Copyright Support

Music and Art Copyright

Questions? Email us at copyright@smu.edu

Music exists in multiple expressions including printed notation, sound recordings, and live performances. Each of these expressions, therefore, have copyright protections. In many cases the rights are controlled by separate individuals, rights organizations, or publishers.

In the recording industry, rights to a particular song and its recording are usually divided. A composer, songwriter, or lyricist may control the rights to their own work or may assign rights to a publisher. When a song is recorded, the copyright of the sound will be held by the record company. Users seeking permission or licensing to use a musical work or its recording often will need to contact multiple entities to obtain clearances for use.

Consider the following example of copyright ownerships in music by The Beatles. The song "Hey Jude" was written by the team of Paul McCartney and John Lennon and then recorded by The Beatles. There are two copyrights, one in the song itself and another in the particular recording of "Hey Jude" as done by The Beatles. The composition "Hey Jude" is now owned by Northern Songs, originally begun by The Beatles but today part of Sony/ATV Music Publishing, while The Beatles' recording of "Hey Jude" is owned by Apple Records, the record company started by the group. The recordings of "Hey Jude" sung by other performers such as Bing Crosby, Elvis Presley, Ella Fitzgerald, Tom Jones, and John Denver, would be owned by the record companies for each of the singers’ recordings.

A performance rights organization (PRO) serves as an intermediary between rights holders (such as musicians, composers, and publishers) and parties seeking to use copyrighted works. PROs monitor performances of music on radio and television, in nightclubs, and on internet sites. They administer performance royalties to rights owners and negotiate licensing for parties seeking use of copyrighted content. There are multiple license types and fee structures, depending on the music content and how it is used.

Three main PROs in the United States include ASCAP, BMI and SESAC. They collect license fees from business entities that use the music registered with them and distribute royalties to composers, songwriters, and music publishers. In order to collect performance royalties, music publishers must register with a performance rights organization, but only one.

There are two areas of music royalties—mechanical, which pays royalties from recordings manufactured and distributed, and performance, for each time a work is performed or broadcast.

Mechanical license—grants the right to reproduce and distribute a musical work at an agreed upon fee per unit. This includes physical media, such as compact discs, cassette tapes, phonograph records as well as ringtones, streaming technologies, and digital downloads. Harry Fox Agency is a leading PRO providing mechanical licensing. For more information, see the Harry Fox webpages on mechanical licensing.

Performance Royalties

Performance Royalties are assessed whenever a musical work is performed or broadcast. This includes live concert performances, radio broadcasts, music-on-hold, and internet streaming. Fees are based on multiple factors including venue and audience size. Two main types of licensing include the synchronization license and the public performance license.

Synchronization or “sync” license—allows music to be used or synchronized in audio-visual works such as motion pictures, television, videos, games, and websites. A sync license is separate from the above mechanical license. For synchronization licensing, parties need to contact the publisher or owner of the musical work directly and also obtain a master use license for the specific recording to be used. If the fee for a master use license is prohibitive—some popular songs in U.S. television commercials can command fees between $50,000 and $200,000--filmmakers instead will obtain a license from the composition owner and then record a cover version of the song to be used. Whether a song is being played on a radio or jukebox as background music or is used prominently as part of a soundtrack or commercial, or YouTube video, using the music will require a sync license.

Synchronization rights do not include the right to publicly perform music if your audio-visual project is transmitted to the public. In that case, you may need a public performance license from one of the performing rights organizations.

Obtaining Permission

Under copyright law, only music publishers can own and administer music copyrights and collect royalties and fees for copyrighted music on behalf of composers. An effort to secure permission to use a copyrighted work typically consists of identifying and locating the publisher and then contacting them. Licensing works under copyright for derivative works and other uses is a time-consuming and potentially expensive undertaking.

In order to use copyrighted musical works, you need to obtain permission. It is not enough merely to provide attribution when using another person’s intellectual property. To get permission you will need to take the following steps:

1) Locate the rights owner. This can be an individual, an agency, or a manager. Look for the copyright notice on the physical item (i.e. a print publication or recording). Check with the publishing agency. Search works registered with ASCAP, BMI or the Harry Fox Agency. For websites, look for links to “Licensing” or “Permissions.” You can also check the U.S. Copyright Office’s Public Registry for works registered from 1978 to present.

2) Request permission. In many instances, rights holders or their agents will have online or downloadable forms by which you may do this. You need to be specific in the type of use, i.e. commercial or non-profit, and the amount of the work used, format, and length of time. Permission is required when creating derivative works, such as arrangements and adaptations. For an example of permission types and forms, see the permissions pages for the publishing company Hal Leonard.

3) Read, sign, and return the agreement. Upon approval, read the agreement, sign, return by due date or upon publication, and pay fees. It is critical that you read and fully understand your licensing agreements. It is a legal contract.

Fair Use

In some instances, you may be able to use parts of works without obtaining permission if the use is determined to be a fair use. Section 107 of U.S. Code Title 17 includes the four factors by which courts determine if a use is fair or infringing. See our Fair Use page for more detailed information. 

*Many thanks to our friend and colleague, Naz Pantaloni, Indiana University Copyright Program Librarian, who offered considerable insight and content to these pages.

Copyright law protects “pictorial, graphic, and sculptural works.” Artwork may be two- or three-dimensional objects ranging from a small work on paper to a large-scale public sculpture or installation. Other creative artworks may exist only as digital objects. Visual art often relies on highly creative and original content, two aspects that are central for copyright protection.

Definitions of Pictorial, Graphic, and Sculptural Works

17 U.S. Code § 101 includes a lengthy definition for pictorial, graphic, and sculptural works including:

“…two-dimensional and three-dimensional works of fine, graphic, and applied art, photographs, prints and art reproductions, maps, globes, charts, diagrams, models, and technical drawings, including architectural plans.”

Useful Articles and the Conceptual Separability Doctrine

Copyright law for visual art also considers aspects of craftsmanship and form, protecting artistic design elements that can be identified separately from an item’s utilitarian function. If an object can be regarded for its creative, distinctive design elements, separate from its ability to be used as a functional object, then its creative elements are protected by copyright. An object that is more functional and “useful” as opposed to artistic will usually have stronger protections under patent law in Title 35 of the U.S. Code.

A recent test for the conceptual separability was clarified in 2016 by the U.S. Supreme Court in its review of Star Athletica, LLC v. Varsity Brands, Inc. The case decision held that original design elements positioning and arrangements of chevrons, lines, curves, stripes, angles, and diagonals added to cheerleader uniforms were copyrightable:

“A feature incorporated into the design of a useful article is eligible for copyright protection under the Copyright Act of 1976 only if the feature (1) can be perceived as a two- or three-dimensional work of art separate from the useful article, and (2) would qualify as a protectable pictorial, graphic or sculptural work -- either on its own or fixed in some other tangible medium of expression -- if it were imagined separately from the useful article into which it is incorporated…”

Exclusive Rights

Under section 106 of copyright law, owners of copyright have exclusive rights to do the following with their works:

  • Reproduce the copyrighted work in copies
  • Prepare derivative works based on the copyrighted work
  • To make and distribute copies by sale or other transfer of ownership, or by rental, lease, or lending
  • To perform and/or display the copyrighted work in public

Visual Artists Rights Act of 1990 (VARA) contained in section 106A added additional Rights of Attribution and Integrity for authors of visual works of art including rights to

  • Claim authorship of a work
  • Prevent the use of his or her name as the author of any work of art which he or she did not create
  • Prevent intentional distortion, mutilation, or modification of a work
  • Prevent any destruction of a work of recognized stature

The Visual Artists Right Act represents protections for moral rights. It strengthens the connection between the artwork and the reputation and standing of its author, allowing the author the right to prevent modification, distortion, or mutilation of his/her work even if the work has been sold. Changes not initiated by the original author are held to be “prejudicial to his or her honor or reputation.” VARA requires that artists receive at least 90 days’ notice so that the artist may have the opportunity to move or dismantle the work. In essence, even if a work is sold to a museum or collector, not all rights are transferred.

VARA has its origins in the Berne Convention for the Protection of Literary and Artistic Works, an international agreement that governs copyright. The United States became a party to the Convention in 1989. Article 6bis includes provisions for moral rights:

“…(1) Independently of the author's economic rights, and even after the transfer of the said rights, the author shall have the right to claim authorship of the work and to object to any distortion, mutilation or other modification of, or other derogatory action in relation to, the said work, which would be prejudicial to his honor or reputation.”

Sample Visual Artists Right Act and Moral Rights Cases

Kent Twitchell v. West Coast General Corp et al.-- In 2006, Kent Twitchell’s six-story mural, Ed Ruscha Monument, painted on a building owned by the U.S. Department of Labor, was painted over before the artist received any notification. He sued the U.S. Government and eleven other defendants for damages, ultimately receiving 1.1 million in a settlement.

5Pointz litigation—In 2018, multiple graffiti artists successfully sued New York City real estate developer Jerry Wolkoff for painting over multiple graffiti murals on buildings he owned. The artists were awarded $6.7 million in damages.   

Von Gerkan v. Deutsche Bahn (2006)—architect Meinhard von Berkan’s competition-winning design for a train station was significantly changed in order to cut construction costs. A different firm’s design “significantly defaced” von Gerkan’s original design. Von Gerkan’s intellectual property rights were violated and Deutsche Bahn was ordered to rebuild to the original plan specifications. The ruling meant that Deutsche Bahn would have to revert to the original design plans at an estimated cost of $25.9 – $51.7 million.