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This page is about copyright with a particular emphasis on issues affecting songwriting. It is intended as a contribution to a debate on copyright, and not a full assertion of legal facts. Although I know more than the average person about copyright, I am not a lawyer.
Copyright applies to artistic and creative work, and not to mere data or something produced merely by some machine or automatic process. For example taking a photocopy of a document will not give you any copyright rights. Taking a photocopy is a mechanistic process which involves no artistic judgement.
The question of whether you are breaking the copyright of another work depends on the method you use, and not on what you end up with.
Copyright is automatic. There is no need to register a copyright but in practice it is important to have some proof of your entitlement to the copyright which might be used in the case of a dispute.
Typically copyright lasts until 70 years after the death of the author. This was increased from 50 years quite recently. There may be variations between USA and Europe, and it may depend on the type of material which the copyright applies to. In any case it will be at least 50 years after the work is created. Some people believe that this is too long. Some copyrights, including the copyright of a sound recording, lasts just 50 years from the time the work was done.
Original compositions are copyright and the copyright extends to any manifestation of that music, i.e. printed sheet music, computer files which depict the music, and sound recordings of the music. This applies to both music and lyrics.
It is generally regarded as a breach of copyright to take a photocopy from a published music book. Even if the tune itself is traditional, and free of copyright, the printed sheet music is considered to be a form or artwork, and so copyright. There may be exceptions where the published book contains exact copies of sheet music from an older source which is free from copyright. Books may contain a general statement of copyright for the whole book, but that might not apply to everything in the book.
Consider a comparison with photography. In the latter case the copyright is owned by the photographer. If the photograph is of a person, however important, that person has no copyright rights over the photograph. Thus you can take a photograph of a celebrity and print it on T shirts and sell them. The celebrity has no rights over this. The position of sound recording is similar. However unfair it may seem, the sound recordist is the owner of the copyright of a sound recording, not the performer.
The only thing the performer can do is to refuse to perform when he is being recorded but he might have to agree this with the management of the venue.
There are numerous cases where people claim copyright where their entitlement is questionable. One example is in a sheet music book which contains facsimiles of work which is old and so not copyright. There will usually be a copyright statement at the start of the book, and indeed some material in the book will indeed be copyright, but the statement may not make it clear that there is other material in the book which is not.
A similar thing can occur with a CD of historic recordings which are not copyright. The record company might claim copyright simply on the order in which the tracks appear. I think that to claim copyright simply on a contents list is questionable. This site contains a number of contents lists of sheet music books. Where practical I have asked permission to include the list as a matter of courtesy, but it may not be necessary. It may depend on the method used to create the list. Scanning the original contents list from the book may be a breach of copyright, whereas writing out the list from observation of the contents may not.
I would contend that mere data should not be subject to copyright. There was a case where British Telecom tried to prevent others from using the contents of the telephone directory. Similarly the BBC has tried to prevent publication of television schedules.
Sometimes people publishing non-copyright material may intentionally alter it slightly, for example by adding a logo to a picture, and then claim copyright on the whole picture.
It is the method of creating the work which determines whether copyright is being breached. Sometimes it is impossible to know how the end product was achieved. Examples might be in creating a Midi file or sheet music in the form of a GIF file. In the case of a Midi file it may be impossible to tell whether the file was newly created from first principles, or whether it was achieved by modifying another (copyright) midi file. In the case of GIF files, software exists which can create a GIF file from an ABC file for example.
There is a sort of poetic justice here, because if someone tries to claim copyright on something which is easy to do, and has little artistic merit, it will be easy for another to legitimately repeat the work independently and end up with exactly the same thing. If copyright is not enforceable, the work may have little merit anyway.
In the end, whether enforcement of copyright is worthwhile will depend on the monetary value of the material.
As I understand it, it is the METHOD of working which determines whether copyright is broken, and not the end result. If someone produces a very similar song entirely by coincidence, then there is no breach of copyright. It IS a breach of copyright to take an existing song and adapt or modify it. In practice however the opposite situation seems to apply. There are many cases where people have modelled one song on a previous one. Sometimes OBVIOUSLY.
There is something about music where we cannot help basing it on previous musical conventions. The musical scales, chords, and even the notes themselves are something which already exist and have evolved over hundreds of years.
Firstly there are songs where the writer has claimed an original work, but the song was based on a previous song. Brian Wilson admitted in an interview that when he wrote Surfin USA he was aware of the similarity with Chuck Berry's Sweet Little Sixteen. Other songs which were claimed as original compositions are Not Fade Away. My Sweet Lord.
A more blatant example of writing songs heavily based on others is in the case of spoof songs. There are various comedy songwriters who write such songs. They are often used in BBC radio and television programmes, and clearly have had the benefit of expert legal advice!
Mitch Benn is one such very talented writer of spoof songs, and when Keith Richards fell out of a tree he sang "Hey.. Keith.. Get out of that tree" in the style of Stones' Get Off of My Cloud". Hilarious it was, talented yes, but certainly adapted from the Stones' song, even though the tune was altered somewhat.
There seems to be a code of practice in the music industry which determines whether copying of a song has gone too far. It seems to be based not on strict copyright law, but on practical enforceability. The industry accepts the concept of influence, and sometimes quite a large amount of it. Even if it is clear that a song is heavily based on another, it is accepted as a new work provided strategic changes of melody and lyrics are made.
The traditional way of protecting one's own copyright is to send it in a secure self-addressed envelope and leave it unopened. However there are other ways.
Sometimes it is possible to apply some sort of one-way process to an original work in such a way that the output of the process can safely be published. Posession of the unprocessed version will prove the authorship of the published version. A simple example is to crop a photograph, or to publish it in a reduced size or quality. In this case it is impossible for another person to replicate the original.
About legal aspects of songwriting:
www.songrights.com
Please put a link to this page using one of the following locations:
www.songs1.com
or direct to this page:
www.songs1.com/copyright.html