A K-pop-based Explanation of Music Copyright Part 4.

Posted by Joseph Hwang Joseph Hwang 8/15/2024

A K-pop-based Explanation of Music Copyright Part 4.

Joseph Hwang

1. Copyrightability of Music and Music Authors

Music composers, lyricists, and arrangers are authors who create musical works. First, these three creators can be legally recognized as authors because music belongs to art, which indicates a copyrightable field recognized by law, and copyrightability can be recognized if only the music they create is at least creative (labor theory).

Then, when one creates music, one becomes an author, and the author possesses the copyright at the moment of creation. If the creator does not transfer or trust the copyright to someone else, the creator is both the author and the copyright holder.

2. Joint and Composite Works

If the creator composed, wrote, or arranged the music alone, the completed musical work is the author's sole musical work. But if multiple people contributed to a musical's composition, lyrics, and arrangement, is the joint work or composite work?

First, you need to understand the concepts of joint and composite work. Paragraph 21 of Article 2 of the Korean Copyright Act defines joint work. "The term "joint works" means the works jointly created by two or more persons, and of which the part of their contributions may not be separately exploited;"

Under copyright law, a joint work must be: i) jointly created by two or more people; and ii) the parts of the work that each person contributed cannot be used separately. This is known as “separability to use,” meaning that a work created by two or more authors is a composite work if the contributions of each of the authors can be used separately by the user, and a joint work if the contributions are of such a nature that they cannot be used separately.

According to the above rules, popular music that combines lyrics with melody is a composite work, not a joint work. This is because the texts and melodies of musical works can be used separately. However, in a few musical works, two or more authors may jointly have composed a single tune or lyrics. In this case, they are only co-authors of those parts. Even if multiple writers contributed to a single tune or lyrics, the lines between their contributions are often blurred, and it can be delicate to recognize separate contributions.

The reason for categorizing a musical work as a joint or composite work is that there are differences in how the rights are exercised and used. A joint work requires the consent of all the creators to exercise their copyright property rights. Even if one of the creators opposes the exercise of the copyrighted work, the copyright law stipulates that the majority interests cannot be harmed. Therefore, although a joint work, the copyrights for co-authors' majority interests can be exercised. On the other hand, a composite work can be copyrighted separately, so if a license is obtained from the copyright holder of that part, the right can be exercised without harming other copyright holders. Therefore, when entrusting a musical work to a trustee organization for management, the authors should apply for their respective shares. When co-authors apply for copyright management, the music work trust organization accepts the application based on the applicant's application without requiring proof of their respective shares. If a dispute arises between co-authors, it is only a matter between the applicants.

Also, one of the reasons for the distinction between joint and composite works is the different duration of copyright protection. The copyright lasts for the life of the author and up to 70 years after his/her death (Article 39 (1) of the Copyright Act), but in the case of joint work, the copyright lasts for 70 years after the death of the last author (Article 39 (2) of the Copyright Act). Even if one of the co-authors dies before the other, the survivors or heirs of the deceased author will benefit from the extended protection period thanks to the last author. However, in the case of a composite work, the term of protection is limited to the part of the work that each author contributed.

Korean Copyright Act

Article 48 (Exercise of Author’s Economic Rights to Joint Works)

(1) Author’s economic rights to a joint work may not be exercised without the unanimous agreement of all the holders of author’s economic rights, and no holder of author’s economic rights shall be entitled to transfer by assignment or pledge his or her share of author’s economic rights without the consent of the other authors. In such cases, each holder may not prevent the agreement from being reached or refuse the consent in bad faith.

(2) The profit accruing from the exploitation of a joint work may be apportioned among authors according to the degrees of contribution by each author, unless otherwise stipulated. In such cases, if the degree of each contribution is not clear, the profit may be equally apportioned to all the authors.

(3) The holder of author’s economic rights to a joint work may renounce his or her share. In cases of renunciation or death of a holder of author’s economic rights without heir, his or her share may be apportioned among other authors according to the ratio of their holding shares.

(4) The provisions of Article 15 (2) and (3) shall apply mutatis mutandis to the exercise of author’s economic rights to a joint work.

To be continued in Part 5.

Series Articles

Part 1.

https://www.musicbusiness.co.kr/2024/08/a-k-pop-based-explanation-of-music.html

Part 2.

https://www.musicbusiness.co.kr/2024/08/a-k-pop-based-explanation-of-music_01103635833.html

Part 3.

https://www.musicbusiness.co.kr/2024/08/a-k-pop-based-explanation-of-music_01024960771.html

Part 4.

https://www.musicbusiness.co.kr/2024/08/a-k-pop-based-explanation-of-music_01817572733.html

Part 5.