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COPYRIGHT: "Why You Can't 'Copyright' Your Song If You Have Already Written It!"
By Leon Bass
So, you have written a song or recorded an album.
Should you be worried about copyright infringement?
Should you send a copy to yourself so that you can prove that you wrote the song?
Or should you “copyright” your song or album?
In my practice I get these questions quite often. When asked by a client if they should copyright their song, my direct response is, “you already have”. The reason for this is that, technically, a copyright comes into existence the moment the work is “fixed” into any tangible medium. A “tangible medium” can be paper, a tape, or a digital file, among other things. Therefore, if you have written the song out in notation, you own the copyright (assuming you didn’t steal the work because copyrights have to also be original—we’ll get into that some other time). Likewise, if you recorded the song, you own the copyright to the song as well (note that you may also own the recording or the “sound copyright”, which is a distinct copyright from the song copyright—we’ll also get into this another time). With this basic understanding, lets dive into some further copyright basics:
As a songwriter, you have the right to own the copyrights in your original works. Your copyrights are considered property, just like a car or stereo. This right comes from the U.S. Constitution in Article 8 and Congress has expanded these rights in Title 17 of the U.S. code.
Each of us has a distinctive understanding of property rights. Even children realize that the essence of “owning” something is the right to exclude all others from its use or possession. This concept is easily understood when speaking of tangible property, items we can literally touch or hold like a telephone or a baseball. The person who purchases a new Porsche owns that vehicle, he has legal right to exclude everybody else from driving, washing or otherwise using that car. This concept of ownership applies as well to intangible property, like a musical tune or a poem (otherwise known as “intellectual property”). The author of a poem is not necessarily interested in excluding all others from using the paper on which his poem is written, he wants to protect the expression of the poem. Copyright law is how the creative expression of the poem is protected from theft (another person claiming to be the work’s author or stealing profits derived from the work) or from a use to which its owner disagrees (for example, do you want your song in a T.V. commercial for a feminine hygiene product or a politically tainted message with which you disagree?).
Copyright law does not protect ideas, it protects the expression of an idea. Protection given to copyrighted material goes beyond the exclusive right of the copyright holder to make copies of the work. Copyright law also mandates that the copyright holder is the only individual who may create another work based upon the copyrighted work (known as “derivative works”), distribute copies of the work, display the work publicly, or perform the work (or a sound recording of it) publicly (e.g. play your song on the radio or perform it in a club).
While copyright is often associated with the protection of music or movies, it can be obtained for any work deemed to be creative expression, including literary works, dramatic musical works (plays, musicals, etc.), dance choreography, graphic designs, sculptures, and architectural works.
Now, back to “copyrighting your work”. As discussed earlier, registration of a copyright is not required to obtain a copyright or to protect creative expression. The moment that an author “fixes” his work in a tangible form, the work is protected under law. For example, a musician comes up with a catchy tune while playing her guitar. She works on it a while and gets it to the point where she is ready to write it out in notation or tablature, or, better yet, record the tune on a blank tape. The moment that she does anything to fix that song into some form where it can in, some manner, render the expression of the author to the world, the work is fixed and protected. However, if she writes the song in her head while walking down the street, or plays the tune in her garage a few times and doesn’t fix it in some tangible form (e.g. audio tape or video tape) or some other medium (CD-r, MP3 or digital hard disc recorder) or on paper (in notation, tablature, etc) – it is not protected.
Another case where the creator of a creative work, such as a musician, cannot lay claim to ownership of a work (and therefore copyright) is when that work was created in a “work for hire” situation. If Stephen Spielberg commissions John Williams to write a musical score for Spielberg’s new film with the understanding that the work is for the film, Spielberg will be considered the author of the work and thus its rightful copyright holder. Another example of the “work for hire” scenario is the reporter employed by the newspaper. While the reporter is the originator of the articles he writes, the employing newspaper is considered the author of the articles for purposes of copyright because the articles were written within the scope of the reporter’s employment.
While registration is not required to get a copyright, there are several benefits to doing so. Registration creates a public record showing that the author is indeed the author. If the occasion should arise where the copyright holder discovers that one of his exclusive rights has been infringed, he must register the work before he may file an infringement lawsuit. Also, if registered before or quickly after publication, the copyright holder’s suit will stand to prosper better in both showing that the copyright holder is the author of the work and in receiving more money by way of damages and recovering attorney’s fees.
The registration process is relatively painless. In my opinion, you don’t need a lawyer to help you with this, unless there are unique issues with your copyright. (I usually refuse to take money from my clients to do this for them because they can do it themselves).
The applicant need only ensure that all three required elements of the application packet are sent together to the Copyright Office in Washington, D.C. The elements include: (1) a properly completed application form, (2) a nonrefundable filing fee (currently $30.00), and (3) a nonrefundable deposit of the actual work (e.g. a tape recording of the work). If you are registering a song copyright, use the “PA” form. If you are registering a sound copyright (such as a CD) use the “SR” form. You can obtain these forms at http://www.loc.gov/copyright/forms/. Note that you can save money by registering many of your song copyrights (say you wrote all the songs on one CD or recorded all of your songs on one tape) at one time in the form of a compilation. Also note that, if you are registering the song copyright as opposed to the sound recording, you don’t need a perfect recording of tracks laid down in a top studio, complete with and mixing and mastering. All you need is an old boom box with a mixing mic to get the job done (of course if you already have a studio version, use that one!).
SO HOW LONG
DOES MY COPYRIGHT LAST?
The life of a copyright depends on when the work was created and published. However, for simplicity’s sake, a work originally created or published after January 1, 1978 is protected from the moment the work was created, lasting through the author’s life plus seventy years after the author’s death. Any of the exclusive rights in a copyright may be transferred as long as the act is documented in a written contract and signed by the author or the author’s agent. These rights may also be passed on by a will.
WHAT IS THAT “©” THING AND DO I NEED ONE?
Providing a notice of copyright, the well-known symbol ©, is no longer required by law, but, nonetheless, is still a wise practice. The symbol notifies a would-be infringer (thief) that the work is protected and gives other useful information such as the copyright holder’s name and the year the work was published. It also gives you better rights when trying to sue an infringer (thief). To use the “©” symbol properly, follow it by the year of fixation and the author’s name. On MS Word if you use a (C) it should automatically become the “©” symbol. You can also find it under “Insert” and then “symbol” on the file menu. If that doesn’t work, you are also allowed to simply write the word “Copyright” instead of using the “©” symbol. You may also want to add “All Rights Reserved”. This phrase has no legal meaning in the United States, but it does in other countries. See below for an example of how to use a copyright notice.
Leon Bass is an attorney in the Central Ohio area who practices entertainment law. This article could not been written without the generous assistance of Jason Hayward, a former law student at The Ohio State University College of Law and a former law clerk in Lee’s office.
Of course, as an attorney I have to have a disclaimer: DON’T RELY SOLELY
ON MY ADVICE IN THIS COLUMN! LawNOTES is only intended to be a
general overview of some legal issues and cannot possibly be complete in
the amount of space we are dealing with. It is NOT intended to replace
the advice of a competent attorney. Therefore, please consult an
attorney to discuss your rights, and always, please use sound judgment
when making your own decisions, with or without the assistance of an
Leon David Bass
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Intellectual Property - Copyright & Trademark
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