How to protect a music creation? Copyright and License.

Is the smartest way to protect your music to claim copyright over the creation and then monetize it by selling it for royalties or a profit sharing model? Lets explore...

The Copyright Act 1957 defines the author as the owner of a copyrightable work. In a musical work the music producer is understood to be the author of a music piece. However each separate element has its own copyright and through an original combination of all elements, a copyrightable music score is born.

Let us first examine the various elements that hold their own copyright:

1. Lyricist: Before the lyrics were sung for the music score, they were first written by the lyricist. The lyricist is the owner of the lyrics.

2. Singer: Section 2(qq) of the Copyright Act says that the singer is a performer and hence the author of the sound recording of their performance:

3. Composer: Section 2(d)(ii) says that for a musical work including the graphical notation but not including the words or actions is the composition whose author is the composer.

4. Producer: The above form the basic elements of a music score. However when these elements come together to form a song, the producer can claim the authorship as she undertook the recording of the song and hence is the owner of the copyright of his recording.

A copyright subsists till the lifetime of the author + 60 years after their death. This copyright is what is sold and bought, licensed and assigned to be monetised and sold.

Let us examine the most popular relationship that people form in order to sell and use a song.

1. Commission model: This is the most common model in the film and music industries across the world. The lyricist, singer, composer and sometimes even the producer work in commission when creating a piece. The author is the one under whose commission the piece was created usually the production company. This gives the author undisputable copyright over the creation. Usually the artist is paid to make the song (hence commission), gets a credit and, in some cases, even royalties. This is the model that we suggest to most of our producer clients .

2. License: A copyright is often licensed to a production company for use. This is the another popular form of copyright relation that composers and producers enter into. There five kinds of licences that you could opt:

   1. Exclusive License: As the name suggests, only one person holds the license to monetise on the subject matter and even the author cannot give the license to anybody else while the first one subsists. Here you have a better chance to negotiate a better price and use of your creation and is another popular form of property sharing in the industry.

   2. Non-Exclusive License: If you have bargaining power, always agree to non-exclusive licenses only. Here the author can grant the right to monetise to multiple distributors. This is also fairly common industry practice.

   3. Co-exclusive License: This is when the licensor grants the licensor to a certain number of the licensees albeit to exclusion to all others.

   4. Sole License: This is a form of exclusive license where it explicitly states that no other license is respect to the property can be entered into. This is the form of license we encourage all our producers to negotiate, if they have to enter an assignment.

   5. Implied License: This is where it is understood that a composer is given has given the go-ahead to the producer. This may look like the composer not taking any action on knowing that the producer has used his creation or any other.

3. Sale and Purchase model: Sometimes a piece of music is first made and then sold to potential producers for a sum of money. In this model, it is understood that only the producer can use the song. Depending on the agreement the author may or may not retain credit and/or royalties.

4. Assignment Deed: Section 18 of the Act allows the assignment of a copyright which means the the composer can assign the copyright to the producer and in exchange of royalties and/or consideration. The producer is understood as the owner of the song for all practical purposes apart from that she cannot license/assign this right further without the author’s permission. This is the model we suggest where the to most of our clients who are artists.

5. Compulsory License: The Copyright Act grants a compulsory license for Indian work in public interest in special circumstances and in these cases.

A piece of music comprises many separate copyrights but each composition is a new copyrightable subject matter in itself.

The safest protection is the one that gives the least amount of headache, least investment and maximum returns. So the answer will be different for your situation, and your goal.

It is important to protect your creation not just as an author but also a producer as the final product you create will have your authorship.

It becomes incredibly imperative to make sure that the final product you create, the complete chain of title should be clear, unambiguous and certain, and in your favour.

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