Why Understanding Copyright Matters

Understanding copyright enhances your ability as a musician-scholar to ethically and legally use copyrighted material in your creative research. It may surprise you, however, to learn that basic copyright knowledge will also help you strategically plan your search process. Knowing when something was published and if it is copyrighted can help you choose a search tool and quickly find the resources you need. Understanding copyright also positions you to advocate for policy and changes in the law that establish a copyright system that is balanced for creators and users of copyrights.

Staying informed about changes proposed to copyright law, policies implemented on platforms, and legal challenges to libraries and memory institutions will empower you to participate in the development of our copyright system. As a musician-scholar, you have a unique perspective on the importance of a balanced copyright system. As a copyright holder, you want reasonable ways to control your work. As an audience member and researcher, you also want reasonable access to the copyrighted works of others. You understand that we need a system that supports the rights of creators to benefit from their copyrighted works while allowing creators to share that work with their audiences and fulfill their artistic mission.

The Broader Research Landscape

The first part of this book introduces you to practices that show you how to effectively navigate the research landscape while helping you use the works of other creators in your research-creation projects. These practices will help you find, evaluate, organize, and synthesize existing scholarship. You probably recognize that much of this information may be protected by copyright. You may also have concerns about how to access or use copyrighted works legally and ethically in your research-creation projects. However, using copyrighted works as evidence in your research-creation process aligns with the ultimate goal of copyright in the United States: to build on existing knowledge as we create and distribute new knowledge. The research process makes using the works of others necessary and inevitable. At the same time, copyright can sometimes make access and use of copyrighted works difficult or expensive.

In this chapter, we consider the next step in your research journey: your creative process. This includes the generative work of writing a paper or giving a performance. Research-creation also includes the planning and decisions you make about genre, media, distribution, and access to your work. As the copyright holder of your new creation, you are empowered to make decisions regarding distribution and access. You will also be challenged to determine how to balance exercising your exclusive rights under copyright while making distribution choices that align with your artistic mission.

In academia, the traditional paths for sharing scholarly work have been straightforward. Research faculty predominately share their research in established, peer-reviewed scholarly journals, ensuring a rigorous evaluation by fellow experts in their field. Generally, most scholars view their peers as the primary audience for their published scholarship.

Musician-scholars engage with copyright along the spectrum of research activities in ways that differ dramatically from researchers that do lab-based work. As musicians-scholars, you can express and share research through diverse mediums that include written works, exhibitions, performances, installations, or recordings. This range of expression is exciting and invites you to view your research as a vibrant extension of your artistic mission. These possibilities should also inspire careful consideration of how you integrate research into your artistic work to communicate your knowledge and artistic vision to your audience.^[1]

Because musician-scholars do so much of their work for a broader audience beyond their circle of peers, they are often the first community to grapple with unique copyright challenges that accompany new technologies. In the 1990s, internet radio and streaming platforms created exciting new opportunities for musicians. However, these new technologies also disrupted business models for record labels and music publishers in ways that directly impacted changes to copyright law. A critical understanding of how copyright facilitates—and sometimes hinders—these opportunities is essential.

Before we dive into technicalities of copyright, it can be helpful to know how copyright knowledge can help you with basic research tasks. As we noted, knowing if a work is covered by copyright will help you strategize your search for that work and helps you understand how you can use it in your research-creation projects.

Let’s consider the case of George Gershwin’s Rhapsody in Blue. Since its copyright expired in 2020, a research project based on Rhapsody in Blue, the musical work, has no copyright constraints. Whether you wish to adapt the music into children’s songs as a teaching artist, interpolate the theme in a new musical work, or simply include part of the manuscript as a visual element in a concert program, you can proceed without needing to secure copyright permissions.

However, most major recordings of the work and published scholarship about Gershwin’s compositions remain under copyright. You may need to turn to libraries that provide access to collections of scholarly articles and books to find those resources. Recognizing these basic patterns will help you navigate complex information systems that organize copyrighted scholarship and make you a more efficient researcher. Differentiating between materials widely available online in the public domain and those requiring access to specialized library collections is an important step in conducting successful research.

Copyright can be a complex maze for many musicians and performing artists, who naturally want to prioritize their creative work over legal details. Not everyone wants to be a legal expert. However, a basic understanding of copyright will empower you to maximize artistic opportunities and, importantly, know when to consult a legal professional.

Copyright Basics

Now we aim to unravel the complexities of copyright law, with a focus on the unique challenges musician-scholars face. You want to make good choices about legal, ethical ways to engage with copyrighted works, but your experiences with online platforms may seem to contradict your knowledge about copyright law.

It can be confusing when a video you posted on YouTube receives a copyright strike when it seems like creators sharing similar content do not. This perception of inconsistency leads to uncertainty about what is  permissible and discourages creators from sharing their work, especially when it involves copyrighted material.  From a copyright perspective, the platforms musician-scholars often use for disseminating research-creation projects, such as social media and streaming services, also operate differently than scholarly journals. Platforms are dependent on private license agreements with many organizations that represent copyright holders to permit the distribution, use, and performance of copyrighted works online. This licensing differs from the way scholarly publishers secure rights individually with authors to sell or freely share their published scholarship. Recognizing these distinctions is key to using and sharing copyrighted works confidently and responsibly.

What Is the Purpose of Copyright?

Sometimes copyright seems like a barrier to sharing creative work. But in the United States, the law is designed to foster sharing and innovation, ensuring a balanced system that benefits both creators and users of copyrighted material. The U.S. Constitution grants Congress this power:

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.^[2]

According to copyright expert Catherine Zaller Rowland, this means that “copyright’s ultimate role is to encourage creativity and our flourishing national culture…[It] accomplishes this by providing a balanced system that includes both exclusive rights and exceptions and limitations.” In other words, copyright law aims to create balance that benefits users of copyrighted material and creators of new works for the public good.^[3]

Basics of U.S. Copyright

By learning some copyright basics, you will gain confidence about several key concerns of musician-scholars and performing artists: how the copyright system works; how you can manage your copyrighted works; how to avoid takedowns of your performances online; and even how to ensure other creators are acknowledged and compensated when appropriate. You can also determine applicable copyright exceptions in education, analytical, and research settings.

To start, copyright laws differ from country to country. This book focuses on U.S. copyright law. While it might seem confusing to deal with copyright laws in different countries, especially when the internet seems border-less, it is crucial to follow the copyright law where you are working. Compliance with the laws of the country where you are conducting your work is essential, regardless of your home country’s laws. For example, an American citizen who resides in the United States is planning a grant-funded project for a performance in Germany. Despite American citizenship, this creator must follow German copyright laws and regulations for performances in that country.

While the copyright system is complicated,  securing your copyright is not. To be copyrighted in the U.S., a work must satisfy three criteria:

• It must be an original work or creation.
• It must be the work of a human author.*
• It must be fixed in a tangible format.

*Currently, works created by large learning models (LLMs) like ChatGPT, Denali, and others are also not protected by copyright.

The requirement for a tangible format does not restrict the work to a notated print format. Dance and improvised music are often not traditionally notated; tangible, fixed formats can include video or audio documentation as well. Using your phone to record your new composition while sitting in a park or taking a video of your dance choreography at a bus stop establishes a copyright for those works. This flexible definition of “tangible format” also allows creators to use software or electronic instruments in creating musical compositions, which are difficult to represent with traditional Western music notation.

Once you create a work and fix it in a tangible format, it automatically becomes copyrighted. As Brandon Butler, the director of information policy at the University of Virginia often says, copyright is “automagical.” Nonetheless, there are significant advantages to registering your work with the U.S. Copyright Office. Formal registration serves as proof of your ownership of your copyrighted works. In cases of copyright infringement, where someone misuses your copyright, registration provides undeniable proof of your sole ownership. Registering before a copyright is infringed or within three months of publication also allows you to ask the court to award certain kinds of damages that only apply if your work is registered for copyright.^[4]

However, not everything that meets the three criteria to be copyrighted qualifies for copyright protection. Copyright law does not protect titles and short phrases, ideas, facts, and works created by the United States government. Many musician-scholars find it surprising that ideas are not copyrightable. While ideas are central to our work and creative research, the law requires a work to be fixed in a specific expression, or version, to be copyrighted.

For example, we can consider the plot of a story where a young man discovers that his uncle murdered his father and seeks revenge. One of the most famous expressions of this tale is Shakespeare’s Hamlet. First published 1599 or 1600, Shakespeare’s play is now in the public domain. Filmmakers like Kenneth Branagh or Franco Zeffirelli did not need permission to make their film versions of Hamlet.  However, because the films of Hamlet by Zeffirelli (1990) and Branagh (1996) were unique expressions, these works do qualify for copyright protection.. New expressions of Hamlet can also be even more creative: In 1994, the Walt Disney Company created and copyrighted its own expression of this idea in the animated musical The Lion King. These expressions are just a few examples; there are numerous copyrighted expressions of this story. By protecting only the fixed original expression of an  idea––but not the idea itself—copyright law encourages the creation of multiple original works based on a similar story, each with its own copyrightable expression.

Re-imagining works that are in the public domain is an important feature of copyright. This allows you to create your own version of Hamlet or any public domain work that inspires you.

“Finding uncopyrighted material has led to some very creative decisions. Limitation leads to some really creative discoveries as well. Sometimes the barriers lead us to create some original things.” Robin McGinness

In addition to understanding what can be copyrighted, it’s important to know who owns the copyright to a work. Not every person who creates a work is the copyright holder. When you create something as part of your job, it could be considered a work-for-hire where your employer is considered the corporate copyright holder of that work. If you are the marketing manager at an arts organization and you create a brochure for the upcoming season, that brochure is copyrightable. However, because you created it as an employee as part of your job, the arts organization is the copyright holder.

Today, many people know that new copyrights last for 70 years after the death of the creator. However, copyrights held by corporations last for 95 years from first publication or 120 years from creation if the work was never published. These different copyright terms add a layer of confusion to understanding when copyright expires. It can be even more confusing to determine the copyright status for works created in the 20th century. Throughout the 1900s, Congress lengthened the term of copyright repeatedly a number of times.^[5] For works published before 1978, the copyright term may be shorter than for works created after January 1, 1978.

Thankfully, the public domain grows as the copyright of protected works expires every year. At the time of this book’s publication, in 2024, everything published before 1929 is in the public domain. Each year on January 1, copyright expires on more copyrighted works. Works may enter the public domain sooner: because of technicalities, copyright has expired for some works published before 1964. Cornell University’s library has a very useful copyright guide to help you understand when it might be appropriate to do more research on a work’s copyright status.

Another critical copyright basic is understanding the exclusive rights covered by copyright. We often talk about copyright law as one thing, but in the United States, copyright is a bundle of exclusive rights. As a copyright holder, you control these exclusive rights in works you create:

1. Copy texts or recordings.
2. Distribute copies or recordings.
3. Publicly display literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works.
4. Publicly perform literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works.
5. Make derivative works based upon the work.
6. Publicly perform sound recordings via digital audio transmission.^[6],^[7]

If you want to copy, perform, distribute, display, or adapt a work that you do not own the copyright to, you need to get permission from the copyright owner to engage in any of these activities. That permission generally comes in the form of a license that may or may not require you to pay a fee. It also means that if you transfer your copyrights to a publisher, record label, or other entity, they will be the ones to exercise these exclusive rights or decide who is granted permission to use your work. If you know these basics, you can get started on identifying any areas where copyright might impact your research-creation projects. Familiarity with these basic concepts can also help you streamline your consultation of legal counsel to make the best use of professional legal services for your project.

These basics cover what requirements a work should meet to be copyrighted, how long that copyright lasts, and the exclusive rights a copyright holder controls in their work. While it seems straightforward and inclusive, by requiring work to be original and fixed, the U.S. copyright system also omits some voices in the system. We learned in Part 1: Research Foundations that the ways that archives are constructed, how we classify information, and even the methodologies we use can exclude some voices and traditions in our information world. This is true with copyright, too.

Dr. Kimber Thomas from the Library of Congress has begun to articulate some of the ways we see our copyright system perpetuate oppressive systems like racism.^[8] Folklore and other oral traditions cannot be copyrighted without conforming to requirements designed to protect intellectual property developed in White European cultures. Her work also demonstrates how other aspects of copyright, like the work-for-hire doctrine, perpetuate institutional systems of oppression by giving ownership of copyrighted works to corporations rather than individual creators or communities (where authorship may be constructed communally and not by individuals).

Like Johnston and Marwood’s action heritage research methodology, Dr. Thomas’ work invites questions about how we may want to think about long term reform of our copyright system to make it inclusive of different kinds of knowledge production traditions.^[9] Dr. Thomas’ work and the work of other scholars also invites us to consider not only the copyright issues when using copyrighted work in our research-creation, but also any ethical issues that copyright might not address.

Using Copyrighted Musical and Dramatic Works

Now that you have knowledge of these copyright basics you can begin to see where copyrights are involved in your research-creation project. Whether your project entails planning a traditional performance in the concert hall, developing a new multi-media work, or just sharing a performance from the bus stop on social media, there will be copyright considerations you need to address. Now we will look at how exclusive rights are managed in our copyright system and how you need to secure permissions to use copyrighted works.

First, it’s important to remember that in the performing arts, we are almost always dealing with more than one copyright. When you listen to a song on Spotify or Apple Music, there can be as many as three copyrighted works being shared: the musical composition, the sound recording of the musical composition, and the lyrics. These copyrights may be held by three separate copyright holders. Du Yun’s 2021 opera In Our Daughter’s Eyes comprises music by the composer and a libretto by Michael McQuilken. If a recording is released on Sony Classical, the record label is likely the copyright holder of the sound recording. If you then wanted to use that recording in a project highlighting the impact of Chinese American composers, you would need to consider all three copyrights separately.

When you consider the complications of multiple copyright permissions to use one work, you may start to feel overwhelmed by how complicated our system is. It seems to easy to share copyrighted musical works online, but when we examine the copyright landscape, there is a complex web of licenses and permissions that make this possible. Music copyright law has evolved and adapted to respond to new technologies to make this seem easy. Some understanding of this complex system will help you avoid pitfalls in sharing your work in existing and emerging platforms.

The following sections cover the ways that copyright law has defined the permissions you need and created some systems that streamline those permission processes when performing copyrighted music in public or sharing those performances online.

Public Performance Licenses

Public performance licenses are required for every nondramatic performance in front of an audience whether it is live in-person or broadcast online. The law defines a public performance as a performance that happens at “a place open to the public or at any place where a substantial number of persons outside of a normal circle of a family and its social acquaintances is gathered” when performed in person.^[10] Online, it defines a public performance as one where the performance is transmitted to members of the public whether they are in the same place or separate.^[11] That means that if five people are sitting alone at home in different cities listening to a song streamed on Spotify, it is a public performance, even though each of them is listening alone with no other audience members.

Public performance licenses cover musical compositions and sound recordings. In most cases, venues and platforms will have these licenses in place. In the U.S., the licenses are managed by a kind of collecting agency called a performing rights organization (PRO). The most well-known PROs include ASCAP, BMI, SESAC, and GMR for public performances of musical works, and SoundExchange for digital transmissions of sound recordings on satellite and internet radio.^[12] These agencies provide blanket licenses to bars, concert halls, and even universities that allow them to publicly perform large catalogs of copyrighted works. PROs collect the licensing fees for these blanket licenses as well as for individually licensed public performances and distribute those royalties to songwriters, publishers, performers, and record labels.

When a copyright holder registers a work with a PRO, venues and platforms with licenses do not need separate permission to publicly perform each of the works available in a blanket license. It is important to know that  public performance licenses remain limited to nondramatic performances of works that do not include staging, narrative storytelling, or props and costumes.  Staged performances of musical works require additional rights—grand rights—which we discuss later in this chapter.

Public Performance Licenses in Action

If you are invited to give a recital or decide to perform at the local open mic, the venues are expected to have public performance licenses in place so that you don’t need to secure permission to perform copyrighted works. It also means that when you want to livestream on Instagram or YouTube, you don’t need to get a license for the public performance because the platform holds a public performance license. It is, however, important for you to do your research and ensure that the organizations and platforms that you want to use have the appropriate licenses in place.

Today, nearly all platforms where you can share and release music online, in addition to performing venues, have agreements with the major PROs we listed. Luckily for musician-scholars, platforms like Spotify, SoundCloud, and AppleMusic^[13] have these licenses in place to cover any audio recordings you want to share of another creator’s copyrighted music. However, streaming online also involves some of the other exclusive rights of the copyright holder we discussed, so there are additional licenses that you need to consider when releasing your research-creation projects online.

While musician-scholars focused on performing are primarily concerned with acquiring public performance licenses, if you compose original music, you will want to register your original compositions with a PRO to collect royalties. ASCAP and BMI allow any creator to register their works with them. The public performance royalties they collect are split between the publisher and the composer. If you work with a publisher, your publisher may register your work with your PRO for you. If you self-publish you work, you will want to understand how to register as the publisher and composer of your work. This process may differ among different PROs and may have different implications for how you structure your self-publishing as a business.

It is important to know that your work can only be registered with one PRO—you cannot register one work with BMI and the next with ASCAP. It can be difficult to switch from one PRO to another, so it is important to read through their membership rules carefully. Also, you generally can only be registered with collecting agencies in one country—reciprocal agreements will ensure that your works are listed, and royalties are collected in music markets outside of the country where you register.

For example, if you are registered with ASCAP and your symphony is performed by the Seoul Philharmonic Orchestra, you do not need to have your work registered in South Korea to receive royalties. The Korean Music Copyright Association (KOMCA) would send royalties to ASCAP for your performance.

As a performer, you should register any published sound recordings you release with SoundExchange to receive the performer’s portion of any royalties from public performances of your sound recordings.

Mechanical Licenses

A mechanical license allows someone who is not the copyright holder of a musical work to reproduce that musical work on sound recordings. This is often thought of as a “cover license” because artists who generally record original music only need this license if they are covering another artist’s song. Musician-scholars who perform in musical traditions where they perform music written by another composer—such as in Western classical music—will need this license to share recordings of copyrighted musical compositions. If you are a musician-scholar who often performs music that is copyrighted by someone else, it can be convenient to think of yourself as a cover artist.

Mechanical Licenses in Action

There are three ways to secure mechanical licenses. If you are the first artist to record a musical work, you will need a license directly from the copyright holder (generally the publisher or composer) to release a recording in any format. If you are not the first artist releasing a recording of a musical work and are releasing music on physical formats like CD, cassette, or vinyl, you can arrange for this license through the Harry Fox Agency’s SongFile service. You will also need to comply with the U.S. Copyright Office’s requirements for filing a Notice of Intent with the office.^[14] If are unsure about doing this on your own, a service like EasySong can do this work for you for a small administrative fee.

However, if you are not selling physical media and are only distributing the sound recording for digital download or streaming, you may be covered if the platform already has a license from the Mechanical Licensing Collective (MLC). The MLC publicly posts the list of sites that have secured licenses. Notably, Bandcamp is currently a non-blanket licensee, meaning that you still need to work with the Harry Fox Agency to secure licenses for that platform. Mechanical licenses only apply to the musical composition, so only composers or songwriters and their publishers receive royalties from these licenses.

Unfortunately, we are not done with licenses yet if you want to share your work on a platform that includes video such as YouTube or Instagram. Because a mechanical license only covers sound recordings, it does not cover multiple on-demand streams of copyrighted music synchronized with video—that requires one additional license, called the synchronization license.

Synchronization Licenses

Synchronization licenses, often just referred to as sync licenses, are required any time you synchronize copyrighted sound recordings to other audio or video recordings. This can include produced music videos, on-demand recital performances on YouTube, or music featured in a podcast. The sync license is the last step for musician-scholars who want to post performances of copyrighted music to a website like YouTube. Like mechanical licenses, sync licenses are also only required for musical compositions and only composers and publishers receive royalties from these licenses.

Synchronization Licenses in Action

These licenses can only be negotiated directly with the copyright holder. A good place to find the copyright holder’s information is in the MLC database. You can also work with a licensing company that will secure a license for you for a small fee. There is no set rate for these licenses and it can take significant time to secure them. As a copyright holder, you may enter into these licenses directly as a copyright owner or your publisher may manage them for you.

Avoiding Takedowns

If you ensure these licenses are in place before uploading your performance to a platform such as YouTube, you may be surprised when YouTube sends you a copyright notice. This can happen when YouTube’s Content ID system gets confused and matches your performance to an audio recording or composition in its copyright protection catalog. When a video is identified as containing someone else’s copyrighted musical work or recording, the copyright holder can direct YouTube to take action against the uploader of the video. ^[15]  This means a record label or music publisher can choose to mute the sound on your video, issue a takedown notice, or monetize your video.

Unfortunately, YouTube’s ContentID system is notoriously unreliable.^[16] Many classical musician-scholars struggle to share or monetize their performances of public domain music because of erroneous copyright claims that can be difficult to challenge.^[17] However, it is important to continue to pursue your rights in these systems by challenging erroneous claims. Start by ensuring that you have all the licenses necessary to share the work you want to share; this preparation guarantees that you have a solid foundation to contest claims against your videos.

Master Use Licenses

A master use license is the license you need to use someone else’s copyrighted sound recording. Master use licenses are commonly sought in conjunction with licenses for the musical work. They are required for using a copyrighted recording in a film or advertisement. A master use license can also be required for other specific uses, like sampling in a new multimedia work.

Streaming platforms pay record labels and distributors directly for this license. These licensing fees are negotiated directly with the larger labels and distributors or organizations like Merlin, a consortium representing a membership group of small independent record labels.

Master use licenses only apply to the sound recording. Licensees pay royalties for master use of sound recordings directly to record labels or distributors, who then distribute royalties based on recording or distribution contract terms.

Master Use Licenses in Action

Master use licenses must be negotiated directly with the copyright holder (generally the record label). Such licenses are difficult and expensive to acquire because there is no standard process or system to follow. Unlike mechanical licenses, where the U.S. government determines royalty rates, sound recording copyright holders can set any license fee that they want, which can make these licenses expensive to obtain. ^[18] This can be challenging when you want to use samples of sound recordings in your research-creation projects. It is becoming common for licensors to request composition credit in addition to a one-time licensing fee, which means they will also collect royalties on the composition moving forward.

Grand Rights

We know that PROs only cover public performances of nondramatic musical works. PROs also cover performances of copyrighted dramatic works that are excerpted and performed in a nondramatic context, like a single aria or song from a dramatic work. That means you can perform “Don’t Cry for Me Argentina” at the open mic night if there is a public performance license. But if you want to propose performing the entirety of Evita with costumes, sets, and a jazz quartet, you will need grand rights. Grand rights are negotiated with the publisher or their agent. Grand rights are required for fully staged performances of any copyrighted opera, musical, or ballet.

Grand Rights in Action

Grand rights are only required to perform the musical work. Generally, grand rights will be negotiated with the publisher or copyright holder directly. Rights systems like Zinfonia or licensing agents like Concord Theatricals can help streamline the licensing process. Recording staged performances may also be negotiated when securing grand rights with the copyright holder. Royalties from grand rights are paid to the composer or songwriter and publisher.

When you publicly perform a nondramatic work, you have full artistic control over your performance. However, which elements can be changed in a dramatic work that is still copyrighted are controlled by the copyright holder. This is why grand rights need to be secured separately. In addition to giving you the rights to perform a dramatic work publicly, these licenses will let you know what elements of the original lighting, staging, choreography, costumes, or sets can be changed (or must also be licensed for use).

Conclusion

This chapter introduces copyright essentials for your research-creation work as a musician-scholar. Familiarizing yourself with copyright essentials prepares you for finding copyrighted resources and creating your own. Identifying a work’s copyright status and knowing what licenses you made need to secure will help you execute your research-creation project. We also introduced you to some foundational ideas about how U.S. copyright system aspires to spur creation and innovation. Understanding the foundation of this system and some of the technical processes in its implementation prepares you to participate in shaping the future of a copyright system that respects the rights of creators while advancing your own artistic and research endeavors.

About the author

name: Kathleen DeLaurenti

institution: The Peabody Institute of The Johns Hopkins University

website: https://peabody.jhu.edu/faculty/kathleen-delaurenti

Kathleen DeLaurenti is the Director of the Arthur Friedheim Library at the Peabody Institute of The Johns Hopkins University. She holds an MLIS from the University of Washington and a BFA in vocal performance from Carnegie Mellon University.

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