A common misconception is that all “old” songs are not protected by copyright law. While this is certainly true in some cases, it’s important to understand that determining the length of copyright protection for any particular song is not that simple. Copyright protection can last for a very long time.
The duration of copyright protection depends on when the song was created:
- Songs created on or after January 1, 1978, are protected for 70 years after the death of the individual author. Where there are two or more individual authors, the term lasts for 70 years after the last surviving author’s death. For “works made for hire,” the term of protection is 95 years from publication or 120 years from creation, whichever date is earlier. (A “work made for hire” is “a work prepared by an employee within the scope of his or her employment” or “a work specifically ordered or commissioned for use as a contribution to a collective work, [or] as part of a motion picture or other audiovisual work … if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.” In the case of a “work made for hire,” the employer, not the individual writer, is the “author” and owns the copyright.)
- The copyright term for songs created before but published or registered after January 1, 1978, is generally computed in the same way as for works created on or after January 1, 1978 (provided that in no case would the term of such copyright expire before December 31, 2002, and for works published on or after that date, the term will not expire before December 31, 2047).
- Songs created and published or registered before January 1, 1978, are generally protected for 75 years from the date the work was published with a copyright notice or on the date of the registration if the work was registered in unpublished form. For such pre-1978 copyrights still subsisting on October 27, 1998, Congress extended the term by 20 years providing for a total term of protection of 95 years.
The song Happy Birthday to You is an oft-cited example of the durability of copyright protection. The melody to Happy Birthday to You was first published in 1893, and the song was copyrighted in 1935. Today, the company claiming to own the copyright to the song says it is valid until 2030, and it collects nearly $2 million in licensing fees every year on the song. Though the validity of this claim is in question, it is an example of the peril of assuming that something extremely old and extremely widely used is in the public domain.
The website www.publicdomainsherpa.com has a web-based copyright term calculator to help you determining whether (or when) a particular song is (or will be) in the public domain.
This post is the one in a series of posts discussing the basics of music copyright law. This series of posts can be located by selecting the Blog category “Copyright 101.”
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