Copyright

 

WHAT IS A COPYRIGHT?
The question I am most frequently asked is whether a band has to send their material to the Copyright Office in Washington D.C. to keep other people from stealing their ideas. The short answer is no. As soon as you write down your lyrics or record your music (even on your portable cassette recorder), you have a copyright and no one can steal it. From the instant your material is "fixed in a tangible medium of expression" it is copyrighted and protected. By sending your tape to the Copyright Office, you are registering your copyright. So, if you hum a song in your head-no copyright; but, the minute you write it down or record-copyright. Once you put your ideas into tangible form, you have all the copyright you need to prevent someone from stealing your material. What you do need to be concerned about is to being able to prove when you created the musical work. If someone does steal your material, you have to prove that you thought it up first. The most popular way to date your work is what is known as the poor man's copyright. This involves sending a copy of your tape or lyrics through the mail (certified return receipt requested) to yourself. When you receive the package in the mail, do not open it; save it in its unopened condition. What this does is put a date on the recording which would be the day you mailed it. If you had to go to court, you could give the unopened tape to the judge and prove when you created the work. This procedure, however, does not afford any legal protection. I never recommend this route to bands.
As soon as you have a copyright, you can use the copyright notice which is written "©". You do not have to register with the Copyright Office in order to use this symbol. Whenever you write your songs down or record them, always include your name or the band's name and the copyright notice. This puts the world on notice that you are claiming a copyright in the material. Since March, 1989, it has no longer been necessary to place the © sign before a copyright notice. Under prior law, if you did not place the magical © sign on your work, you lost protection. Even though it is no longer required, there are reasons why you would still want to use the © sign. First, there are other countries where
the © sign is still required. You would not want to lose your protection in these countries. More importantly, it helps prospective users locate the copyright owner in order to secure the appropriate licenses.

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HOW TO REGISTER YOUR COPYRIGHT
As I explained in What is a copyright?, as soon as you write your song down on paper or record it on tape, you have a copyright. You do not need to send your material to the Copyright Office in Washington D.C. to copyright your songs. What you do with your tape is you register it with the Copyright Office. This article will tell you how to do this easy task. The first thing you must do is get the proper forms. Since this the federal government, there is a form for everything. Fortunately, the copyright forms are easy to obtain. The easiest way is calling the Copyright Office form request line. The phone number is (202) 707-3000. You can also write to them requesting forms at US
Copyright Office Library of Congress Washington D.C. 20559. I have found it takes ten days to two weeks to receive your forms either way you use. You can also reach the Copyright Office Web Page. When you call to request forms, you need to know which forms to request. First, request "Circular 1 Copyright Basics". This is a very concise and easy to understand primer on copyrights. Read it first before filling out any forms as it answers a lot of questions and helps avoid pitfalls. If you want to register only your lyrics or only instrumental music, request "Circular 50 Copyright Registration for Musical Compositions". If you want to register a song with lyrics and music embodied on a tape or CD (this is was 99% of bands want), request "Circular 56 Copyright for Sound Recordings". Both Circular 50 and Circular 56 come with detailed explanations about registering music and include the appropriate forms. All of these circulars are also available to download at their Web Site.
What bands often do not understand is that when they record a tape, they have two separate copyrights (excluding any cover artwork which will be addressed later). First, they have a copyright in the music and lyrics of the song. If the songs were reduced to sheet music, that would be the first copyright. The second copyright is the copyright in the sound recording. This means that a band also has a copyright in that particular recorded version of the song. If they re-recorded the song, they would not have a new copyright in the underlying song, but they would have a new copyright in the sound recording. When registering a tape or CD, you want to register both the underlying music and lyrics and the sound recording. Circular 56 and specifically Form SR within Circular 56 is what you will want to fill out. Form SR allows you to register both the lyrics and music and the sound recording in one copyright, and perhaps more importantly, with one fee.
Another popular question is whether to register each individual song as a separate copyright or register the tape as a whole. Registering a tape with one copyright registers all the songs on that tape. I usually recommend this route to bands. Let's face it, registering could get expensive at $30 a pop if you register all your songs. The only advantage to registering each individual song is that each song has its own entry in the Copyright Office register. This could be advantageous if someone wanted to find out who owned the copyright to a song but did not know what tape or CD it came from. They could search for the song and find an entry. In practice, there are easier ways of finding out who owns the rights to a song than delving through the millions of copyrights in Washington D.C. For this reason, copyrighting each individual song is usually not the most effective procedure for a band with no recording contract. Later, if a band becomes successful, your record company will probably require you to record each song individually. But for the average garage band, one copyright is all you need.
If you have original artwork for the cover of your tape of CD, you may consider copyrighting that as well. Request "Circular 40 Copyright Registration for Works of the Visual Arts". In this Circular, you will find Form VA which is nearly identical as the forms for registering music. Similarly, the Circular walks you through step by step.
This column has provided the rudiments of copyright registration. Although registration may seem daunting, if you know what to ask for and are willing to invest some time in reading the instructions accompanying the forms, you can copyright your material.
 
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WHAT IS A WORK FOR HIRE?
Work for hire is a special term used in the United States Copyright Act. Normally, when a person or group creates a copyrightable work, whether a song or a computer program or a sculpture, the person or persons creating the work have a copyright in the work. Thus, the creators can exploit the work and receive money for their creative energies.
A work for hire is when a person creates a copyrightable work but does not own it. How can this be? The Copyright Act allows for the copyright to go not to the creator but to the person who hired the creator to make the work. The law treats the creator as if he did not even participate. The employer owns the copyright and it is as if they created the work themselves without any help from the actual creator.
Musicians should be very careful of work for hire contracts. Under a work for hire contract, you have absolutely no right in the music you create. There are legitimate times when work for hire contracts are acceptable. If you write music for commercials, you will undoubtedly have to sign a work for hire contract. The company who makes the product will want the rights to the jingle you create. Another time you may encounter a work for hire contract is in session work. If someone asks you to help them record but not be a full-blown member of the band, they may ask you to sign a work for hire contract. This situation can be a little trickier than the commercial jingle example. If you sign a work for hire contract to play with a band, you will not be entitled to any royalties or even credit for your work other than what the band agrees to pay you. It will be as if you never existed and the band will be deemed the creator of your music.
A work for hire is not the same thing as transferring ownership in a copyrightable work. You may create a song and then sell it to a company for a commercial. This is not the same thing as a work for hire. You have more rights if you create a song yourself then transfer it than if you had a work for hire contract. The Copyright Act allows an author of a song to get it back even after transferring. If you transfer a song to someone, you may serve written notice on the person who holds the copyright between the thirty-fifth and fortieth years after transferring the copyright and get your song back! Thirty-five years may seem like a long time and you may think that songs won't be worth anything in that long, but think of songs like, "White Christmas" or "Memories". Under a work for hire contract, you never get your song back because you never owned it in the eyes of the law.
A work for hire contract is something you should try to avoid. Fortunately, there are specific criteria needed to create a work for hire. A copyrightable work will be considered a work for hire if you are an employee and create the work in the course of your employment. For example, people who create computer programs for IBM are making works for hire. IBM will own the copyright to the final program, not the programmer. If you are not a regular employee, there must be a written contract specifically stating it is a work for hire contract. This is what musicians will run into the most. If you see a contract that has the words "work for hire" in them, your antennas should immediately go up. Be careful with these type of arrangements. You may not have any rights in whatever you create.

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MY BAND JUST RECORDED A DEMO, WHO OWNS THE COPYRIGHT?
This answer to this question is not as simple as you may imagine. First, you have to narrow the question and ask which copyright? When a band records a demo, they have two copyrights. The first copyright is in the words and music of the song. This is the copyright which most people think of when they talk about copyrighting a song. The second copyright is in the recorded version of the song. This is known as the sound recording. So when you record a demo, you have two copyrights: one in the words and music and the other in the sound recording. If you were to re-record a song, the copyright in the words and music would not change (same song, right?), but you would have a new copyright in the new sound recording.
Back to the question of who owns the copyright to the new demo. Let's deal with the copyright to the sound recording first. All the people who contribute to the recording have a claim to the copyright to the sound recording. In reality, however, the person who pays for the studio time usually, through a contract, owns the copyright in the sound recording. If you have a record deal, the record company will pay for the studio time to record the album and the record company will own the copyright to the sound recording. The songwriter will still own the copyright to the words and music, but the record company will own the sound recording. If the band pays for the studio time, then anyone who contributes to the sound recording would own the copyright unless there was a written contract to the contrary. In summary, if a band records a demo, the musicians who play on the demo jointly own the copyright to the sound recording.
Now to who owns the copyright to the words and music. Whoever contributes to the writing of the song has a claim to the copyright. The Copyright Act considers everyone who contributes to a song to be a joint author. It does not matter how much or little you contribute; if you participated in writing the song or recording the song, you are a joint owner of the copyright.
The Copyright Act states that each co-author has an indivisible share to the entire copyright. This means that each person owns the entire copyright. The copyright is not divided into portions according to the contribution of each author. The primary reason behind this is how can you decide who contributed what? Joe did the first verse and
part of the chorus and Sara did the bridge and guitar solo and . . . you get the point. It is impossible to divide a song up in this manner. An analogy lawyers like to use is when you scramble an egg, you can't separate it.
This form of joint ownership can have some interesting consequences. For example, each co-author can do what they want with the copyright as long as he pays the other owners their pro rata share of the proceeds. One band member can license the song to anyone so long as he splits any money he received with the co- owners. Further, one copyright owner cannot stop another from using the song in a particular way if he disapproves. Each author can do as they please. The only exception to this is the work for hire doctrine. A person can write a song and never own the copyright under the work for hire doctrine. Therefore, absent a work for hire contract, all the persons who contribute to writing the song own the entire song equally.
Ownership of the copyright to a song can be very lucrative. It is the songwriters who receive money from publishing. Publishing money comes from licensing your song to others for a fee. It is for this reason that bands should have a partnership agreement which specifies who owns and controls the band's songs.

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WHAT IS COPYRIGHT INFRINGEMENT?
Most bands do not ask me this question like I have phrased it above. Instead, they ask, "what if someone rips off my material"? The answer is, they infringe your copyright. You get a copyright the minute you put your song on tape or write it down on paper. You do not get a copyright by sending your song to the Copyright Office in
Washington D.C.; doing this registers your copyright. I will explain the benefits of registering your copyright shortly, but you do not need to do this to prevent someone from ripping off your songs.
In order to prove that someone infringed your copyright, you must show that you own the copyright. Second, you must prove that the infringer had access to you song. The infringer, on the other hand, will try to show that he did not have access to your song. If your song was a hit across the country and was on the radio a lot, it should be easy
to prove the infringer could have heard it. However, if you pressed 500 copies of your demo and sold it at shows, it may be hard to prove someone 2000 miles away had access to your song. The stronger showing of access, the greater the chance of proving infringement. After you establish access, you must prove that the infringer's song is "substantially similar" to yours. This legal definition is purposely vague because it is up to a judge or jury to determine if the song is substantially similar. If a band copies your entire song, note for note, it should not be hard to convince someone of the substantial
similarity between the two. However, even a copied drum beat can be infringement, if you prove it is substantially similar.
Once you prove access and substantial similarity, the infringer can present defences. First, he can argue that his song is an independent creation. Going back to the copied drum beat, it is conceivable that the infringer thought it up all by himself and it is only a coincidence that your song has the same drum beat. After all, there are only a limited number of drum beats. This would be proof of independent creation. In fact, it is theoretically possible that two people could create the same song with neither knowing of the other's work. Once again, it is not infringement unless you prove they copied your song.
It is important to realize that you do not have to prove that the infringer stole your song on purpose. It can be infringement even if the copying was done subconsciously. The copyright owner has to prove a lot of things, but intent is not one of them.
If you prove someone infringed your copyright, then everyone who commercially exploits the song is also an infringer. Therefore, a record company who puts out the song, even though they had no reason to realize it was infringing your copyright, it is still liable. This re-emphasizes the fact that you do not have to prove someone deliberately infringed your copyright.
Now you have proved ownership, access and substantial similarity and countered all the defences and proved infringement: What do you get? The Copyright Act provides various remedies. First, you are entitled to an injunction, which is a court order forbidding the infringers from distributing any more copies of the infringing work. Second, you are entitled to actual damages. Actual damages are what harm you suffered from the infringement. These damages are usually next to nothing unless you prove that the value of your song has been diminished by the infringer's version. Perhaps the most significant remedy is the award of profits. You are entitled to the profits the infringer made off of your song. If the infringing song made a lot of money, you are entitled to the portion attributable to your creation. This gets complicated and is far beyond the scope of a web page. You get the above remedies whether you register your copyright as soon as it is created or not. So why should you register your copyright immediately? First, you need to register before you can sue for infringement anyway, but there are two other reasons to register your copyright. Registering your copyright gives you two additional which are unavailable to those who do not register. First, you are entitled to attorney's fees. These can be very important because otherwise, you will have to pay your attorney. With the prospect of attorney's fees at end of the case, it will be easier to convince a lawyer to take your case. Finally, you are entitled to statutory damages. Since the damages discussed above can be difficult to prove, the judge can award you statutory damages ranging from $250 to $10,000 and up to $50,000 if the infringement is intentional.

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Michael P. McCready
Attorney at Law