Copyright Laws on Audio

Copyright laws have existed since 1790. Digital technology seems to make it increasingly difficult to administer copyright protection especially in the case of audio works; however, the law is the law, and copyright still affords artists control of their creations. With widespread and immediate transfer of data including music, via the Internet, maintaining control has become more challenging, so it's important to understand the ins and outs of copyright protection.

What Is Copyright and Copyrightable?

Copyright protects the artist or creator of a work (written, artistic, photographic, musical, architectural, for instance) to control how and when the work is reproduced. This includes copying, distribution, display, performance and the creation of derivatives from the original.
Any creative work that is in tangible form is automatically copyrighted. A sheet of music, recorded song, or concert that's been captured on video is copyrighted. If a band launches into an ad lib jam session without capturing it in some tangible form, the result, therefore, is not protected. If the band is hired to create a song for someone else, that is considered "work made for hire" and the employer owns the copyright and not the band.

Copyright Duration

Copyright does not last forever and upon copyright expiration, works become part of the public domain. They are free for anyone to use without permission. The copyright law was revised in 1976; the revisions became effective in 1978. Any works created on or after January 1, 1978, is protected from the moment of completion and remain protected by copyright for 50 years after the creator's death. Works created before 1978 but not published or registered until after that date receive the same protection. If it is a "work made for hire," it is protected for 75 years from the original publication date or for 100 years from its creation, whichever is shorter.
Under previous law, copyright duration was 28 years with the option to renew the protection for an additional 28 years for a 56-year total. Some works fell into public domain after 28 years because they were not renewed. The copyright expiration for works created prior to 1978 was set for 75 from the date of creation, publication or registration.

To Register or Not

All works are copyrighted from the moment of creation. Prior to March 1, 1989, all works were required to carry a copyright notification in order to be protected. Copyright law regarding copyright notice display was particularly strict prior to the 1976 revisions. For example, magazines published in the middle of the 20th century not carrying a copyright notice are now in the public domain despite the fact that 75 years have not passed. Notice of copyright, either as text or ©, is no longer a requirement for protection.
To register a copyright with the Library of Congress, you must complete the applications, provide a copy of the work and pay the fees. Registration provides musicians and other creators with monetary protections in cases of infringement. The work must be registered to file a law suit. If you are involved in an infringement suit and your song/work was registered prior to the infringement, you will be eligible for reimbursement of legal fees in addition to actual and statutory damages (that is, someone else profiting from your work). If the work is registered after the infringement occurs, you are still eligible to collect damages, presuming you prevail in the case; however, you may not collect your legal fees.

Fair Use and Other Considerations

According to the copyright law, the "fair use" clause allows for a portion of the work to be reproduced without permission for the purpose of commentary, news reporting, educational and other uses. This section of the copyright law is subject to broad interpretations. Although "for the purpose of commentary and news reporting" is reasonably clear and precise, "educational and other uses" is not. Many infringements and subsequent lawsuits occur when this portion of the law is interpreted too broadly. As a user, it's always best to ask permission or pay the fee. That's always cheaper than the lawsuit.
Another gray area is that of "limited specific guidelines." The law is not specific nor does it define how much may be used before infringement occurs.

Music Industry Case Study

A 1991 lawsuit helped set the precedent to establish what may or may not be an infringement of "limited specific use." In the case Gilbert O'Sullivan v. Biz Markie, singer O'Sullivan sued Markie and eight additional defendants for "sampling or including without permission" a small portion of his song, "Alone Again, Naturally." Markie's rap song, "Alone Again," used only three words and eight musical bars from the O'Sullivan hit, but that sampling was a critical identifier of the original song. The defense attorney argued that using bits and pieces from previously recorded songs was typical in the music industry, but the court ruled against him.
Had the defendant used a less recognizable portion of the song, chances are no lawsuit would have ensued.

Digital Impact

Illegal transmission and distribution of music and audio files are easier than ever. Pirating music is not a new problem. People have been making illegal copies of music ever since the first mainstream tape recorders were available. Reproducing music with good sound quality on digital media requires no skill, effort or special equipment. The music industry attempted to maintain control over its music and limit infringement in the early days of the Internet. It was a losing battle and the industry went through upheaval and many changes to cope with new technology.