Francis Scott Key penned America’s national anthem, “The Star-Spangled Banner”. The song, originally a poem, titled “The Defence of Fort McHenry” was written after Key witnessed the British bombard the Maryland fort during the War of 1812.  Key was moved and inspired at the sight of the lone U.S. flag flying high over Fort McHenry amidst the rubble and destruction. This scene was reflected in the words of the now famous anthem: “[a]nd the rockets’ red glare, the bombs bursting in air, gave proof through the night that our flag was still there.”

The poem was later set to the music of a popular drinking tune by composer John Stafford Smith called “To Anacreon in Heaven”. The song became very popular after the Civil War with patriotism at a high.  People started referring to the tune as the “Star Spangled Banner”.  In 1916, President Woodrow Wilson declared that the song should be played at all official events. On March 31, 1931, Congress declared the “Star-Spangled Banner” as the national anthem of the United States of America.

As we hear the anthem sung at events around the country and the world, some often wonder, who owns the rights to the “Star Spangled Banner”?

The answer to that can be complicated. Since the song was declared the national anthem of the United States, the copyright became public domain to all U.S. citizens and enterprises. However, mechanical, publishing, and performance rights may still apply.

Mechanical rights are the rights obtained from a creator or publisher to record and distribute their works or rights held by the person or persons whose performance was recorded (i.e. vocalist, instrumental, comedian, etc.). Once the song is published it can be recorded by anyone as long as a fee is paid and a mechanical license is obtained.

Publishing rights are intellectual property rights to the sound recording that can be bought or sold to parties that may or may not have any involvement with the recording. The owner of these rights has the control of where and how the recording is obtained or broadcast. These rights are not defined by a statute, rather it is a term recognized in the music industry.

Performing rights are a copyright owner’s exclusive right to control the public presentation or a work, either live, through broadcast, or in moving image or sound recordings. This is part of copyright law and payment is required to the composer, lyricist, and publisher, if one was used.

To put this all together, for example, when the National Anthem is sung, broadcast, or recorded during a televised National Football League (NFL) game, the NFL owns the mechanical, performance, and publishing rights for that specific performance. The same rules apply to anthems sung by other organizations such as Major League Baseball (MLB), National Basketball Association (NBA), etc.

Fortunately, for those who enjoy singing in the shower or displaying their vocal talents on YouTube, feel free to sing the National Anthem loudly and proudly!

Suiter Swantz IP is a full-service intellectual property law firm based in Omaha, NE, serving all of Nebraska, Iowa, and South Dakota. If you have any intellectual property questions or need assistance with any patent, trademark, or copyright matters and would like to speak to one of our patent attorneys please feel free to contact us.