Music therapists encounter copyright issues all the time in their professional work, sometimes by creating new works and sometimes by performing or otherwise disseminating other people’s creative work. In part one of this series, we looked at the basic purpose of and qualifications for copyright protection. In this post, I will discuss potential implications of copyright law for music therapists as creators of new works.
The three posts in this series are my summaries of and reflections on a presentation by Donald R. Simon, J.D./LL.M, of the Kansas City Volunteer Lawyers and Accountants for the Arts. I am not a lawyer, however, so 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.
Music therapists often create music as part of their work with clients. Some of what we create may be protected under copyright law, but some is not. As discussed in part one of this series, to qualify for protection under copyright law, your creation must be an original work of authorship that is fixed in a tangible medium of expression. Copyright attaches at the moment of creation, and gives you a bundle of rights, including the rights to copy, arrange, sell, and perform that work. How does this apply to particular situations music therapists encounter?
What if I make up a song during a session?
Songs that you as the music therapist make up on the spot in a session or music that you improvise to match a client’s movements or words do not immediately meet the requirements for copyright. Once they are notated or recorded, however, they do qualify for copyright protection.
What if I compose an original song together with a client or group of clients?
If the song is recorded or notated, then technically it does qualify for copyright protection with all composers (the therapist and the clients) having equal rights to the creation. Should the work be copied or sold, though? This is where ethical considerations enter the equation. For one, confidentiality standards would preclude music therapists from sharing this musical material without informed consent from the client. But what if the client wants to make a CD of these songs and give it to friends? What if the client wants to sell the CD? Should the music therapist encourage or discourage this? Should the therapist share in any profit? These are issues that copyright law does not address directly, and it would be wise to consult with professional colleagues/supervisors on the clinical considerations in addition to talking with a lawyer to deal with legal issues.
What if I compose an original song for a client or group of clients?
This is where things get tricky, in my opinion, because in some cases, your songs may be considered works made for hire. This would change the copyright protection afforded to your creative work.
Generally speaking, when someone creates a work, they immediately become the original owner of the copyright, but when the work is created at the behest of someone else, ownership may belong to the buyer rather than to the creator of the work. A basic example is a commercial jingle – when someone writes a jingle for a company, the company owns the copyright, not the original composer.
One key legal question is whether the creator was an employee or an independent contractor. If you are an employee and the work was created within your scope of employment, then copyright ownership automatically belongs to the employer. If you are an independent contractor, however, you may claim original ownership of the copyright. Whether you are considered an independent contractor for copyright purposes depends on several factors, including which party supplied the equipment, the length of the parties’ relationship, the hiring party’s right to control how the work is accomplished, and the artist’s discretion over when and how long to work.
How does this affect music therapists? It does appear that the copyright for songs we write for clients as part of our jobs could belong to our employers, which would mean that it would be a copyright infringement to sell a CD of the songs we wrote as part of our jobs or to perform these songs at our next place of employment.
There are two ways to handle this issue and make sure that the copyright protection belongs to you. You could deal with this in advance by specifying in your employment agreement that you own any copyright to compositions you create while employed there. You can also handle this after you’ve created works by asking your employer to give you a written transfer of copyright ownership for any compositions you created while under their employ. You might follow this by giving your employer a perpetual, non-exclusive license to use those compositions in their business – this means any of their future therapists, teachers, etc. can continue to use the songs that work for their clients. This is probably all they want anyway, right?
What if I want to give up my copyright protections?
If you own the copyright to your work, you are certainly free to give up any of those rights named above and allow other music therapists to benefit from your creative work! You just need to specify in writing what rights you are giving up and which you want to maintain. For example, you could give people permission to use your recordings in therapy groups but not to give away or sell recordings to the public. You could give permission for people to make arrangements of your song (new verses, anyone?) but not to claim this as their own original song. You could even retain all of your rights and still give away recordings of your music for free. The point is that you own the copyright, so you get to decide how much or how little control you want to maintain over your music.
Of course, you could also simply choose not to sue anyone for copyright infringement if they are using your creative works. Music therapists, however, must assume that copyright protections are in full force for all creative works, unless they have written permission from the copyright holder to use a work or unless they can definitively determine that the works are in the public domain. How to handle using other people’s creative works will be our topic in the next post. Stay tuned!