Music and IP: kicking off on a high note by Eleonora Rosati

From Italy as the birth place of lyrical music to Jamaica and the roots of reggae, from New Orleans-born jazz to South Korea’s K-pop phenomenon, there is no country or society in the world and throughout history that has not enjoyed listening to, playing, and making music.

Through music, it is possible to express and convey the full range of human emotions and tell the stories of others who happen to be exactly like us: in other words, music is a form of creative expression that transcends cultures, languages, and time. 

Like all forms of creative expressions, intellectual property (IP) rights are key to protect music, as well as music ‘workers’ like composers, performers, and producers. It is thus very appropriate that this year’s World Intellectual Property Day celebrates the contributions of creators, inventors, and entrepreneurs who are pushing the boundaries of innovation and creativity in music. 

Although it is clear that IP is key to protecting music, have you ever wondered how the various IP rights contribute to all of this? Let’s find out!

Songwriters, performers, and music producers

There is little doubt that copyright is the cornerstone of the music industry. A song is a complex creation, built thanks to several creative contributions. Sometimes, all of these come from a single person - as in Taylor Swift’s Love Story, which she wrote herself. Other times, songs are the result of teamwork.  Another “Swiftie” example is Shake It Off, a song that Taylor Swift wrote together with Max Martin Shellback. The number of authors and rightholders affects how rights are managed, licensed, and, of course, monetised.

Then, of course, there are rights that are ‘related’ or ‘neighbouring’ to copyright. For example, performers – whether it is singers, musicians or dancers – enjoy rights over their own performances, which include for example the possibility to authorise or prohibit their recording during a concert. Producers enjoy legal protection over the investment that they make into music. That means that musicians and DJs like the late Avicii own rights over the phonograms that they produce.

Copyright protects original works, but where do you draw the (legal) line between protected and unprotected elements, infringement and lawful inspiration? It’s not easy to tell! Just think that unauthorised musical sampling has been at the centre of litigation in Germany for over 20 years in the context of a case brought by Kraftwerk against music producer Moses Pelham, currently pending (once again) before the EU Court of Justice. In the UK, the estate of Marvin Gaye was unsuccessful in its claim that Ed Sheeran – by creating and releasing Thinking Out Loud  – had infringed copyright in Let’s Get It On, while a few years prior that same estate had succeeded in a copyright infringement claim in the USA against Robin Thicke and Pharrell Williams over their song Blurred Lines.

Names of artists and musical instruments

Music can be also protected in other ways through trade marks and designs. For example, names like those of British artist Liam Gallagher and Belgian artist, composer and performer Stromae are registered EU trade marks and so are the brands of several musical instrument manufacturers, including ‘Guitarras Manuel Rodriguez and Sons’ and ‘Fender’. In Europe it is also possible to register sounds as trade marks: just think of Italian film production company Lucky Red’s signature melody or Spanish communication company Telefonica’s chime.

Of course, it is also possible to secure design protection for several music-related objects and tools, including the very appearance of musical instruments like accordions, pianos, and saxophones.

Music between heritage and innovation

On the topic of musical instruments, traditional ones have the potential to be protected in other ways, including through Geographical Indications (GIs). GIs are a form of IP that protects the reputation and/or qualities of a product which depend on the specific production and manufacturing standards and its place of origin. Recently, the EU legislature introduced a system of EU-wide protection for craft and industrial products, which will see the European Union Intellectual Property Office (EUIPO) having the key role of examining and granting these GI registrations. Among them, it is not excluded that there might be also ‘objects’ linked to music.

In all of this, like any other creative system, music is fuelled by continuous innovation and it is indeed possible to protect inventions through patents. For example, did you know that the inventor of Auto-Tune, Stephen Cooper, filed patent applications in several countries around the world starting 1998? As another example, German company Sennheiser holds numerous patents for pioneering audio equipment, including the world’s first open-back headphones and advanced wireless microphone systems. These inventions - whether digital tools or physical devices - have had a profound impact on how we produce, perform, and experience music.

The role of IP offices, including the EUIPO

As we have seen, music can be protected in several ways through IP and this is key to ensure the sustainability and long-term viability of the industry and its workers. Of course, for IP to do its job, IP offices are also key.

The EUIPO is committed to supporting creativity and innovation, including in music. Its Strategic Plan 2030 outlines a proactive approach to meet evolving demands. Among the strategic goals, there are to promote the use of IP rights and build trust and respect for IP. Both are key: the former is necessary to secure protection for one’s own intangible assets, while the latter is pivotal in ensuring the effectiveness of such protection – through education, awareness-raising, and enforcement.

In 2024, the EUIPO, together with Europol, published a report that amongst others addresses the impact of piracy on the music industry. The findings show that music remains one of the most affected areas when it comes to illegal streaming and unauthorised downloads - emphasising the need for continued cooperation, enforcement, and public awareness to protect rights and revenue in the digital age.

As technology and creativity continue to evolve hand in hand, a strong and well-respected IP framework remains essential to ensure that music - and those who create it - can continue to thrive.

Source: https://www.euipo.europa.eu/en/news/music-and-ip-kicking-off-on-a-high-note-by-eleonora-rosati