BENEFITS OF COPYRIGHT REGISTRATION AND ENFORCEMENT STRATEGIES
In this article, I provide a glimpse into how copyright law works. In this article, you will learn:
When is your copyright protected?
What benefits do you gain from your copyright protection?
What are the benefits of registering your copyright with the U.S. Copyright Office?
Basics of "Joint Works" and music sampling
Please make a note! Every explanation of law should start with "With some exceptions." There are many exceptions and distinctions that exist, and it is far too burdensome to explain each one. It is important to know the basics so you know when legal consequences exist, but it's also important to hire a lawyer to guide you through the exceptions and distinctions.
When do you obtain copyright protection?
There are many myths surrounding when/how one would obtain copyright protection. Here is the answer: REGISTRATION IS NOT REQUIRED, YOU OBTAIN COPYRIGHT PROTECTION WHEN YOUR COPYRIGHT IS CREATED IN A TANGIBLE FORM.
You gain copyright protection when your work is "fixed in a tangible medium of expression." That is the legal term of art provided by the U.S. Copyright Act. In other words, once the copyrightable material is fixed in some way, you automatically obtain copyright protection.
So compare: You get on stage and fiddle around with your guitar, making a new tasty lick you've never written/recorded before. It's not copyright protected if you aren't recording it because it's not fixed in a tangible form.
However, if you first write the notes to your tasty lick, then get on stage and perform, it became protected when it was written down, because it is a fixed, tangible form.
What do you get from copyright protection?
So when you get "copyright protection" after fixing your copyright in a tangible form, what exactly are you getting? The Copyright Act gives you exclusive (only you have these rights) rights to do the following with your copyright:
1. Reproduction Right – The right to reproduce your work (i.e. creating CD's of your song)
2. Derivative Work Right – The right to make a derivative of your copyright (i.e. a remix version of your song)
3. Distribution Right – The right to distribute your song to the public for sale.
4. Public Performance Right (for certain types of copyright) – The right to perform the work publicly
5. Display Right (for certain types of copyright) – The right to display the work for the public.
6. Digital Transmission Right (only for sound recordings) – The right to transmit your sound recording through digital audio transmission.
Why are these so important? The obvious answer: People can't steal, copy and/or make money off your work without your permission. The not-so-obvious answer: You can sell or issue "licenses" (a limited right) to third parties for these specific uses and MAKE MONEY. A common example is "selling" your song to a record label in exchange for an up front fee (i.e. an advance) and percentage of money from the sale of the song.
What are the benefits of registering your copyright?
The obvious question if your copyright is automatically protected when it is fixed is "then what is the point of registering your copyright?" There are still some major benefits to registering your copyright, including:
Prima Facie Evidence You Own the Copyright – A fancy Latin phrase meaning a court would assume you own the copyright over the other person claiming ownership who did not register. The other person would then have to prove in some other way you don't in fact own the copyright.
Prerequisite to filing a lawsuit in federal court – If you want to make claims against someone who infringed your copyright in federal court, you must register first.
Statutory Damages and Attorney's Fees (if timely registered) – If you succeed in your lawsuit, you have the chance to automatically obtain a set amount of damages (i.e. money) that would otherwise be difficult to recover. You also would recover attorney's fees, which otherwise you would have to pay for yourself.
Keep in mind, copyright registration is done online and is only $35. Without going into detail, there are some scenarios you can register your entire album for $35. It's worth it to gain these above protections.
How to Use These Benefits Prior to a Lawsuit
It is extremely rare to file a lawsuit and see the case through until a verdict determines there was indeed an infringement, and therefore an award of damages and attorneys fees.
How do you use these benefits without waiting until a verdict?
PRACTICAL TIP - The purpose of having these rights, is the ability to assert these rights against an infringer in a cease in desist letter. One may simply ignore your letter if you cannot assert your right to file suit in federal court seeking statutory damages and attorneys fees. However, the threat of losing tens (if not hundreds) of thousands of dollars if a lawsuit is filed may force the infringer to stop the infringement immediately, without the need to file a lawsuit.
Other Important Factors About Copyright
While I won't go into detail into all these other factors, they are extremely important and are a need-to-know for musicians:
Joint Works – If you and another musician intend to contribute to one single work, then you have a "joint work." (please see my other article about agreements that are absolutely necessary for all parties to gain clearance)
Cannot separate – Once joined, the copyrights cannot be separated. It is like mixing the yolk with the egg white, you can't return them back to their separate form. For example, once you contribute music and lyrics into one song, it stays like that forever. You can't decide to take the music you contributed and go use it in another song.
Equal ownership – Without otherwise agreeing in writing, all contributors own the joint work evenly amongst each other regardless of their amount of contribution.
Ownership Rights - All joint authors then have the right to issue non-exclusive licenses without the consent of the other co-owners, so long as they pay the owners in proportion to the amount earned.
Music Sampling – When you take a piece of a sound recording you don't own and use it in your own song, just assume you are infringing if you don't obtain consent. Their a some very limited exceptions to this rule, but the thought that a certain amount of seconds is OK is a MYTH!
Compositions, Sound Recordings and Videos – When you record your song, there are two copyrights that attach: the actual sound recording (i.e. the master) and the underlying written song (i.e. the composition). If you then record a music video using that sound recording, then there are three copyrights that attach: the master, composition and the music video itself.
Covering a Song – Keep this in mind. As you might know, you have the automatic right to record a cover song of an existing song out in the public, but it's limited to song records. If you make a video it's not legal without the consent of the songwriter (however, places like YouTube have procedures in place to obtain permission when uploading the cover song).
About Colin
Colin is the founder of Whiskey Ghost Entertainment Law based in Nashville, TN. Colin has represented independent musicians, record labels and publishers with a wide array of representation including the drafting, review and negotiation of record/publishing deals, distribution and band agreements. He has also assisted in the formation of LLC's, trademark registration and much more. If you have a legal question, please don't hesitate to email Colin at cmaher@whiskeyghost.com or call him at 615-721-2233.
This article does not create an attorney-client relationship between you and me. Your use of this website is intended for general information purposes only and is not legal advice or a substitute for legal counsel. You should not act upon any information contained on this website without seeking professional counsel, licensed to practice in your jurisdiction for a particular problem.
WGE's First Ever Newsletter!!!
Taylor Swift and Your Re-Recording Rights Explained
Halloween screenwriter exercises his termination rights
Structuring Your Agreements When Releasing your NFTs
Copyright Issues Surrounding Your NFTs
NFTs and the Legal Questions They Give Rise To
Britney Spears, Conservatorships and Controlling Your Career
ESSENTIAL AGREEMENTS TO KNOW BEFORE YOU RECORD
What's Needed in a Band Agreement?
Trademark 101 for Artists
Whiskey Ghost Entertainment Law
Colin Maher, Attorney at Law
cmaher@whiskeyghost.com
604 Gallatin Ave., Suite 206
Legal services discussed are provided by Colin Maher, Attorney at Law, as a sole proprietor. he foregoing materials contain abbreviated and generalized information presented purely for educational, promotional and general information purposes only and shall not be deemed either legal advice given by or a solicitation for business by Colin P. Maher, Attorney at Law nor shall it create an attorney-client relationship. The materials should not be relied upon or construed as legal advice and may be out of date. Always secure legal consultation with a qualified attorney. Colin P. Maher, Esq. neither assume nor bear any liability or responsibility for errors or omissions in the contents of these materials.