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Do You Hear What I Hear: Copyright and the Song

Surely you do hear what I hear: It’s the sound of nostalgia (in the form of Christmas carols) floating in the background of every department store, coffee shop, and cute holiday gift market in town. Which, naturally, brings us to copyright and the song: the protection afforded to songs under U.S. law.

There are two protectable elements in a song: 1) the musical composition, and 2) the sound recording. Owning a copyright in one is not the same as owning the copyright in another.

Copyright and the Song

The Musical Composition

The musical composition consists of the music (think: chords or a melody line written on a piece of paper) and, if applicable, the lyrics. The owner of a musical composition is usually the songwriter. If the songwriter has a relationship with a music publisher, the publisher traditionally owns some (or all) of the copyright in the musical composition.

Copyright and the Song

 The Sound Recording

The sound recording consists of a record or “phonorecord” containing a particular performance of the song. If an artist signed to a record label records one of his or her songs, they may retain rights to the musical composition, but the sound recording is almost always owned by the record label.

Put This Into Context, Please

There are several Christmas carols in the public domain, meaning that the musical compositions themselves are no longer subject to copyright restrictions. This allows performers to create their own arrangements and perform those songs without having to license them from the songwriter or copyright-holder. However, the physical recordings of those songs are subject to different rights. Confused? Take Andrew Bird’s rendition of Auld Lang Syne, or Nat King Cole’s recording of Hark! The Herald Angels Sing. The musical compositions underlying these two songs are in the public domain, so you can record and sell yourself singing each song to your heart’s content. However, you cannot make copies of Andrew Bird or Nat King Cole’s recordings. The rights to those sound recordings (likely owned by the respective labels) are different than the rights to the musical compositions.

The Point: Musical compositions and sound recording are two different things, and just ’cause you own one, doesn’t mean you own the other. For a more technical description of the different copyrights in a song, see the Copyright Office’s Circular on the subject.