Types of copyrights that a musician should consider

What is copyright?

Copyright law is designed to protect the creator of works such as songs, recorded music, writing, drawings, paintings, sculptures, and a host of other expressions of ideas. It is very important to understand this concept, so I will repeat it : Copyright is designed to protect the creator of the works. In the beginning of this great country, the framers of the Constitution created the right to copyright to protect the originators of works. But they were also concerned about the general public having access to these works, such as books, which were the main subject of the original copyright act, so that the general populace would be encouraged to read and to learn. That is why they limited the right to copyright to 14 years. However, they also provided for the right to extend the life of the copyright to a longer period by application. But there was still a limit so that publishers and owners of copyrights didn’t end up with a monopoly over vital information.

As time has gone by, more and more expressions of ideas have come into the marketplace, and therefore the number of public domain works has increased as original copyrights expire. Therefore, with so many works available to the public, the laws have changed to reflect the state of the intellectual property world today. To add more protection to copyright owners, the legislature has extended the life of copyright to the life of the creator plus 70 years, for a number of reasons. What is important to know is that copyright protection won’t change without new legislation, and to keep up with that, all you have to do is keep an eye on new copyright laws and how they will affect you.

International Copyright

There are a number of treaties to which the United States is a member or signatory party that can greatly affect your music career. The General Agreement on Tariffs and Trade (GATT), the World Trade Organization (WTO), and many more affect international business and fi nance, and there are many treaties that cover protection of intellectual property and copyrights. The main one that covers intellectual property rights is the Berne Convention for the Protection of Literary and Artistic Works. The World Intellectual Property Organization (WIPO) administers the Berne Convention along with the Rome Convention (the International Convention for the Protection of Performers, Producers of Phonograms, and Broadcasting Organizations). There is also the Universal Copyright Convention (UCC), and of course there are many more, but each of these treaties is very diffi cult to understand due to the nature of the subject matter, and the fact that each country has different laws and interpretations of the same laws. Suffice it to say that understanding these treaties and how they are covered is best left to professionals, unless you just happen to be interested in that field. However, I can assure you that if your music or other intellectual property happens to be good enough to be marketed to the international community, and you happen to have any success in this regard, suffice it to say that you will be able to afford the proper representation to guide you through this maze of law that has developed country by country.

Federal Copyright

Section 102(a) of the Copyright Act states that copyright is available to the following: “Original works of authorship fixed in any tangible medium of expression, now or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.” Section 102(a) further provides that the following works can be copyrighted: “Literary works; musical works; sound recordings; dramatic works; motion pictures and other audiovisual works; pantomimes and choreographic works; pictorial, graphic and sculptural works; and architectural wor­ks.

For anything to be eligible for copyright protection, there are three basic requirements: originality, expression, and fixation. Originality can be somewhat confusing because there are so many ideas fl oating around, but that doesn’t mean that these ideas are copyrightable. Furthermore, the real crux of creativity is usually taking someone else’s basic idea or perhaps style and making it your own and in your own way. After all, don’t most musicians start out by learning cover songs? Pretty much. Don’t most artists sound somewhat similar to some other artist? Yes, critics make these comparisons all the time. Isn’t it possible that the original artist was a major influence to the sound-alike artist? You bet! Does that make the sound-alike unoriginal? Of course it doesn’t, and it certainly doesn’t pursuant to the copyright code. Perhaps you’ve heard the old expression in songwriting that “amateurs borrow and professionals steal.”

Be that as it may, this leads us to expression, which requires that you can’t just have an idea, but you must express it. This is pretty much self-explanatory. You can’t just think it, but you must put the idea down in some tangible medium such as sheet music, a work tape, or something that allows someone to see or hear your work. And this leads us to fixation. Fixation just means that you must express your idea in a tangible medium so that others may listen to it, view it, read it, etc. So if you think about the basics, all you have to do is come up with an idea, and then express it some tangible way so that others will be able to enjoy it or hate it, because there is no accounting for taste. That’s a very simplified version, but you should get the gist and if you are interested in learning more, I highly suggest that you read more about it, because copyright is a very fascinating subject!

Statutory Copyright

Prior to January 1, 1977, there were two types of copyrights: common law copyright and statutory copyright. The common law copyright was what existed with regard to a work before a copyright was published. However, determining if something was published was not very clear. The usual test was whether or not the work was publicly displayed, and there were many opinions about what constituted a public display. Furthermore, if you published your work without any notice of copyright, your work immediately fell into the public domain, which meant that anyone could copy or reproduce your work without any worry of infringement, and the creator of the copyright was out of luck should he desire to assess his rights or ask for protection. Statutory copyright was granted if the creator put a copyright notice on the work with a circle C (©), along with the date and the artist's name, in a reasonably prominent place sufficient to give others notice of the copyright claim. This afforded the creator with statutory protection for the life of the copyright. However, you still have to give notice of the copyright if you want to assert your statutory rights to prevent the work from falling under public domain after publication.

The new law that went into effect in January 1977 did away with common law copyright. After January 1977, the minute that you represented a work in a tangible medium, such as a poem, lyrics, a work tape of a new song, a finished Web site, a painting, or any other work of art, you were immediately protected under a statutory copyright. But statutory protection is not the same as protection afforded the person who actually files for copyright protection. If you go to the trouble to register your copyright with the Library of Congress, and you should, your registration provides you, the writer, with three extremely important rights: the right to file suit, the ability to recover statutory damages, and the right to ask the court to force the infringing party to pay your attorneys’ fees if you prevail. Of course, injunctive relief may also be granted to prevent the proven infringing party from continuing to infringe on your copyright. But if you can prove infringement with a registered copyright, you can really rake in some damages depending on the scope of the infringement, and you will be able to find an attorney to take the case without having to pay him a ton of money up front, if at all— especially if the song that you can prove is infringing on your copyright is actually making good money.

Some people refer to the statutory copyright as the poor man’s copyright. They also believe that if you mail a copy of a work to yourself, it somehow protects you more than just the statutory copyright. But that belief is quite unfounded. There are a number of reasons for this. Mailing something to yourself only creates a presumption that you created the work prior to the postmark date on the letter. However, that presumption can be overcome or is subject to rebuttal, thus switching the burden of proof to the other party, and that is where it gets tricky. If you are asserting that someone has infringed upon your work, the burden of proof is on you to show that your work was created first. What happens if you only have a mailed copy of your song as proof of the date of creation? Let’s just assume that some unscrupulous person has a bunch of letters with an earlier postmark that he has mailed to himself, and all he has done is copy your work, either by copying the lyrics or just performing a similar version of your song onto a work tape. After that, he inserted his version into the steamed-open envelope. Now he has alleged proof that he created their work first. Obviously, he has switched the burden of proof to you, and you must show that he has steamed a blank letter open and added your song. Trying to prove that is very much like proving a negative, and when it comes to litigation, it doesn’t matter what you know, only what you can prove. Furthermore, proving a negative is next to impossible. Therefore, in that scenario, there is a good chance that you will lose your infringement argument and therefore lose your right to copyright your song.

There is a saying in the legal business: “He who is first in time is first in right.” This simply means that if you are making a claim or are headed for litigation, and you are able to show that you filed your copyright first, you have done all that you can to protect your work. So it is always best to file the appropriate copyright before you decide to send out your work tapes, demos, lead sheets, lyrics, or any other form of expression on which you have saved your music, so that you are completely protected by all facets of copyright law. Failing to take this simple step could be devastating, and the cost of filing is small indeed versus the cost of what you will lose in the end if you do not file for the appropriate copyright.