Do I have a copyright once I perform a song in public?

March 27, 2012

Dear Music Lawyer,

If I sing a song in public before I copyright it, can someone steal my song? What if someone records my public performance?

—Juan

Dear Juan,

In the United States, whether you have a copyright in the song hinges on whether your song (1) is an original work of authorship and (2) has been "fixed in a tangible medium."

For purposes of this response, I will assume that you independently created your song and didn't use the words or melody from another song or copyrighted work. Therefore, I will focus on whether the song has been "fixed in a tangible medium."

According to the U.S. Copyright Act, a work is fixed in a tangible medium when it can be "perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device." In other words, once the work is no longer just an idea in your head and there's something that you can point to or play that demonstrates your "original work of authorship," then you have a copyright.

An example of fixing a song in a tangible medium would be writing down the lyrics and chord progression of the song on a sheet of paper. Another example would be making a demo recording of the song. (Note: The recording would not have to be high tech. I've recorded/fixed a number of my songs just using a basic iPhone app.)

Therefore, if you sing your song in public without having "fixed" the words and music in some way, then you do not have a protectable copyright interest in the song. However, if you record that public performance of the song, then you have sufficiently "fixed" the words and music and would have a protectable copyright interest in the song. (Tip: You would be wise to control who records the performance and to clarify what can be done with the recording.)

—Amy E. Mitchell