Copyright: How to Protect Your Work
By Justine Perry (@justine_perry)
There is something we can all agree on. Copyright law - and knowing how to protect your work - gives many musicians a headache! But it’s okay…
I am swooping in (wearing my proverbial cape with an S on the front.) But I can’t take much credit. The wealth of knowledge in this article comes from my two expert guests. I spoke to lawyer and musician Michael McLaughlin (@halfdogmusic), and indie biz coach Don Harrison (@realDCHarrison.)
We can’t cover everything but after reading this article, copyrighting your work and getting royalties will seem manageable (and I can go to bed knowing I’ve made the world a better place for many a confused musician.)
Michael is an experienced attorney. His vast knowledge includes Entertainment Law, recording contracts, and performing contracts.
Don has worked in the music industry for decades, advising musicians on building careers as independent artists.
In the words of Don Harrison, I asked six “crazy good” questions. So let’s get started!
First, I need to get the disclaimers out the way. They’re dull but important.
Michael’s disclaimer: The information contained in this article is provided by the law firm of MICHAEL A. McLAUGHLIN, LLC. The information herein is for general informational purposes only. Nothing contained herein should be taken as legal advice for any individual case or situation. The information contained herein is not intended to and does not create an attorney-client relationship. Your receipt of and/or viewing of this information does not constitute and does not create an attorney-client relationship. You should not take action based on this information without first consulting with a qualified attorney licensed to practice law in your jurisdiction.
Don’s disclaimer: I am not a lawyer. My answers stem from research and from decades of working within the music business. Nothing I've written should be considered "legal advice".
This article is for songwriters who write for other people, as well as musicians performing their own work. Let’s begin!
Question One: What is the best way to register your copyright?
Michael: The best way to register your copyright (in the US) is with the US Copyright Office, and the best way to do so is to go online and register the work electronically. It's cheaper and quicker than doing it via paper forms. If you do it online, the cost is $55.00 (that's $55.00 for a single work or for a collection, if every work in the collection is owned by the same copyright claimant.)
(My Good Self: This fee was accurate at the time of our interview. Michael even called the Copyright Office to check! However, this was in 2017 and the fee can change.)
Michael: You can access the US Copyright Office's website at www.copyright.gov. The site is user-friendly, and has tutorials on how to register your work. Published collections of musical works and all the copyrightable elements of a unit of publication can be submitted for registration on one application with a single fee if all the compositions are owned by the same copyright claimant. Online registration is the preferred way to register basic claims for literary works; visual arts works; performing arts works (musical works are registered as works of the performing arts), including motion pictures, sound recordings, and single serials. Advantages of online filing include: a lower filing fee, fastest processing time, online status tracking, secure payment by credit or debit card, electronic check, or Copyright Office deposit account, and the ability to upload certain categories of deposits directly as electronic files (although for sound recordings I believe you still need to send physical copies.)
Incidentally, when the Copyright Office issues a registration certificate, it assigns as the effective date of registration the date it received all required elements — an application, a non-refundable filing fee, and a non-returnable deposit — in acceptable form, regardless of how long it took to process the application and mail the certificate. You do not have to receive your certificate before you publish or produce your work, nor do you need permission from the Copyright Office to place a copyright notice on your work. However, the Copyright Office must have acted on your application before you can file a suit for copyright infringement, and certain remedies, such as statutory damages and attorney’s fees, are available only for acts of infringement that occurred after the effective date of registration. If a published work was infringed before the effective date of registration, those remedies may also be available if the effective date of registration is no later than 90 days after the first publication of the work.
Don: Register directly online via the Electronic Copyright Office (eCO Registration System.)
Login/Register for your free account
2. Complete the application
3. Make your payment
4. Send copies of your work to be registered (upload digital copies or mail in physical copies)
Note: The system will prompt you to upload digital copies after payment. You can also print out labels for physical shipment, if necessary.
Bonus Note: Filing online saves you a bunch of money vs paper filing!
That's it! The process is pretty straightforward, but downloadable PDF tutorials are available if needed.
(My Good Self: Are you based in the UK? Register with the UK Copyright Service here: www.copyrightservice.co.uk)
Question Two: How does this work? If someone else registers the same piece of music, how would it be determined whom the copyright belongs to? Is it as simple as the person who registered the work first owns the copyright?
Don: Now, this would be one for the entertainment lawyers! But yeah, I believe whoever has their registration processed first, wins. The second person can contest the registration. But the first person now has the benefit of 'prima facie' evidence in a court of law. This means that the second person faces the full burden of trying to prove ownership. I have never experienced this problem, and I can't imagine it happening. Having a Band Partnership Agreement and/or Songwriting Agreement is always a great idea! That could (and should) prevent something like this from happening. Family members and/or lifelong friends should not be exempt. Some of the nastiest music business disputes in history involved siblings and/or best friends.
Michael: There are certain things that really can't be copyrighted. Generally speaking, a song's title cannot be copyrighted. The copyright applies to the entire work, and quite frankly, two songs with the same name could be entirely different. However, if what you're asking about is the exact same song, all I can say is: That's why I tell my clients to spend the $$$ and get the copyright! At the end of the day, if it's the exact same song, and two parties tried to register the work, I believe whoever applied first would have an advantage. On the other hand, it is possible for two people to "own" the copyright for the same song (for example, Lennon/McCartney.) In such a case, at the time of registration, both owners are listed on the application, and both are owners of the copyright (things like how much of the copyright is owned by each should be worked out separately and ahead of time, and should be spelled out in a written agreement!)
I suspect, however, that you may be more interested in cases where the song was co-written, one author of the lyrics, and one composer of the music. Again, not so easy to answer. The author of each has the right to separately copyright their contribution (a lyric writer can copyright her written lyrics, and musical composer can copyright his musical composition - in which case, you would be licensing your lyrics for use by the composer.) However, if the lyrics are part of the song, you'd want writing credit for your contribution. The best case scenario is to have a written agreement that defines each author's contribution and share of any proceeds. I cannot adequately stress the importance of having a written agreement for every step of the process. A big reason for such written agreements is that the agreements create a paper trail that you may rely on in the future. So, if you're in a co-writing situation, write out the agreement now. An ounce of prevention is worth a pound of cure!
Question Three: What’s the best way to collect any royalties due to you?
Don: Register your song(s) with The US Copyright Office. (Yes, they collect & distribute certain royalties.)
Register all versions of your song(s) with a Performing Rights Organization (PRO). Such agencies as ASCAP or BMI (USA) and SOCAN (Canada) collect 'Performance Royalties'. These royalties are earned when your song is played on radio stations, TV stations, in department stores, bars, live venues, even on YOUTUBE!
Sign up for a Music Publishing Administration service. Look into CD Baby Pro, Tunecore Songwriter Sevices or SongTrust. Publishing Admin takes the headache out of collecting worldwide royalties. There is a small commission for using these services, usually 10-15%. It is well worth having experienced pros with established connections acting on your behalf. You also keep 100% ownership of your songs!
Note: If you have not registered with a PRO, these services will do so on your behalf. They will register you with ASCAP or BMI (your choice.) There is no need to register with the Harry Fox Agency (HFA) either. Publishing admin services collect 'Mechanical Royalties'. These are royalties earned when a song is streamed, downloaded or purchased via CD/Vinyl. YouTube Composition Royalties are also collected.
Register with SoundExchange to collect digital royalties. These are royalties earned when your song is played on Pandora, SiriusXM and Internet Radio Stations. SoundExchange has agreements in place with 20 foreign collections agencies.
If you have performed on a covered sound recording or motion picture/television program, you should check with The AFM & SAG-AFTRA Intellectual Property Rights Distribution Fund.
Michael: Musical Composition Copyright: A musical composition is a piece of music, in part or in whole. The authors are typically the composer (writer of music) and the lyricist (writer of text, in case of lyrics.) These authors are the owners of the musical composition copyright. Typically in equal share, as both the composer and lyricist of a track get assigned 50% of the composition’s copyright, unless they agreed on a different split. This can be done when one party contributed more than the other.
The creators have the exclusive right to determine who can produce copies of their song, for example, to create records. This right can be granted to others by giving out a mechanical license, which is done in exchange for a monetary payment (mechanical royalties.)
Whenever a record label or performing artist wants to record a song that they do not own, they have to get a mechanical license from the people that do. Always.
All decisions regarding the composition can only be made when agreed upon by all copyright owners. As mentioned before, the ownership and control of copyright can be transferred to others. Generally, songwriters get a specialized third party, namely a publisher, to control and manage their songs. In exchange, they get a cut of the royalty streams, which they help generate with the repertoire. Writer-publisher splits tend to range between 50%-50% and 70%-30%, depending on the clout of the artist and sometimes even on the relevant country’s regulations. Unless you have the wherewithal to go out and actively police and collect your royalties, the best avenue is to hook up with a publishing entity and let them do it for you.
Sound Recording Copyright: A sound recording is the actual final recording of a song, a fixation of sound. It often goes by the name of ‘master’ from the old ‘master tape’ expression. The authors are the performing artist and record producer, who in essence are therefore the owners. Producers typically get a small share of the master rights (up to 12.5%). However, recordings are typically made in assignment of record labels, whom have negotiated deals with both the artist and producer in which they transfer ownership of their copyright to the label in exchange for royalty payments.
(My Good Self: The main PRO in the UK is PRS.)
Question Four: If you have written a song and/or lyrics for another artist or for use in media, how should you go about getting your royalties, especially if you do not know what the buyer did with your song/lyric after they licensed your work?
Don: As the songwriter/publisher/performer you should follow the same steps above for collecting royalties. If it is a "Work for Hire" in which you were commissioned to specifically write the song, it's a bit different.
In a work made for hire, the songwriter signs over all rights to the song for a set fee. He/she has no rights to payments beyond what was set in the initial contract. The buyer becomes the owner of the song and the songwriter may or may not receive credit.
What the buyer does with your work (provided it is not "work for hire"), should be lined out in the contract. It should state exactly what the buyer can and cannot do with it. Be sure to include a communication clause...
Michael: In order to answer this question, I would need to know the terms of the licensing agreement. There should be language in the agreement that states how you would be notified regarding use of your work, and also language regarding accounting. Also, there is a big difference in how the work was used. If it was used by an artist on a sound recording, the work would be subject to mechanical royalties, and your PRO should be able to collect for you, provided the work is registered with the PRO. However, use in media is a whole different ball of wax, as there are no mechanical rates for use in media such as videos, movies, commercials, TV, etc. Generally speaking, for such use, the rates must be negotiated on a case by case basis.
That being said, I have to go back to my rant on having written agreements, all these terms should be spelled out in the written agreements regarding the work, and there are as many ways to write such agreements as there are to skin a cat!
Question Five: In a Twitter chat, I came under fire for suggesting songwriters mail themselves their work in an un-openable envelope. (I still maintain this is better than nothing if you can’t afford to have your work copyrighted via other means.) Why are you against this measure and what’s the most cost-effective alternative?
Michael: There is no provision in the US Copyright Law regarding any such type of protection for the "poor man's copyright", and it is not a substitute for registration. In addition, unless your work is registered, you cannot bring a suit in US Federal Court to enforce/protect your copyright (and in copyright cases, you really do want to be in Federal Court.) Also, registered works may be eligible for statutory damages and attorney's fees in successful litigation. Finally, if registration occurs within five years of publication, it is considered prima facie evidence in a court of law, which is quite important in terms of litigation. Prima facie evidence means there is a presumption that you are the owner of the work and the copyright. If it came down to litigation, the burden of proof would be on the person whose claim is NOT registered (or registered later than your registration) to prove that you infringed on their work. If someone were to steal your work, and you did not have the work registered, the burden would be on you to somehow prove that the other party hijacked your work, which is not always so easy to do. This may seem like a subtle difference, but in terms of litigation, it really does make a big difference.
It never ceases to amaze me how artists balk at paying for copyright protection! I tell clients all the time: if it's worth anything to you, it's worth protecting - besides: if it's not worth getting a copyright, it's probably not worth stealing!
Don: This myth is referred to as the "Poor Man's Copyright" and it holds no legal bearing in the United States. There is no provision in the copyright law of any such type of protection. No documented cases exist of successful defense in a court of law!
Please do not consider this a substitute for registration. There is no substitute to registering your work with the Copyright Office! While copyright registration is not required, it gives you a public record of legal ownership.
Question Six: How long does copyright last?
Michael: The term of copyright for a particular work depends on several factors, including whether it has been published, and, if so, the date of first publication, but as a general rule, in the US, copyright protection lasts for the life of the author plus an additional 70 years for works created after January 1st, 1978.
Don: Copyright protection lasts for the life of the author +70 years for works created after January 1st, 1978. Anonymous works, pseudonymous works, or a work made for hire is different. 95yrs from 1st publication year or 120yrs from the creation year, whichever expires first.
Here's a MASSIVE thank you to Don and Michael for your time and insights. Please share this article with your musically-inclined friends. Copyright can be conquered! Please subscribe to my blog to be sent future (and exclusive) articles.
To finish, here is some more info on my guests. This is why they rock…
Don “Wicked D” Harrison is a freelance do-gooder for the Career Indie Musician. “Take the Oath: A Practical Pocket Guide for the Indie Musician” is available now for Kindle, Nook and PDF. Follow @realDCHarrison on Twitter.
Michael McLaughlin is an attorney and musician. Learn more about his legal work here: www.michaelmclaw.com. To check out his ‘sharp-edged, home-grown, heartrendingly authentic roadhouse blues’, head to www.halfdogblues.com. Follow @halfdogmusic on Twitter.
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