Which of the following acts violates copyright? Choose all that apply.
- Photocopying living American composer Philip Glass’ “Akhnaten” (1983) scores for a famous orchestra to perform for a live audience without paying.
- Using a portion of Frederic Chopin’s “Nocturne Op. 9 No. 2” (1830) in your new pop song.
- Recording your own quintet performance of “Strum” (2006) by Chicago Symphony Orchestra’s Composer Jessie Montgomery with her permission.
- Playing “Married Life” by Michael Giacchino, the song from Disney Pixar’s adorable film UP on FM/AM radio at the bookstore.
Correct Answers: A and D!
Let’s begin by learning more about copyright law and how it relates to music to understand why A and D violate certain rights.
Defining Copyright and Its Connection to Music
In general, copyright laws are intended to protect creative expression. So, they often cover things like books, artwork, movies, etc. In this post, we’re going to focus on copyright law just as it relates to music. Basically, a copyright owner has the right to exclude others from copying, adapting, distributing, publicly performing, and publicly displaying their work. These are known as 106 rights.
However, copyright owners can license their copyrighted works to others for certain uses and there are also some standard exceptions in the Copyright Statute. For example, the Copyright Act grants musicians an automatic license to create and distribute a “cover song” of another’s original work. Although there is no need to seek permission from the original artist, the musician who makes the cover song must pay royalty rates (a small fee that is typically a percentage) according to the statute.
There’s also a slight difference between copyrights in sound recordings (ie. CD, MP3 file, the recorded format of the music and lyrics) compared to the underlying musical composition (ie. the notes written on sheet music, the lyrics, the music). Sound recordings are in fact protected by copyright, but the exclusive right to public performance is very narrow. Sound recordings only have the right to exclude digital performances. So, a band can perform a cover of a song without violating the performance right of the sound recording. But of course, there could be a different type of copyright violation. For example, there could be a violation of the copyright in the musical composition. So, that would still be a violation of copyright, just not the specific right to publicly perform the work.
And importantly, a copyright doesn’t last forever! Rather, it lasts the length of the single creator’s lifetime plus 70 years. If there are multiple artists, then the copyright lasts the life of the last surviving artist plus 70 years. So, that means for works by artists who are dead for more than 100 years, there are no copyright protections to worry about. At that point, the work has entered the “public domain” which refers to information that anyone can freely use.
Now that we’ve gone over the basics of copyright protections, let’s revisit the answer choices from our trivia question.
Answer Choice A: Photocopying and Performing Scores of Glass’ “Akhnaten” Without Paying
Curious about new operas (compared to popular musicals like Les Misérables or Phantom of the Opera), I researched American composer Philip Glass. He has composed more than 25 operas, including “Akhnaten”.
Presumably, for answer choice A, this would require someone photocopying the entire “Akhnaten” music score without Glass’ permission and distributing copies to an orchestra to play for a live audience. First, photocopying violates the right to reproduce. Then, the performance before a live audience violates the right to publicly perform. Glass is entitled to exclude others from engaging in either of these actions in association with his musical composition.
Here, the orchestra should have received the creator’s permission by obtaining a license and likely should have paid some sort of fee for the license. Even if the orchestra performed its concert for free, it still violated the public performance rights of Glass.
Answer Choice B: Using Chopin’s “Nocturne Op. 9 No. 2” in Your Own Song
Rock music meets classical tunes? Strange combination, but the British trio Muse, an English rock band, decided to incorporate Chopin’s “Nocturne Op. 9 No. 2” into their track “United States of Eurasia/Collateral Damage.” The first portion of their song “United States of Eurasia” (up until 3:44) is a rock anthem “against the system” meant to challenge the purpose behind wars. The second portion “Collateral Damage” (up until 5:47) features Chopin’s “Nocturne Op. 9 No. 2,” which has been altered by Muse songwriter and frontman Matt Bellamy’s addition of a few notes and a string section. The use of Chopin is meant to resemble the innocence of children according to MuseWiki. One can hear the faint sounds of childlike laughter before the sounds of machine guns and a jet fighter to end the song.
You may be wondering how Muse can use Chopin’s “Nocturne Op. 9 No. 2.” Well, Chopin’s “Nocturne Op. 9 No. 2” is within the public domain because he died in 1849 and the copyright term expired.
What does it mean if something is in the public domain? It means the work is not covered by copyright, usually because the copyright has expired or because the artist has explicitly stated their intent for it to be in the public domain. So, anyone can freely copy, distribute, adapt, or perform the work in public without the permission of the individual artist or paying a fee. Original works from classical composers, such as Mozart, Vivaldi, and Beethoven can be found within the public domain. The public domain is a resource for people to study, use, and develop new creative works like what Muse did with Chopin.
Answer Choice C: Recording Your Quintet’s Performance of “Strum” with Permission
Not familiar with Jessie Montgomery? Neither was I until I attended the 2021 Washington Island Music Festival and heard a performance of her composition “Strum” at the festival, I learned that Montgomery is a New York native composer, violinist, and music educator. Additionally, she is the Mead Composer-in-Residence with the Chicago Symphony Orchestra.
“Strum” pays tribute to American folk idioms and movement through the plucking of strings. The reason why your quintet’s performance does not violate any copyright while playing her work is because your quintet has direct permission from Montgomery, the copyright holder, herself. You all are lawfully engaging in the use of her work. If she had instead denied the use of her music for your recording, then there would be an issue!
Answer Choice D: Playing “Married Life” by Michael Giacchino on FM/AM Radio at the Bookstore
This was admittedly a very tricky one, even for all of you Pixar fans out there! As we all know, music creates a special atmosphere for businesses. But, are they legally able to play whatever they want, however they want? The answer is no.
Remember earlier we said that copyright protection allows the copyright owner the exclusive right to publicly perform the music. But we also said that the right to publicly perform a sound recording is very narrow. And that’s true – it’s limited to digital audio transmissions. So, playing a non-digital radio channel, i.e. the FM/AM station mentioned in this answer choice, would not violate the right to publicly perform the song recording. However, we also noted earlier that there is often a corollary musical composition for which a full public performance right still exists. And that’s the case here. The composition of “Married Life” is covered by a current copyright since the composer is still alive. So, businesses are required to pay a licensing fee in order to play this song (and many others) at their establishment. Personally, I think there’s nothing better than the combination of good music and a good book, so I’d say it’s worth it!
For more on copyrights, read Andy Sutherland’s Legal Literacy in the Arts: My Journey with IP In the Misinformation Age. If you want more trivia, check out Senior Editor IP Bytes blogger Maggie DePoy’s Trademark Trivia, which features trademarks in sports!
Loyola University Chicago School of Law, JD 2023