The Difference Between A Sound Recording And A Musical Composition

From a legal perspective, music remains among the most complex areas of copyright and entertainment law.…

Music fans enjoy amazing music every day.  From the emotional makeup of a song to the subtle ability of music to transform our day, music shapes our lives on a daily basis.  From a legal perspective, however, music remains among the most complex areas of copyright and entertainment law. In fact, many seasoned artists and creatives are unaware of the complexities.  From a copyright perspective, each song that’s produced involves two distinct copyrights.  For example, the song “Quiet Storm” by the legendary Mobb Deep consists of (a) a copyright for the composition of the track (i.e., the track itself) and (b) a copyright for the sound recording of the track (i.e., the artist’s performance of the composition).  

In basic terms, a copyright registration for a musical work covers the music and lyrics  embodied in that composition, but does not cover a particular sound recording of that composition. Meanwhile, a registration for a sound recording of a particular musical work covers the performance and production authorship associated with creating that recording, but does not cover the music or lyrics embodied in the underlying composition.  Consider this the next time you are singing in the shower. 

Musical Composition

A musical composition is typically the written component of a song.  As described by the U.S. Copyright Office, a musical composition consists of music, including any accompanying lyrics.  The author of a musical composition is generally the composer of the beat and the lyricist.  A musical composition is copyrighted automatically when the work is “created,” which U.S. copyright law defines as being “fixed” in a copy or a recording for the first time. The holder has exclusive rights of reproduction and distribution. The holder also has the exclusive right to authorize the performance or transmission of the work in public. Typically, a musical composition is commercially exploited by a music publisher, which shares the royalties collected with the songwriter.

Sound Recording

A sound recording, on the other hand, is a series of musical, spoken, or other sounds fixed in a recording medium, such as a CD or digital file, called a “phonorecord.”  The author of a sound recording are typically the band, group, or artist who recorded the performance of the song.  As explained by the U.S. Copyright Office, copyright for a sound recording is created as soon as “a sound recording is fixed, meaning that the sounds must be captured in a medium from which they can be perceived, reproduced, or otherwise communicated.” This may be in the form of a digital track, disk, tape, or other formats.

The copyright owner of a sound recording has the right to create and distribute copies of the work and create derivative works of the recording (e.g., remixes or videos that incorporate the sound recording).  The public performance right for sound recordings, however, is limited to digital audio transmissions.  Typically, a sound recording is commercially exploited by the record company pursuant to an agreement with the performance artist. 

Impact on Copyright Registration

While musical works and sound recordings are separate works under copyright law, they can be registered together on a single application if the copyright owner of the sound recording and musical work are the same. However, if the copyright in the musical work and the sound recording are owned by different parties, they must be registered individually.

The U.S. Copyright Office provides the following examples:

• Louise and Stan co-created a song and co-produced a recording of their composition. Louise wrote the music for the song and sang the vocals on the recording. Stan wrote the lyrics and played guitar on the recording. Louise and Stan co-own the copyright in both the song and the sound recording; therefore, both works may be registered with the same application.
• Renuka wrote the music and lyrics for a song, and she owns the copyright in her composition. Renuka and Gopal co-produced a sound recording of this song, and they co-own the copyright in that recording. Because the ownership of the song and the sound recording are different, they must be registered with separate applications.

Impact on Licensing

For artists, writing and recording your music can be extremely lucrative because you have access to two separate revenue streams. However, with respect to licensing, the distinction between a musical composition and a sound recording can make it more challenging when seeking to obtain a license.

For example, you may need permission from a number of different parties and interests, including, among others, the song performer, publisher, and record company. There are also other entities that facilitate the collection of royalties on behalf of rights holders. In the United States, the performance rights organizations (PROs), such as BMI, ASCAP, and SESAC, collect performance royalties, and the Harry Fox Agency administers mechanical royalties. This is another key distinction in copyright law — performance royalties are paid for the right to play a music composition in public, while mechanical royalties are paid for the right to reproduce a composition through the process of recording, manufacturing, and distributing the work.

Key Takeaway

For those involved in the music industry, it is important to understand how copyright law impacts your rights and obligations. In many cases, missteps and errors in this discipline may prove costly, resulting in lost revenue or legal liability.

The attorneys of Scarinci Hollenbeck’s Intellectual Property Group routinely help both artists and licensees navigate the often confusing maze of music copyright law. For guidance, we encourage you to contact a member of our team.

If you have questions, please contact us

If you have any questions or if you would like to discuss the matter further, please contact me, Albert J. Soler, or the Scarinci Hollenbeck attorney with whom you work, at 201-896-4100.