What is a Song?

Music and lyrics?  Melody and harmony?  Rhythm and groove?  Yes to all.  But legally a song contains two distinct elements that implicate different rights, different royalties and different revenue streams. The two parts of a song are: 1) the underlying song or composition; and 2) the recorded performance of the song.

            The underlying song is embodied by the notes on a page of written music but exists in a more metaphysical sense as the thing created by the songwriter.  There can be many recordings of a song, but only one underlying song or composition.  For example, the song Help was written by Lennon/McCartney – they are the only songwriters and only Lennon/McCartney (or their publisher) will always own the underlying song or composition, unless sold or licensed to a music publisher.  Every time the underlying song is performed, live on the radio, television, internet or other media, the songwriter is entitled to a royalty for the use of the song, which is called a performance royalty or publishing royalty.  (17 USC 106)  The performance or publishing royalty is typically collected by ASCAP or BMI, usually through a publisher who pays the songwriter.

            The recorded performance of a song is a different copyright and different royalty.  Unlike the underlying song, there can be many recorded performances of Help by many bands, including the Beatles.  The recorded performance of the song is usually owned by the person paying for the recording – a music label or the recording artist if no label.  The label pays the artist who records the song a royalty based on the sales of the recording, called a sales royalty or artist royalty.  The amount of the sales or artist royalty is negotiated between the label and artist. 

            There is also a royalty owed by internet, digital or satellite broadcasters who play a recording of a song for use of the recording, usually called the Digital Royalty.  The Digital Royalty is collected by Sound Exchange.  The Digital Royalty is paid to the recording owner (usually the label) and is based on a statutory amount.  (14 USC 114(d)). 

            Lastly, there is the Mechanical Royalty, which is a royalty paid by the record label to the song writer or publisher for use of the underlying song in a recording.  The amount of the mechanical royalty is $.091 for songs 5 minutes or less, based on each recorded copy of the song.  (17 USC 115).  The same mechanical royalty applies for digital (internet) or physical (cd or album) reproductions of a song. 

            That is just the basics.  Over the next several Night Light newsletters I will address the many details and sub-issues raised by each of these royalties and begin to paint a picture where the art, business and law of music combine.