your Copyrights

Registering your songs with the U.S. Copyright Office creates a public record of ownership and is required before you can sue for infringement of a U.S. work. Registering promptly also preserves your ability to recover statutory damages and attorneys’ fees in case of infringement. Songs released together may qualify for the Group Registration of Works on an Album of Music (GRAM), which covers up to 20 works in one application, along with accompanying album images. All songs must have the same copyright claimant and publication status to qualify.

Proceed Carefully with AI

Generative AI tools such as Suno, Soundraw and Boomy can create new music from users’ prompts, often drawing on existing copyrighted works. If you are thinking of releasing music made with AI, keep in mind that purely AI-generated material cannot be protected by copyright, and AI-generated content must be disclosed when you register. Further, some platforms let users own their outputs, while others limit ownership or commercial use. Therefore, you must read the terms of use of the specific platform before using it. Additionally, voice cloning raises right of publicity concerns; for example under Tennessee’s ELVIS Act. A prompt for a song “in the style of” a particular artist may produce output that copies protectable expression, or that evokes the artist’s voice or identity closely enough to raise right of publicity or false endorsement concerns. Many distribution and streaming services are also adopting their own AI policies, including disclosure requirements and prohibitions on artificial streaming, so you need to review and comply with those terms as well.

Purchase Errors and Omissions Insurance

There are only so many rhythms and melodies, so some overlap is inevitable, and artists draw inspiration from one another. As a result, many well-known artists have faced infringement claims, including Vanilla Ice (by David Bowie and Queen) and Katy Perry (by Marcus Gray). Even the most careful musician can face an unexpected claim. Errors and omissions (E&O) insurance covers claims such as copyright and trademark infringement, defamation and invasion of privacy.

A thorough clearance review protects your music, your investment and your release. Lutzker & Lutzker can help with co-ownership agreements, producer, distribution and label contracts, trademark clearance and registration, artwork licensing, sample and cover clearance, copyright registration and questions about how use of AI will affect your launch, so you can release your music with confidence.

For further reading on the topics discussed here:

As always, this series is for informational purposes only and should not be construed as legal advice. Please consult directly with an attorney for advice that applies to you.