The recent battle for the rights to create an autobiography of music legend Brenda Fassie's life – as well as the recent court battle in which rising hip hop star Fifi Cooper's former record label prohibited her from claiming any rights to the music that she had created during her tenure with said label – have both raised questions around who owns the copyright of musical works.

Legal framework

'Copyright' is broadly defined as an exclusive right – in relation to a work embodying intellectual content – to perform or authorise others to perform certain acts in relation to that work, where such act represents the manner in which the work can be exploited for personal gain or profit. The copyright in works subsists automatically and vests in the author as and when the work is reduced to material form. However, an exception to this rule includes works which are created in the course of an author's employment by another person under a contract of service or apprenticeship.

Copyright cannot subsist in an idea until it has been:

  • written down;
  • recorded;
  • represented in digital data or signals; or
  • otherwise reduced to material form.

A 'musical work', as defined by the Copyright Act (98/1978), is a work consisting of music, exclusive of any words or action intended to be sung, spoken or performed with the music. Any words that accompany a musical work are defined separately as a 'literary work'. Such an original work need not be formally registered in order to be protected, as the rights relating to the copyright of a musical work vest in the author of the work once it has been recorded or written in material form.

Music rights associations

However, the vesting of copyright in a musical work should not be confused with registering the music with a music rights association, such as the Southern African Music Rights. The effect of registration with such an association is the issuance of a certificate of notification, which serves as a form of proof of ownership of the rights in a musical work.

Publishers and record labels

Where the author of a musical work uses a publisher or record label to manage the distribution of their music, certain measures must be implemented to ensure the protection of the work and any financial gain or benefit derived therefrom. The issue of ownership of a musical work must be clarified from inception, through an agreement between the parties, when working with a publisher or record label. Where the copyright in a musical work has been assigned, whether by the author or the publisher or record label, this assignment must be in writing. An agreement of assignment encompasses the transfer of the rights held by one party (ie, the assignor) to another party (ie, the assignee).

The publisher or record label will also be responsible for:

  • marketing the music;
  • negotiating transactions with other artists, producers and users; and
  • administering any royalty income earned from the music.

This means that a licensing agreement is essential in this relationship in order to determine, beforehand, important issues such as:

  • the percentage of revenue from the sale of CDs and downloads to which each party is entitled;
  • the scope of use;
  • exclusivity;
  • the transfer of copyright; and
  • the duration of use.

This will prevent authors from signing away their rights in perpetuity.

Comment

For musicians, securing the protection of and ownership in their work is as important as the work's conception. In order to avoid costly mistakes, musicians should consult a suitably skilled attorney from the inception of their musical works so that sufficient measures can be taken to ensure that any agreements into which they enter are fair and that the ownership of their works remains vested in them, as the author.

For further information please contact Thando Zibi at KISCH IP by telephone (+27 11 324 3000) or email (thandoz@kisch-ip.com). The KISCH IP website can be accessed at www.kisch-ip.com.

This article was first published by the International Law Office, a premium online legal update service for major companies and law firms worldwide. Register for a free subscription.