Sound Recording Copyright vs. Musical Work Copyright

There are many many many good articles out there explaining the difference between the musical work copyright and the sound recording copyright. However, I suppose there is no harm in adding one more to drive the point home.

As mentioned in my previous article "10 Questions for a Music Lawyer", understanding the difference between these two copyrights is key to understanding the music business generally. For artists, it is also key in understanding how you make money!

During presentations at music conferences, I typically say to the audience that if I were holding Stevie Wonder's Songs in the Key of Life in my hand on vinyl, I am holding two distinct copyrights: (1) musical work copyrights, which are the songs (referred to as "musical work[s]" in the Copyright Act) composed of lyrics, instrumentation, melodies, etc.; and (2) sound recording copyrights, which are the master recordings that embody the musical works (a performer also has a copyright in their performance on the sound recording).

Although these two copyrights are inextricably linked for obvious reasons, they are separate business assets that trigger different revenue streams.  

Subject to granting an assignment of copyright/license to a music publisher or record label, the author of the musical work (i.e. songwriter) will generally be the owner of the musical work copyright, while the performer of the song on the record and/or producer will generally be the owner of the sound recording copyright (referred to as the "maker" under the Copyright Act). If you are both the author of the musical work and performer on the record and/or producer, subject to an agreement to the contrary, you will likely own both the musical work copyright and sound recording copyright. Hooray!

It is common for songwriters and performers, as they progress in their careers, to work with music publishers and record labels to commercially exploit their copyrights. At that stage, music publishers will generally own/control (in whole or in part) the musical work copyrights and record labels will generally own/control (in whole or in part) the sound recording copyrights. Note: I use the words 'generally' and 'typically' in this paragraph not to be wishy-washy, but because determining how copyrights flow and to whom in any given situation will be fact dependent, although the above highlights the general rules.

As mentioned earlier, each copyright will trigger different revenue streams for the owner(s)/licensee(s) of those copyrights. For example, the musical work copyright can generate revenue when the work is produced, reproduced, or performed in public, which includes: performing the song live, performing the song at events or in businesses, performing the song on terrestrial or satellite radio, pairing the song with visual images (like a T.V. show, commercial, or movie), reproducing the song through digital downloads or physical sales (which includes cover versions by other performers), performing the song via online music services, such as non-interactive or interactive streaming services, etc. Similarly, the sound recording copyright can generate revenue when the sound recording is reproduced or performed in public, which includes: reproducing the sound recording on a T.V. show, commercial, or in a movie, reproducing the sound recording via online music services or through physical sales/digital downloads, performing the sound recording on terrestrial/satellite radio and in businesses (referred to as neighbouring rights), etc. I will cover specific revenue streams in more detail in another article. For now, however, the point is that these two copyrights trigger different revenue streams when music is played in different ways, which are very important sources of income for artists.             

Lets do a little case study to illustrate the difference between the musical work copyright and sound recording copyright: if I’m making a film about the history of fireworks in North America and think it would be appropriate to have Katy Perry’s Firework play during the opening scene, I would need to secure a license for both the musical work copyright (usually owned by the music publisher) and the sound recording copyright for use of the master recording (usually owned by the record label). Once I find out that the cost to secure the master recording for Firework is my entire movie budget, I decide to pay my friend, Dana, $300 to record the Firework melody on her Korg organ. In that situation, I still need to secure rights for use of the musical work copyright as I am still reproducing the song’s melodic structure, but I don't need to secure the rights for use of the sound recording copyright as I am using Dana's recorded version of Firework, not Capital Records’ version. Since the song is being paired with visual images, I will likely need to secure a synchronization license as well, but more on that in the upcoming article on specific revenue streams. 

If you are serious about your music, you need to control your musical work copyrights and sound recording copyrights well before music publishers and record labels come into the picture. If you play in a band, collaborate with other musicians, and/or record with other performers and producers, it is highly recommended that you have agreements in place to determine who owns how much of what.     

As always, please reach out with any questions or comments.

*Disclaimer: This article is not intended to constitute legal advice. Please contact a lawyer to discuss your specific circumstances and any questions you might have.  

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