Filmmaker-2-Filmmaker: Tip 5 - Why Public Domain Music Isn't As Cheap As You Thought

During my last year in film school, I got some bad advice.

I was working on my student film, the one that would have to play in the senior film festival. I had no budget and most of my actors and crew were generously donating their time to help me finish what I expected would be a masterpiece.

As post-production loomed, I began searching for music to score my film that fell within my budget - zero dollars. I was hoping to hire a local Providence-based band, but none of the ones I contacted were willing to do it for free. While I didn’t know much about copyright back then, I knew enough to avoid using popular songs and I didn’t want to get pinched for illegally downloading music (back then, Napster was all the rage).

Witnessing my plight, a friend suggested that I use classical music. His reasoning: the songs were composed hundreds of years ago and were in the public domain, so I wouldn’t have to ask anyone's permission and I definitely wouldn’t have to pay anyone for the privilege. Even better, classical music would give my film an air of sophistication, like 2001: A Space Odyssey. Because nothing demonstrates film school hubris quite like comparing your student film to one of the greatest pieces of cinema ever made.

Anyway, I followed my friend's advice and used classical music. The film played in the student filmfest and, while not exactly on par with Kubrick’s masterwork, it was moderately well received. I sent it off to some real film festivals and was rejected by all of them.

My friend was right about one thing: music composed before 1922 is not protected by copyright law. As a result, it lives in the public domain (meaning you can use it for any purpose without paying for it). But it was still bad advice. As I later learned in my producing career, where music is involved, not only is the song itself subject to copyright protection, the RECORDING of that song is also explicitly granted copyright protection. Which means that most music is protected twice under the law.

Why are recordings granted their own copyright protection? Because they're considered separate works of artistic expression. The copyright to a piece of music protects only the WRITTEN music and accompanying lyrics. The copyright to a recording rests with the specific audio RECORDING of the song. More than that, each separate recording - even if it’s of the same song - is granted its own copyright. A live recording of Eric Clapton’s Layla (like the famous MTV Unplugged version) has a separate copyright from the original recording which appeared on the 1970 album Layla and Other Assorted Love Songs because it's a completely unique and discrete interpretation of the song. And each of those copyrights stand apart from the copyright granted to the words and music as written by Clapton and his partner Jim Gordon.

Even if the music is in the public domain, copyright protection will still attach to recordings made after 1922. Just yesterday I was listening to a rendition of Fare Thee Well (Dink's Song) by Marcus Mumford and Oscar Isaac off the Inside Llewyn Davis soundtrack. The origins of the song can be traced to 1904, which means it predates modern copyright law. But a simple iTunes search will reveal dozens of recordings of the song by Bob Dylan, Pete Seeger, Dave Van Ronk, Jeff Buckley, Ramblin’ Jack Elliot, and many more. Each recording of the song gets its own copyright, even though the music and lyrics are no longer protected.

So the moral of the story for all you filmmakers out there: don’t do what I did and think you’re getting off scott free just because you chose some archaic piece of music that was popular during the Napoleonic wars. You’ll still have get permission from the owner of the recording's copyright.