Music & Performers’ Rights

A song typically involves multiple copyrights. The lyrics are a literary work owned by the lyricist. The musical composition is a musical work owned by the composer. When the song is recorded, the sound recording is a separate copyright, typically owned by the producer of the recording. These are distinct rights held by different people unless assigned otherwise. A common misunderstanding is that the person who records the song owns all the rights. They own the sound recording, but the underlying lyrics and composition remain with their respective authors unless there is a written assignment.

This depends on the nature of each member’s contribution and whether there is a written agreement in place. If band members jointly create a musical composition where their contributions are inseparable, they may be joint authors with equal undivided shares in the copyright. If one member writes the lyrics and another composes the music, each may own their respective contribution separately. Sound recordings made by the band are a separate copyright. Without a written agreement addressing ownership, revenue sharing, and what happens if a member leaves, disputes are almost inevitable. We strongly advise bands to put a written agreement in place early, covering IP ownership, revenue splits, decision-making, and exit terms.

Performers’ rights are a set of rights granted to performers under the Copyright Act, distinct from the copyright in the underlying work or the sound recording. A performer has the right to make a sound or visual recording of the performance, reproduce it, issue copies to the public, communicate the performance, sell or rent copies, and broadcast it. These rights last for 50 years from the year of the performance. Importantly, performers’ rights exist independently of whether the performer is also the author of the underlying work. A singer who performs a song written by someone else still has performers’ rights in that performance. Assignment of performers’ rights must comply with the same formalities as copyright assignment under the Copyright Act.

Using someone else’s music requires clearing the relevant rights. For a sound recording, you need a licence from the owner of the sound recording (typically the record label or producer). For the underlying composition and lyrics, you need a licence from the music publisher or the songwriter. For a live performance, you may also need to clear performers’ rights. The type of licence depends on the use: a sync licence for audiovisual content, a mechanical licence for reproduction, and a public performance licence for broadcast or public playing. Using music without clearing rights exposes you to claims for infringement, damages, and injunction.

A sync (synchronisation) licence grants permission to use a musical composition or sound recording in timed relation with visual content, such as a film, advertisement, web series, video game, or social media video. A sync licence is negotiated directly with the rights holder and is separate from other music licences. The fee depends on the prominence of the use (background vs featured), the medium and territory, the duration, and the commercial value of the content. For a sound recording, you need a sync licence from both the owner of the recording and the owner of the underlying composition.

Royalties in the music industry flow from multiple sources. Mechanical royalties are earned when a composition is reproduced (physical or digital). Performance royalties are earned when a composition is publicly performed or broadcast, typically collected by collecting societies such as IPRS in India. Sync royalties come from licensing music for audiovisual use. Streaming royalties are paid by platforms like Spotify, Apple Music, and YouTube based on play counts. The Copyright Act’s 2012 amendments made the right to receive royalties for authors of literary and musical works incorporated in sound recordings or films non-waivable, meaning songwriters and composers are entitled to royalties even after assigning their rights. We advise on structuring royalty arrangements and ensuring that creators receive what they are entitled to under the law.

A recording agreement should specify the scope of the engagement (number of tracks or albums, exclusivity, territory), IP ownership and assignment terms (with the mandatory requirements under Sections 18 and 19 of the Copyright Act), royalty rates and accounting obligations, advances and recoupment terms, creative control provisions, release commitments, term and renewal options, and reversion of rights. A distribution agreement should additionally address the distribution channels (physical, digital, or both), territory, pricing, marketing obligations, reporting and audit rights, and takedown responsibilities. Artists should pay particular attention to the term, reversion clauses, and whether the agreement captures future formats and technologies that do not yet exist.