Getting Started in the Music Business - Copyrights

Understanding Copyrights

What are copyrights?

Copyrights are protection under the federal Copyright Act for "original works of authorship," such as literary, musical, graphic and technical creations that are "fixed in a tangible medium of expression." Copyright Law recognizes that your creative work is your personal property, and like other kinds of property, musical works are protected against theft and unauthorized use.

There are two types of copyrights for musical works. The first right is in the underlying composition of the song, such as would appear on sheet music. The second copyright is in the actual version of the song that is recorded on tape. If your song is "covered" by another group, you can still own the rights to the song itself and your recorded version(s), while the cover group can register a copyright for their recording of your song.

When you own the copyright to a song, you get the exclusive right to use the song in specific ways and to license others to use it. These "exclusive rights," as provided by the Copyright Act, include the right to:

• Reproduce copies of the songs in tapes, CDs, and other audio recordings
• Sell and distribute copies of the songs
• Publicly perform the songs- as in live performances, radio broadcasts, jukeboxes and digital audio transmissions
• Create "derivative works," or adaptations, based on a copyrighted song, such as sampling the song or writing a parody on the lyrics.

How long do copyrights last?

For any work created since 1978, the duration of a copyright is the life of the author plus 70 years. For co-authored songs, the copyright lasts until 70 years after the death of the last surviving author. When the copyright period ends, the songs enters the "public domain," which means anyone may use the song for free.

If our band co-wrote all the songs, who owns the copyrights?

When two or more people co-write a song, they are "joint owners" of a "joint work." Unless you agree otherwise, each joint owner is an owner of the entire copyright in the song. All joint owners have full claim to the "exclusive rights" that come with the copyright, as listed in What are copyrights?.  so long as they share any proceeds with the other owners. For instance, one joint owner can record his own version of the song and sell it without asking the other owner's permission, as long as he splits the royalties with the other joint owner.

How can I obtain copyright protection for my songs?

You do not have to register a copyright with the Library of Congress to acquire copyright protection for your song. Once an author fixes his music in some physical form, a copyright is created instantly so that the songs are legally protected. For example, when you put your songs on tape for the first time, you acquire copyright protection in both the songs and in that recorded performance of the songs. Similarly, when you write the songs down on paper, you acquire copyrights in the compositions.

If someone tries to copy one of your songs, however, a tape alone won't prove your copyright ownership. One cheap way to protect your copyright is to mail yourself a copy of the tape, including a lyric sheet, and do not open it. The sealed, dated package is proof of your authorship and the date when you created the work. This method is called the "poor man's copyright", and it provides some evidence of your ownership, but no legal guarantee. Use this method only in the time between the creation of the work and mailing your application to the Library of Congress.

Registering your copyright with the Library of Congress is a legal formality, but it is the only way to ensure the reliability of your copyright. The registered copyright establishes a public record of your ownership, which is conclusive evidence in court if anyone ever infringes your copyright. You cannot file an infringement lawsuit until you have registered your copyrights, so do it early on. Also, if you register your copyrights within three months of the time that you first publish your songs, you will be eligible for further legal advantages in the event of a lawsuit, including reimbursement of your attorney's fees and special damages.

How do you register a copyright?

The Library of Congress handles all copyright applications through the Copyright Office. The office operates a 24-hour answering machine on which you may request the appropriate forms at (202) 707-9100; or, download the forms from the Copyright Office web site at http://www.copyright.gov/forms/. The forms for song registration are Form PA (Performing Arts) and Form SR (Sound Recording).

Form PA is used to register a copyright in the underlying musical composition, rather than a specific recording of that music. Songwriters and composers who are interested in licensing their compositions for other people to record use Form PA. Form SR is used to register a copyright in a sound performance of a particular composition. Most bands will want to register their copyrights in both the compositions and the recordings. If the song is an original and the same person(s) will own the copyrights to both the recording and the underlying composition, you may register your authorship of both copyrights in one filing with Form SR.

This stuff gets complicated, but the Copyright Office publishes several excellent informational circulars to help you maneuver through the registration process. Before you submit an application, order copies of the circulars or download them from the web site. These circulars will answer most of your initial questions concerning which forms to use and how to use them:

• Circular 1, "Copyright Basics"
• Circular 56, "Copyright Registration for Sound Recordings"
• Circular 50, "Copyright Registration for Musical Compositions"
• Circular 56a, "Copyright Registration of Musical Compositions and Sound Recordings"

When you submit your registration forms, you must include the proper form, the filing fee (which is currently $30 per song; increasing to $45 July 1, 2006), and a non-returnable "deposit", or copy of the work, such as sheet music or a cassette, and a lyric sheet.

Should we register every song or the whole tape?

You can save the multiple filing fees by submitting a whole tape of unpublished songs together for registration as a "collection" with Form PA. With this method, each song is protected as a part of the collection. However, you may only do this if the same person or people authored every song in the "collection" so the copyright ownership is clear. This works fine if one person wrote the music and another wrote the lyrics to each song, or one person wrote the whole group of songs. However, you may not register the songs together if one band member wrote three songs on the tape, and another person wrote three songs, because the copyright claimants would be inconsistent.

When you register a collection, it gets catalogued under one name rather than listing the individual songs. There is nothing wrong with this, but if anyone ever searches for the copyright to one of the songs on the collection, they will need to know the name of the collection. You make money when people use your music, so you don't want to make it too hard for them. When you fill in the name for the collection, keep it simple and recognizable, such as "John  Doe Collection #1".

Do we need to use a copyright symbol on our tapes?

Anyone claiming copyright to a work may use the copyright symbols, whether or not you register that copyright. In music, the © symbol is used for the copyrights in the songs, while (p) is used for the sound recording copyrights (to prevent unauthorized dubbing.) The symbols are not required, but use them to let the public know that the material belongs to you and is protected by your copyright. You can put the symbols on the label or the outer packaging, and they may be printed or handwritten.

Many bands will use both symbols to reflect that they are claiming rights to the original compositions and all of the recordings on a record. The notice must include the symbol(s), the year of publication and the name of the copyright owner. Here is an example:

©and (p) 2007 Dark Emissary Records.

What is copyright infringement?

Whenever someone exercises one of the exclusive rights in a song without a license from the copyright owner, he or she has committed copyright infringement. The infringement can be a complete rip-off of another artists' song or it could be a more minor incident of misuse, such as sampling part of a bass track without permission. Bootlegged tapes are an example of copyright infringement because only the copyright owner can make copies of a copyrighted work. If a bootlegger sells his dubbed copies, he has also infringed on the exclusive right of distribution. In any case, the costs for infringement are high- including statutory fines, court-ordered judgments and attorneys' fees. You can avoid committing infringement by making sure that you have the proper licensing to cover or sample any song before you use it.

If you think someone has infringed on one of your songs, you can sue for copyright infringement if you have registered your copyright, or as soon as you do so. To win a claim of copyright infringement, you must prove that the alleged copier could reasonably have had access to your material before he made his own song, and that the two pieces of work are "substantially similar" enough that the average listener would suspect copying. The infringing party will then try to prove that he created the song independently, and/or that the similarity is either a coincidence or too inconsequential to matter. You do not have to prove that the alleged infringer intended to copy your song. Anyone can claim that he did not mean to copy another person's work, so the law holds a plagiarizer responsible for infringement even if he didn't copy the song on purpose.

A classic example of such a case is the lawsuit against ex-Beatle George Harrison by the copyright owner of the old Chiffons hit, "He's So Fine." Harrison and Billy Preston were jamming backstage in the 70's when they created the song, "My Sweet Lord." They claimed that they did not mean to copy the tune of "He's So Fine;" they just hummed the riff and improvised on it without realizing that it resembled another song. Both parties agreed that the two melodies were substantially similar, and Harrison could reasonably have had access to the Chiffons hit in 1963, when it was #1 in England. Harrison's argument that he didn't do it on purpose did not carry any legal weight, so he had to pay a large chunk of his royalties from "My Sweet Lord" (which were in the millions of dollars) to the copyright owners of "He's So Fine."

How can I get permission to "cover" a song?

To "cover" a song, you must obtain a "mechanical license" from the copyright owner. A mechanical license is a clearance to reproduce and distribute copies of the song, which are among the exclusive rights that come with copyright ownership. You may contact the copyright owner directly and negotiate a mechanical license. Even without the permission of the copyright owner, you can obtain a "compulsory mechanical license" under the Copyright Act.

The copyright law provides that every copyright owner has the right to "first use" of his song; after that, anyone may obtain a license to use the song. "First use" is satisfied when the song is first recorded, copied and distributed to the public. This way, the copyright owner gets the chance to release the first public version of his song. After that, the copyright owner must issue a license to anyone who wants to use the song, either directly or through a "compulsory license." The person using the song pays a set fee to the copyright owner. The mechanical royalty rate is set by the Compulsory License Provision found in Section 115 of the U.S. Copyright Act; for the period January 1, 2004 to December 31, 2005 the statutory mechanical rate is 9.10 Cents for songs 5 minutes or less, or 1.75 Cents per minute or fraction thereof per unit sold - whichever is greater.

Because the compulsory license procedure is complicated, copyright owners generally issue the licenses directly to the users and let the Harry Fox Agency in New York  negotiate the fees and collect the money. The statute is still important because the statutory royalty rate sets the industry standard.

Do I need a license to sample a track?

Yes, you must obtain a "clearance," or copyright license, for every sample that you use in your recordings. Unlike musical compositions, there is no compulsory license that lets you use any recorded performance. You must get a license from the copyright owner directly and negotiate a fee. Also, because both the composition and the sound recording are used in a sample track, you must obtain two clearances: one from the owner of the copyright in the song, and one from the owner of the rights to the sound recording. This may or may not be the same person or company.

The clearance protects you from copyright infringement and from being hit with a lawsuit from your record label. Record contacts have standard "warranty clauses" where you promise to produce material that does not infringe any copyrights. This is because the record company makes copies and distributes them for sale, which are exclusive rights belonging to the copyright owner. When the company sells your records with unauthorized material, it is infringing on the author's copyrights and will probably get sued. The company will then turn around and sue you for breaching your warranty clause.

Clear your use of any sample before you spend a lot of money on recording so that you don't spend studio time on a song that you cannot sell. Follow the instructions listed in here in " How do I obtain a license to use copyrighted music?" to find the copyright owners and get a clearance, or contact one of the agencies that specialize in music licensing and clearances, called "clearance houses." The sampling fees vary, depending on how much of a song you want to use and how important the song or performer is, so a professional may be able to negotiate a better fee for you. 

Bug Music
1776 Broadway Suite 1708
New York, NY 10019
(212) 765-2172
http://www.bugmusic.com
Copyright Management Inc.
1102 17 th  Avenue South, Suite 400 Nashville, TN 37212
(615) 327-1517

Suzy Vaughan Associate
6848 Firmament Avenue
Van Nuys, CA 91406
(818) 988-5599

Can I really use eight notes from a song without a license?

Probably not. Many musicians believe that they may sample 4, 5 or 8 notes or bars of music without infringing any copyrights, but this is a myth. This common belief is due to the "fair use" doctrine of copyright law, but the doctrine is too complicated to break down to a specific number of notes. "Fair use" allows copyrighted material to be used in situations where a minimum of the material is used in a reasonable way that is not harmful to the owner's rights. For example, a journalist may quote an excerpt of your copyrighted lyrics in a printed review of your record without infringing your copyright.

The legal test of "fair use" is beyond the scope of this discussion, but bear in mind that just four notes from a sound recording can be substantial enough to raise questions of infringement. Consider the theme from "Jaws," where four notes are widely recognized as the theme to a classic movie. Sampling those particular four notes may seem like a stronger case for infringement than lifting four notes from the bass track of some obscure funk tune, but either situation could result in a copyright infringement suit. The only way to be sure that you are not infringing any copyrights is to get the proper clearances before you use any samples for commercial purposes.

How do I obtain a license to use copyrighted music?

1. Determine as much as possible the exact song title, songwriter, music publisher, and performing rights organization for each song you are interested in using. Most CD booklets or cassette j-cards include some—if not all—of this information. Get as much of this information for each song prior to calling BMI or ASCAP.

2. Contact the appropriate performing rights organization to get the name, address and phone number of the publisher who controls the copyright to the music you are interested in using.

Index Clearance Section - ASCAP1 Lincoln Plaza, New York, NY 10023
(212) 621-6160

Research and Information Department - BMI320 West 57th Street, New York, NY 10019
(212) 586-2000; fax (212) 956-2059

3. Contact the publisher to obtain permission. Get the name of the person you talk with. Tell them you seek to obtain a mechanical license for a song or songs they control. Follow-up with a letter, and make sure you receive written permission before proceeding.

4. In addition to gaining the permission of the publisher, you must also receive permission from the record label on which the song was released (and occasionally the artist who recorded the song) if you are using a commercially released recording of a particular song. The Texas Music Office has several reference books that list contact information of artist management companies and record labels. Please contact us for additional information.

5. If you are recording songs for commercial release, you are required to obtain a mechanical license from the publisher. (If you are using a song for a film, television show or commercial advertisement, you are required to obtain a synchronization license from the publisher.) The mechanical royalty rate is set by the Compulsory License Provision found in Section 115 of the U.S. Copyright Act; for the period January 1, 2004 to December 31, 2005 the statutory mechanical rate is 8.50 Cents for songs 5 minutes or less, or 1.65 Cents per minute or fraction thereof per unit sold - whichever is greater (after January 1, 2006, the rates will be 9.1 Cents and 1.75 Cents respectively). The Harry Fox Agency, a subsidiary of the National Music Publishers Association, is available to grant mechanical licenses for its almost 28,000 publisher clients. For more information, contact:

Harry Fox Agency711 Third Avenue, Eighth Floor, New York, NY 10017
(212) 834-0100; fax (212) 953-2384

See ASCAP's Music, Money, Success and the Movies for legal info on music in films.

How do I research who owns a copyright?

1. The Copyright Reference and Bibliography Section at the Library of Congress Copyright Office can research the copyright status of a song. The more detailed information you can furnish with your request, the less expensive the search will be. Please provide as much of the following information as possible:

• The title of the work, with any possible variants
• The names of the authors, including possible pseudonyms
• The name of the probable copyright owner, which may be the publisher or producer
• The approximate year when the work was published or registered
• The type of work involved (musical composition, sound recording, photograph, etc.)
• For a work originally published as a part of a periodical or collection, the title of that publication and any other information, such as the volume or issue number, to help identify it
• The registration number or any other copyright data

Motion pictures are often based on other works such as books or serialized contributions to periodicals or other composite works. If you desire a search for an underlying work or for music from a motion picture, you must specifically request such a search. You must also identify the underlying works and music and furnish the specific titles, authors, and approximate dates of these works.

2. Files are subdivided by "year period". Records begin in the year 1790. The card catalog filing system began in 1870. Recent year periods for songs include 1955-1970, 1971-1977, and 1978-1993.

The Copyright Office published the Catalog of Copyright Entries (CCE) in printed format from 1891 through 1978. From 1979 through 1982, the CCE was issued in microfiche format. The catalog was divided into parts according to the classes of works registered. Each CCE segment covered all registrations made during a particular period of time. Renewal registrations made from 1979 through 1982 are found in Section 8 of the catalog. Renewals prior to that time were generally listed at the end of the volume containing the class of work to which they pertained. A number of libraries throughout the United States maintain copies of the Catalog, and this may provide a good starting point if you wish to make a search yourself.

There are some cases, however, in which a search of the Catalog alone will not be sufficient to provide the needed information. Because the Catalog does not include entries for assignments or other recorded documents, it cannot be used for searches involving the ownership of rights. The Catalog entry contains the essential facts concerning a registration, but it is not a verbatim transcript.

3. Upon request, the Copyright Office staff will search its records at the statutory rate of $80 for each hour or fraction of an hour consumed. Based on the information you furnish, they will provide an estimate of the total search fee. If you decide to have the Office staff conduct the search, you should send the estimated amount with your request. The Office will then proceed with the search and send you a typewritten report or, if you prefer, an oral re-port by telephone. If you request an oral report, please provide a telephone number where you can be reached from 8:30 a.m. to 5 p.m., eastern time.

The search fee does not include the cost of additional certificates, photocopies of deposits, or copies of other Office records. For information concerning these services, request Circular 6, "Obtaining Access to and Copies of Copyright Office Records and Deposits.

Your request and any other correspondence should be addressed to:

Library of Congress Copyright Office, LM-451
101 Independence Avenue, S.E.
Washington, D.C. 20559-6000
Tel: (202) 707-6850 Fax: (202) 707-6859
http://www.loc.gov/copyright

If you wish to do your own searching in the Copyright Office files open to the public, you will be given assistance in locating the records you need and in learning procedures for searching. In addition, the following files dating from 1978 forward are now available over the Internet: COHM, which includes all material except serials and documents; COHD, which includes documents; and COHS, which includes serials. The Internet site addresses for the Copyright Office files is http://www.loc.gov/copyright

 

Disclaimer: I do not intend for this information to provide or replace professional legal advice in any way. This material is only intended to provide a short-answer reference guide to the basic legal and business practices associated with the music industry. In your own interest, you may want to consult with an attorney before entering any contractual agreement.