Music copyright is not one right. Every recorded song carries two separate copyrights: the musical work, meaning the composition of notes and lyrics, and the sound recording, meaning the particular captured performance of it. They arise under different subsections of the statute, they are often owned by different people, they are licensed through entirely different channels, and one can be infringed while the other is untouched.
This split explains almost everything that confuses people about the music business. It is why a cover band can record a Beatles song without asking permission but a filmmaker cannot drop the Beatles’ recording into a trailer. It is why AM radio pays the songwriter and pays the singer nothing. Get the two-copyright structure right and the rest of the field becomes legible.
17 U.S.C. § 102(a) lists eight categories of protected work. Two of them are music. Subsection (a)(2) covers musical works, including any accompanying words. Subsection (a)(7) covers sound recordings, defined in § 101 as works resulting from the fixation of a series of sounds.
Take “Respect.” The musical work is what Otis Redding wrote in 1965: the melody, the harmony, the lyric. The sound recording is what Aretha Franklin and the Muscle Shoals players fixed to tape at Atlantic in 1967. Redding wrote the song. Franklin did not. Franklin’s version is the definitive one, and it is a separate copyrighted work layered on top of his.
Ownership follows that line. The musical work typically belongs to the songwriters, who assign a share to a publisher that administers it. The sound recording, in the traditional label deal, belongs to the record company, because the recording contract makes it a work made for hire or assigns it outright. This is why a legendary artist can be barred from using their own early recordings while freely re-recording the underlying songs. The composition and the master are different property.
Both copyrights draw from the same list of exclusive rights in § 106, but they do not draw the same ones.
That last asymmetry is the strangest feature of American music law, and it is deliberate rather than accidental. When a terrestrial station spins a record, it publicly performs the composition and owes the songwriter, collected through ASCAP, BMI, SESAC, or GMR. It also performs the recording, but since § 106(6) reaches only digital transmissions and AM/FM broadcast is not one, the performer and label are owed nothing. Congress added the digital right in 1995, when webcasting looked like a threat to record sales, and never went back to fix the analog gap. Satellite and internet services do pay, at statutory rates, through SoundExchange under § 114(d)(2). Most other countries pay performers for broadcast; the United States is the conspicuous holdout.
You do not need permission to record a cover. Section 115 creates a compulsory mechanical license: once a musical work has been distributed to the public in phonorecords with the copyright owner’s authority, anyone else may make and distribute their own recording of it by complying with the statute and paying the set rate. The owner cannot say no and cannot pick the price. They can only be paid.
The limits matter. The license covers the composition only, never the master, which is why you may re-record the song but may not use the original recording. It does not authorize sync, meaning use with moving images. And § 115(a)(2) permits arrangement to suit your style but not a change to the basic melody or fundamental character of the work.
The Music Modernization Act of 2018 rebuilt the front end of this. Rather than serving notice song by song, digital streaming services now take a blanket license administered by the Mechanical Licensing Collective, which has run the database and paid out mechanicals since 2021. Sync licensing, by contrast, has no compulsory mechanism at all. It is a free negotiation, and it requires clearing both copyrights from both owners, which is why placing a well-known record in a film is expensive and slow.
Sound recordings only entered federal copyright on February 15, 1972. Everything fixed before that date, meaning most of the recorded jazz, blues, and early rock catalog, sat outside the federal system and was governed by inconsistent state common law and criminal statutes with no clear expiration. Litigation by Flo and Eddie of the Turtles against satellite and streaming services in the 2010s exposed how unworkable that was.
Title II of the Music Modernization Act, the CLASSICS Act, added 17 U.S.C. § 1401 and pulled pre-1972 recordings into the federal scheme for remedies, with a defined sunset. Recordings first published before 1923 have entered the public domain. Those published from 1923 through 1946 get 100 years from publication. Those from 1947 through 1956 get 110 years. Anything from 1957 to February 15, 1972 is protected through February 15, 2067. Digital services now pay statutory royalties on those recordings rather than litigating fifty states’ worth of common law.
Music infringement runs on the ordinary two-part showing: the plaintiff must prove copying and that what was copied was protectable expression taken to an unlawful degree. Both halves have produced music-specific doctrine.
On copying, intent is irrelevant. Bright Tunes Music v. Harrisongs Music, 420 F. Supp. 177 (S.D.N.Y. 1976), held George Harrison liable for “My Sweet Lord” on a theory of subconscious copying: the court accepted that he did not deliberately lift “He’s So Fine,” found he had heard it, and held him liable anyway. Access plus a melody you absorbed years ago is still infringement.
On protectable expression, the boundary has tightened considerably. Williams v. Gaye, 895 F.3d 1106 (9th Cir. 2018), affirmed the “Blurred Lines” verdict against Robin Thicke and Pharrell Williams, which ended in a judgment near $5 million plus half the song’s future royalties. The alarm it caused was about scope: critics read the case as protecting a groove and a feel rather than any copied melody, and the dissent argued exactly that. Two later decisions pushed back hard.
Skidmore v. Led Zeppelin, 952 F.3d 1051 (9th Cir. 2020) (en banc), rejected the “Stairway to Heaven” claim and, more consequentially, abolished the inverse ratio rule, which had let plaintiffs lower the similarity they needed to show by proving strong access. In a streaming world where everyone has heard everything, access proves nothing, and the Ninth Circuit said so. Then Structured Asset Sales v. Sheeran, 120 F.4th 1066 (2d Cir. 2024), affirmed summary judgment for Ed Sheeran against a claim built on “Let’s Get It On,” holding that a four-chord progression combined with commonplace harmonic syncopation was too unoriginal to protect even as a selection and arrangement.
The through-line: chords, scales, rhythms, and stock devices are the shared vocabulary of music and belong to everyone. Copyright reaches the original expression built from them, not the building blocks.
What is music copyright? Music copyright is really two separate copyrights in every recorded song. The musical work, meaning the notes and lyrics, is protected under 17 U.S.C. § 102(a)(2) and is usually owned by the songwriters and their publishers. The sound recording, meaning the specific captured performance, is protected under § 102(a)(7) and is usually owned by the performer or the label. They can be owned by different people, licensed separately, and infringed independently.
Why does radio pay songwriters but not singers? Because sound recordings have no general public performance right in the United States. Section 106(4) gives musical works a full performance right, but § 106(6) gives sound recordings a performance right only for digital audio transmission. AM/FM broadcast is analog and non-digital, so a terrestrial station owes the songwriter through ASCAP or BMI and owes the performer nothing. Internet and satellite services do pay performers, through SoundExchange under § 114.
Are pre-1972 recordings protected? Yes, since the Music Modernization Act of 2018 added 17 U.S.C. § 1401. Before that, recordings fixed before February 15, 1972 sat outside federal copyright and were governed by a patchwork of state law. Section 1401 gives them federal remedies on a schedule: recordings published before 1923 entered the public domain, 1923 to 1946 recordings get 100 years from publication, 1947 to 1956 recordings get 110 years, and anything from 1957 to February 15, 1972 is protected through February 15, 2067.
Can you copyright a chord progression or a groove? A chord progression, a scale, a rhythm, and a common musical building block are not protectable on their own. They are the raw vocabulary of music, the equivalent of stock words. Courts protect an original selection and arrangement of unprotectable elements, but the combination has to be genuinely original. In Structured Asset Sales v. Sheeran (2d Cir. 2024) a four-chord progression paired with commonplace syncopation was held too unoriginal to protect.
Going further: How to license music, sync and master rights explained .
This page is general legal information, not legal advice, and it does not create an attorney-client relationship.
The My Sweet Lord case: George Harrison infringed He's So Fine without meaning to, because access plus substantial similarity requires no intent to copy.
The Ninth Circuit held the Beastie Boys' six-second flute sample was de minimis copying of James Newton's composition that no average audience would recognize.
The Second Circuit affirmed that Ed Sheeran's 'Thinking Out Loud' does not infringe 'Let's Get It On,' reaffirming that a common chord progression and harmonic rhythm are not protectable, and that pre-1978 song copyrights are bounded by the deposit copy.
The Ninth Circuit threw out a $2.8 million verdict against Katy Perry, holding that the short 'Dark Horse' ostinato consists of commonplace musical elements too unoriginal for copyright protection.
The Ninth Circuit held that the de minimis exception applies to sound-recording copyrights, clearing Madonna's 'Vogue' of a sampling claim and openly splitting with the Sixth Circuit's Bridgeport rule.
The en banc Ninth Circuit's decision upholding the 'Stairway to Heaven' verdict, confining old compositions to their deposit copies, and abolishing the inverse ratio rule.
The Ninth Circuit's decision affirming that 'Blurred Lines' infringed Marvin Gaye's 'Got to Give It Up' and the enduring fear that copyright can now protect a song's groove and vibe.
How the Sixth Circuit's Bridgeport Music v. Dimension Films created a near-absolute rule against unlicensed sampling of sound recordings, and why the Ninth Circuit later refused to follow it.
