Background

Under the US Copyright Act of 1976, copyright subsists in both musical works and sound recordings. [1] These different forms of intellectual property are treated differently under federal copyright law.

Songwriters are afforded five exclusive rights in their musical works. These are the:

  • The right to reproduce (i.e., make copies) their musical work;
  • The right to create derivative works (i.e., make adaptations) of their music work;
  • The right to publicly distribute (i.e., sell, lease, or lend) copies of their musical work;
  • The right to publicly perform their musical work; and
  • The right to publicly display their musical work. [2]

By contrast, recording artists are afforded fewer exclusive rights in their sound recordings. These are the:

  • The right to reproduce (i.e., make copies) their sound recording;
  • The right to create derivative works (i.e., make adaptations) of their sound recording by remixing, rearranging, or altering the sound recording in sequence or quality;
  • The right to publicly distribute (i.e., sell, lease, or lend) copies of their sound recording; and
  • The right to publicly perform their sound recording via digital audio broadcast. [3]

These rights are “exclusive” because only the songwriter and recording artist, or their respective agents, can authorize others to do these acts. [4] There are numerous exemptions to these rights, meaning that under certain circumstances others can engage in these acts without the songwriter’s or artist’s permission. For example, the fair use, in-person instruction, and nonprofit performance exemptions each allow others to use copyrighted works in certain ways without obtaining the copyright owner’s permission. [5]

Different Types of Music Licenses

The music industry uses various terms to refer to different music license types. Each license corresponds to one or more of the exclusive rights mentioned above:

          (A) Print (Stock Sheet) License. Print (stock sheet) licenses are licenses that allow the licensee to: (i) reproduce a copyrighted musical work in the form of sheet music copies, (ii) create a derivative work (i.e., a musical arrangement) of the musical work, and (iii) publicly distribute the sheet music as stock sheet music to the public at large. [6]

          (B) Print (Custom Arrangement) License. Print (custom arrangement) licenses are licenses that allow the licensee to: (i) reproduce a copyrighted musical work in the form of sheet music copies and (ii) create a derivative work (i.e., a musical arrangement) of the musical work, but the licensee is only allowed to publicly distribute the sheet music to the entity or ensemble specified in the license (as opposed to the public at large). [6]

          (C) Public Performance License. Public performance licenses are licenses that allow the licensee to publicly perform copyrighted musical works in a nondramatic setting (see Grand Rights License below). Generally speaking, any public performance of copyrighted musical works—including performances by ensembles, venues playing CDs over a PA system, and live and on-demand streaming of copyrighted musical works—require public performance licensing.

          (D) Synchronization License. Synchronization licenses are licenses that allow the licensee to reproduce copyrighted musical works in audiovisual recordings, whether made available in the form of DVDs, digital downloads, rebroadcasts, or via on-demand streaming. [7] Certain copyright owners might also assert that the synchronization license requires permission to create a derivative work of the copyrighted musical work, since it is being recast in an audiovisual recording, and may include such permission in their synchronization license agreement. However, this is not the typical understanding of synchronization licensing. There are numerous variations of synchronization licenses, such as theatrical release licenses (which cover films released in theaters), student film licenses (which cover student films), and television licenses (which cover television shows).

          (E) Grand Rights License (or “Adaptive Dramatic” License). Grand rights licenses are licenses that allow the licensee to publicly perform copyrighted musical works in a dramatic setting. A dramatic setting is a performance of copyrighted musical that is interwoven with a narrative or plot. Plays, musicals, ballets, and operas are all examples of dramatic performances that require grand rights licenses.

          (G) Mechanical License. Mechanical licenses are licenses that allow the licensee to reproduce a copyrighted musical work in a sound recording and publicly distribute that sound recording to the public. [8] For example, people wishing to make their own cover recording of a copyrighted musical work for public distribution require a mechanical license.

          (H) Remix License. Remix licenses are licenses that allow the licensee to create a derivative work based upon a copyrighted musical work by remixing, rearranging, or altering in sequence or quality a preexisting sound recording of that musical work, reproduce that remix in the form of CDs or digital downloads, and publicly distribute that remix, either to the public at large or to a specified recipient.

          (I) Master Use License. “Master use license” is a generic term used to describe all licenses for the use of sound recordings. Master use licenses will often follow the same terms and conditions as publishing licenses for the requested use, but will instead refer to the specified sound recording and artist being licensed (rather than the musical work and songwriter) and the record label granting the license (rather than the music publisher).

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[1] 17 U.S.C. § 102(a)(2) and § 102(a)(7).

[2] 17 U.S.C. § 106(1) to § 106(5).

[3] 17 U.S.C. § 114(a) and § 114(b); 17 U.S.C. § 106(1) to § 106(3), and § 106(6).

[4] 17 U.S.C. § 106 and § 501.

[5] See, e.g., 17 U.S.C. § 107 (fair use), § 110(1) (in person instruction), and § 110(4) (nonprofit public performance).

[6] Jann-Michael Greenburg, “Custom Arrangements: Print Licensing for the Digital Age,” in Oxford Handbook of Music Law and Policy (Sean M. O’Connor ed., 2021).

[7] Buffalo Broadcasting Co., Inc. v. A.S.C.A.P., 744 F.2d 917, 920 (2d Cir. 1984); Agee v. Paramount Communications, Inc., 59 F.3d 317, 322 (2d Cir. 1995); Angel Music, Inc. v. ABC Sports, Inc., 631 F.Supp. 429, 433 n.4 (SDNY 1986).

[8] See, e.g., 17 U.S.C. § 115.