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Licensing 101: Public Domain

Published at: 11/29/2017

It’s that time of the year when TuneLicensing sees an influx of religious and traditional songs being recreated and released.  Some of these songs as we know them are in the Public Domain – No, this isn’t a dusty library, the Public Domain is a record of works that are no longer under copyright protection.

Every Song Has Two Copyrights: The Underlying Composition and The Sound Recording. The underlying composition is the music and lyrics as they would appear on a piece of sheet music.  From this copyright, infinite amount of sound recording copyrights can be created.  Every time a song is recorded, whether by a new artist, in a different key, with different instrumentation, or completely remastered, a new sound recording is created and the person or company who owns that recording owns its copyright.  However, even if you own the new sound recording you do not own the copyright to the underlying composition, and in fact must get permission to distribute your work. (That’s what we do!)  If someone wants to record the same song in the same style as you, they would also need to obtain permission from the songwriters.

Do copyrights ever expire?  Yes.  Most composition copyrights remain attached to the author, and expire within a predetermined amount of time after the last surviving author’s death.  Once the copyright expires, no human can make a legal claim to the work and it then enters the Public Domain.  Anything within the public domain (songs, plays, poems, books), can be used without permission, and in the case of a cover song, do not require a license.  If the composition was written and published as a Work Made For Hire, the copyright is then owned by a company.  This copyright duration is 95 years from publication, or 125 years from creation.  This is typical with jingles and film and tv scores.

There are a few very important things to consider with Public Domain material:

If a composer uses a Public Domain poem as lyrics and writes a new melody for a song, that new song is a new copyright and is not public domain.  The copyright will be owned by the composer and proper permissions will be needed for use.

Traditional songs that are re-recorded by contemporary artists, or re-arranged by composers other than the original, may have also acquired a new copyright for their underlying composition and these require permission.  For example, “Amazing Grace” is a public domain song, but Alan Jackson registered his version as a new copyright and this requires a license to use.

If you’ve purchased a recently released book of traditional songs, those arrangements will have a different copyright than the original, as will the book as a publication.  If your recording uses this arrangement exactly, you will need a license.

When do songs enter Public Domain? This completely depends on the duration of the copyright.  And no, there isn’t a set day or date that copyrights expire.  Congress has made a few significant updates to the Copyright Laws over the past hundred years, so it’s important to note when the song was originally published.

In 1909 the first copyright law stated that copyrights lasted for 28 years with the option to renew for an additional 28, for a total of 56 years from the date of publication.

In 1976, Congress updated the law so the copyright for works created after January 1, 1978 last for the life of the last surviving author plus 50 years.  And for works created before 1978 their 56 year copyrights were bumped up to 75 years.

In 1998 Congress tacked on additional time to this and it became the life of the last surviving author plus 70 years.

It is important to note that the first sound recording will not enter the public domain until 2067.

How do I really truly know if a song is in the public domain? It can be very difficult to prove that a song is in the public domain, and the easiest way to do so is to find proof of the earliest copyright.  This is normally found printed on original sheet music.

What happens if I request a license from TuneLicensing for a song and it is actually public domain? We’ll do our due diligence in proving that the song is PD and we will provide you with a full refund of the licensing fee and any applicable prepaid royalties.

 

Want to learn more?  Here are some excellent resources for information on Public Domain:

The Public Domain Information Project: www.PDInfo.com

The US Copyright Office: www.copyright.gov

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