There are two copyrights in any recorded piece of music: 1)The copyright in the musical work (notes and lyrics); and 2)The copyright in the sound recording. Sound recordings were not granted copyright until Whereas most protected works are fixed in “copies”, sound recordings are fixed in “phonorecords”: “material objects [vinyl albums, cassettes, CDs, digital files…] in which sounds, other than those accompanying a motion picture or other audio-visual work, are fixed by any method now known or later developed, and from which the sounds can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.” (17 U.S.C. §101)

There are also a number of players in the music industry:  Songwriters  Music publishers  Recording artists  Record labels  The Harry Fox Agency, SoundExchange  Collective rights associations (ASCAP, BMI, SESAC)…

“Mechanicals” (compulsory licenses for mechanical reproductions of musical works) date back to player-piano rolls, and make use of standard royalty fees (9.1¢/song or 1.75¢/min, whichever is greater). These allow recording artists to record and distribute “covers” through physical phonorecords and through “digital phonorecords delivery” (but does not cover real- time transmissions). “Covers” in these cases must not change the “basic melody or fundamental character of the work” (otherwise, a derivative work is being created). Recording artists may also contact a representative for the music publisher (usually, the Harry Fox Agency) to negotiate a rate lower than the license detailed in the Copyright Act.

Copyright owners of sound recordings have an extremely “thin” reproduction right: This right does not protect against “sound alikes” (i.e. imitated but not simply duplicated). To qualify as a “derivative work” upon a sound recording, “the actual sounds fixed in the sound recording [must be] arranged, remixed, or otherwise altered in sequence or quality” (17 U.S.C. §114). Music “sampling” may involve two copyrights—that of the work itself and that of the recording sampled. Newton v. Diamond 338 F.3d 1189 (9 th Cir. 2004) Bridgeport Music, Inc. v. Dimension Films 410 F.3d 792 (6 th Cir. 2005)

The Audio Home Recording Act (AHRA) was enacted in 1992 to address digital audio tape (DAT) technology, though this tech is largely out of date. Nevertheless, the AHRA is instructive. The AHRA has three key parts: 1)Manufacturers of DAT recorders and tapes agreed to embed in DAT tapes technology that allows for a first- generation copy, but not subsequent copies (because DAT tapes do not naturally degrade with each generation of copying). 2)DAT manufacturers are required to pay a 2% royalty for each recording device and 3% on each tape sold, which are then pooled and distributed among copyright owners in musical works and recordings.

3)Personal, non-commercial use of DAT technology to copy copyrighted works was not subject to action (however, general-purpose computers are exempted from the AHRA’s bounds). As case-law determined that personal computers, MP3 players, and the like do not qualify as DAT devices, the literal application of the AHRA seems to be pretty much a dead matter when it comes to digital copying today.

The copyright owners of musical works enjoy a general right to publicly perform the works (the owners of copyright in the sound recordings do not). ASCAP was formed in 1913 to address problems of how royalties could be collected for performances of copyrighted works (in live venues and as “performed” recordings). A business can obtain a blanket license to play any song in the ASCAP catalogue (some 8.5 million works), with the sort of license and royalties determined by the type of business. When ASCAP introduced exorbitant fees for radio broadcast, radio broadcasters formed their own collective rights organization in 1939, BMI, which eventually lured in a number of performers (and today has a catalogue of some 6.5 million works). A third organization, SESAC, was established in 1940.

In 1998, Congress passed the Fairness in Musical Licensing Act (FIMLA), which outlined requirements about square footage and equipment type for businesses to play musical works without having to pay licensing fees (by way of radio and television broadcasts). FIMLA and its exemptions got the U.S. into some (still unresolved) hot water with the EU, which accused it of violating the TRIPs agreement (resulting in loss of revenue to European copyright owners).

Since sound recordings aren’t (generally) protected by a public performance right, no license is required of their copyright owners to perform them. In 1995, however, Congress passed the Digital Performance Right in Sound Recordings Act (DPRA), giving copyright owners of sound recordings control over public performances occurring “by means of a digital audio transmission” (with various exemptions and statutory licenses), with degree of control determined by how likely transmissions are to harm phonorecords sales.

In 1998, the DPRA rules were folded into the Digital Millennium Copyright Act (DMCA):  If performance of a recording can be controlled by the user, for instance, they are deemed “interactive” and permission is fully under the control of the sound recording owner, so permission is required.  In other cases, it may be that there are no restrictions (non-subscription transmission, like a radio station), or that a statutory license fee must be paid through SoundExchange (a sort of parallel to ASCAP) (subscription but non-interactive). Arista Records, LLC v. Launch Media, Inc. 578 F.3d 148 (2d Cir. 2009), cert. denied, 130 S. Ct (2010)