Copyright Issues for Music Therapists, Part One: Copyright Basics

All of us are familiar with the © symbol appearing on books and CD covers, and we’ve all seen the dire warnings from the FBI about copying videos, but we may know less about how copyright issues affect music therapy practice. I recently attended a continuing education class for music therapists about copyright issues as they relate to our profession. Our speaker, Donald R. Simon, J.D./LL.M, of the Kansas City Volunteer Lawyers and Accountants for the Arts, was exceptionally knowledgeable on this topic, and we easily could have filled several more hours learning from him. What I want to share with you are some of the highlights of this presentation. To keep these posts from getting too long, I will start with a post on the basics of copyright and follow this up with posts on how copyright law affects music therapists as creators of music and the issues of fair use and copyright infringement as they relate to music therapy.

Of course, I am not a lawyer, and I am by no means an expert on copyright law. As what I have written sparks questions relating to copyright issues in your own agency or practice, I encourage you to do further research on the U.S. Copyright office website or contact a lawyer near you. You might even be able to find a volunteer lawyer for the arts in your own area!

Copyright grants creators the exclusive right of control over their literary or artistic creations. This basic protection is meant to encourage creative production by giving an economic incentive to the creators. Believe it or not, the societal benefits of creative production were considered so important that the roots of copyright protection were established in Article I of the U.S. Constitution. Since then, the law has been revised at the federal level many times, with the most recent protections spelled out under the Copyright Act of 1976, as amended.

So what can be protected under copyright law? To qualify for protection, you must have an “original work of authorship that is fixed in a tangible medium of expression.” To break that down further:

1. The work must be original. The author created the work, and it is not simply a reproduction of existing material, although it may contain some pre-existing material. There is no requirement that the work must be especially novel or creative or important – it just has to be original.
2. It is a work of authorship falling into one of the categories defined by statute. These include musical works, including any words; dramatic works, including any music; literary works; sound recordings; pictorial, graphic and sculptural works; and motion pictures. A full list may be accessed in this U.S. Copyright Office circular.
3. It must be fixed in a tangible medium of expression. In other words, the work must be embodied on paper, film, CD, or other medium such that the work can be reproduced. It cannot be just a song in your head or music improvised on the spot that has not been recorded or transcribed.

If you create a work that meets all of these qualifications, it is automatically protected under copyright at the moment of creation. Yay! This means you have the following rights:

• To reproduce the work in copies
• To prepare derivative works
• To distribute copies
• To perform the work publicly
• To display the work publicly

For works created after March 1, 1978, these rights generally last for the lifetime of the author, plus 70 years, unless it is a work made for hire. No copyright notice or registration with the U.S. Copyright Office is required, although these may be valuable in dealing with infringement issues.

So you wrote a great song, recorded it to a CD, and now have the exclusive right to copy, arrange, sell, perform, and display that song publicly. Is it really that easy? Well, maybe yes, maybe no. Next time, we’ll look at potential issues that may arise for music therapists as creators of music.