The theme of this year's World Intellectual Property Day is IP and Music: Feel the Beat of IP.
IP rights play a pivotal role in the protection of music and maintenance of an equitable working environment for songwriters, composers and performers. Crucially, IP rights, in particular copyright, allow those working in the music industry to commercialise and monetise their creative works. Holders of such rights benefit from protection of their musical works, spanning appearances in film, entertainment, fashion, video games or consumer advertising.
Music & Copyright
The protection of rights in musical works is affected largely through copyright and related rights which, in Ireland, are provided for by the Copyright and Related Rights Act 2000, as amended ("the Act"). Copyright is vital in enabling artists and other creatives to monetise their original works by granting them the exclusive right to control the usage of their work. Under the Act, the 'author' or creator of an original work has the exclusive right to reproduce, distribute, publicly perform or adapt the work. Creators can then use their copyrights to monetise their original work by licensing or assigning the copyright in the work for a fee.
Copyright protection extends to various types of works including literary work, dramatic works, musical works, artistic works, typographical arrangements, recordings and broadcasts. There are often multiple copyrights and other intellectual property rights at play in any one musical creation or product. For example, an album will have separate copyrights for each song in the written lyrics (as literary works), the musical composition and the sound recording. This is in addition to any copyright that may arise in the album cover artwork or any other intellectual property rights, such as trade marks, which that artist may use on the album. If the album is performed at a gig, the performing artist will have additional rights including the right to authorise or prohibit the making of a recording directly from the live performance.
In Ireland there is no requirement to formally register copyright in a musical (or any other) work. The right arises automatically upon creation provided that the work created meets the threshold of being original. There is no statutory guidance in the act as to what test a particular work must meet in order to be deemed to be an original work and therefore qualify for protection. Guidance can be taken from European law which provides that the work must be identifiable as an expression of the creator's own intellectual creation reflecting their free and creative choices.
The duration of copyright will, depending on the right in question, typically be for the life of the creator plus 70 years. During this period, if another person or entity copies the whole or a substantial part of the original elements of the work, this will amount to copyright infringement under the Act.
Music and Other IP Rights
Other IP Rights such as trade mark and patents are equally important to the commercialisation of music.
- Trade Marks: A trade mark protects the name or logo that is used to identify the origin of the music. For example, a band might obtain trade mark protection for its band name and use it on its official merchandise. Establishing and protecting a brand is a key element of any commercially successful music artist today. For example, Taylor Swift is estimated to have filed over 350 trade mark applications for marks which protect her name, album titles, song lyrics and tour names such as The Eras Tour. Owning these trade mark rights allows her to control her own brand and prevent others from benefiting from her reputation.
- Patents: Patent protection also has relevance insofar as it can be a means of protecting new inventions and advancements in musical technology such as innovations in musical instruments and production equipment. Xylobands, the radio-controlled LED wristbands which have been popularised by artists such as Coldplay and used to create interactive light shows are a patent protected product.
Practical Tips for Protection
IP rights are a core part of the operation of the music industry, providing essential protection to artists and creators and allowing them a means by which to commercialise the work they do. From copyright which protects musical compositions and sound recordings, to trade marks which ensure that artists can control their brand identity, each type of IP right plays a role in encouraging creativity and innovation.
Although the IP protection strategy required for each type of work will vary, the following are a few general tips for those seeking to protect their intellectual property rights in the music industry:
- Ensure the music you create is your own original creation. While all musicians will take inspiration from other sources, you should take care to ensure you do not infringe on the copyright of other artists either (even subconsciously). If you are sampling other music or sound recordings in your work, or covering a version of another song, check to see if that work is still copyright protected. If so, get consent (by way of a licence) to use it.
- Protection granted by copyright only extends to musical works which are recorded in writing or otherwise, not the ideas and principles which underpin them. Adopt a proactive approach to the protection of your work. Ensure that it is recorded in a tangible form and timestamped. If not evidenced by metadata of electronic files, a creator may choose to send themselves a copy of the work via registered post, retaining the original proof of posting and the sealed envelope, to establish the existence of a work at a specified date and time. Alternatively, a creator may arrange to have a copy of the work notarised or deposited with a solicitor.
- Consider trade mark protection for your band or stage name. Having registered trade mark protection can greatly assist in taking action against those who might seek to capitalise off your brand by creating fake merchandise or selling counterfeit music.
Contributed by Nessa Boland.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
