“What Is Copyright”

By Shirley Washington, JD MBA. Assistant Director, Music Business Program at NYU.

Copyright Law Primer

Part I

1. What is copyright?
Copyright is legally defined as "a limited duration monopoly". It means that you own your song and have control (monopoly) over the rights to that song for a certain period of time as defined by law.

2. What legal authority grants me these rights and why?
The US Copyright Law grants you ownership in your songs and was enacted by Congress as part of the legislative authority granted to Congress by the US Constitution “to promote the progress of science and useful arts by giving creators exclusive right to their works for a limited period of time”.

3. How and when do I obtain copyright in the songs I've created?
Copyright begins the moment the songwriter fixes the song in any tangible medium of expression. When your song is recorded on tape or written on paper you have a copyright. In addition, it must be original and of sufficient materiality to constitute a work.

4. What rights do I possess in this copyright?
When you have a copyright (or limited duration monopoly), you possess a set of exclusive rights. These exclusive rights allow you, and only you, the right to do the following things unless permission is given by you, the copyright owner, granting these rights to someone else. Any unauthorized exercise of any of these rights by anyone but the copyright owner is called copyright infringement.


a) The right to reproduce your song or musical work in "phonorecords", which includes vinyl, cassette tapes, CD's, or copies which includes sheet music, digital files or otherwise make copies of it. This means no one can put your song on a cassette or compact disc, publish it as sheet music or use it in a movie or download it to their computer, without your permission.

b) The right to distribute copies or phonorecords of your song to the public. For example, a record company will request to use your song and put it on a master called a sound recording. The record company will manufacture the master and make copies to distribute to the public. The record company must get permission to distribute these copies with your song or musical work on it because you, the copyright owner, possess the right to distribute these copies to the public. (subject to the First Sale Doctrine)

c) The right to create "derivative works" or alternate versions of your song. A derivative work is an alternate version of an original work. Examples include, "Eat It" by Weird Al Yankovic based upon the song "Beat It" by Michael Jackson and songs used in commercials that sell anything from NIKE footwear to California raisins.

d) The right to perform your song publicly.
When you hear a song on an elevator, in a club, on television, at a concert or on the radio, your song is being performed publicly. As such you are entitled to be paid for the use of your song by the venue, the radio station, or the club. The organizations that monitor and collect the revenue from your song for public performances are BMI, ASCAP, and SESAC. They are known as Performing Rights Organizations.

When you hear your song being played over the internet by means of “webcasting or streaming” this also an example of the public performance of your song.

e) The right to display your song publicly.

Although this right is more specifically applies to artwork or sculptures if you see the words of your song being displayed in a piece of artwork you could conceivable sue for copyright infringement.


f) In the case of sound recordings the right to perform the work publicly, by means of a digital audio-transmission.

5. Are there any exceptions to my right exclusive rights to my copyright or limited duration monopoly?

Yes. There are four exceptions that are common to the music industry.

Exception One- Elements of Songs. You'll find the exclusive rights granted to copyright owners only apply to what is actually protected by
copyright. Unfortunately, there are certain elements of your songs that are not protected by copyright.


They include:

1) ideas,

2) themes of songs,

3) song titles,

4) song construction, and,

5) arrangements of other people's songs.


Exception Two-Work for Hire.

Work for hire is an exception to the rule that the person who creates a work owns the copyright in that work. When a musical work is prepared as a work for hire, the client who commissions the music owns the copyright in it from the moment of creation and is considered its author for copyright purposes. Basically, the songwriter is an employee of this person, and the client specifies the sort of musical composition he wants and the composer prepares the composition according to those specifications. Work for hire situations are common in two specific areas in the music industry commercial jingles, and songs created for film soundtracks or film scores.

Exception Three-Compulsory Licenses.

The law provides that copyright owners of non-dramatic music have complete control over recording rights of their properties until they license the material for the first recording. After this first recording is distributed to the public, the copyright owner is compelled by law to license the composition to any other person to produce and distribute the recordings of the copyrighted music in exchange for a fixed statutory royalty. Compulsory license basically means that you must issue a license to anyone who wants to use your work once you have previously recorded and released it, whether you like it or not. It says "a license to use a song must be granted by the copyright owner if all of the following are true: (1) the song is a "nondramatic" musical composition; (2) the song has been previously recorded and distributed publicly in phonorecords with the copyright owner's permission; and (3) the requested license is for the use of your song in phonorecords only.

The license that is granted to use the song is referred to as a "compulsory mechanical license". The payments received for the right to mechanically reproduce your song in a phonorecord is called a mechanical royalty.

Lets go through an example to help you better understand the idea of compulsory license. Joe Songwriter wrote a song called "Sweet Summer Day". "Sweet Summer Day" was recorded by the recording artist, Mary WareRunow. The single went gold (i.e. sold 500,000 units). Now, two years later, Angus Spartucus, the heavy metal group would like to record "One Sweet Day" on their new heavy metal album "Metal My Way ". Their record company will go to Joe's publishing company and request that a mechanical license be issued to use "Sweet Summer Day". The license must be issued since (1) the song is a "nondramatic musical composition"; (2) the song has been previously recorded and distributed publicly in phonorecords (Mary Warerunow) Joe's permission; and (3) the requested license is for the use of Joe's song in phonorecords only.

Exception Four- “Fair Use”

One of the primary objectives of Congress during the legislation process is finding a way to balance the different interests of distinct individuals. Under the fair use doctrine, which is a legal defense to copyright infringement, Congress attempted to reconcile the rightful interests of copyright owners with the legitimate, nonprofit interests of individuals, schools, libraries, churches, and noncommercial broadcasters in using copyrighted material. Basically it allows minimal takings of copyrighted material for the furtherance of purposes such as scholarship, research, and news reporting. In determining whether the use made of a work is a fair use four criteria have been established by prior court actions and are incorporated in the 1976 act. They generally relate to the purpose or character of the use, the nature of the work, how much is used of the work and the effect or value of the use on the potential market.

6) So what is copyright protection and how long are my songs protected under the copyright law?

a) Copyright Protection means the protection the law gives copyright owners from the unauthorized use of their work.

b) The term of copyright is the period during which the law protects a particular work. There are two basic terms of copyright, one that applies to works originally copyrighted before January 1, 1978 and works copyrighted on or after January, 1, l978.

Works Copyrighted before January 1, l978.

Under the law in effect before 1978, copyright was secured either on the date a work was published, or on the date of registration if the work was registered in unpublished form. The copyright endured for a first term of 28 years from the date it was secured. During the last (28th) year of the first term, the copyright was eligible for renewal for another 28 years.

The new copyright law has extended the renewal term from 28 to 67 years for copyrights that were in existence on January 1, l978. In addition, an amendment to the copyright act in 1992 eliminated the requirement to register a renewal of a pre 1978 copyright act during the 28th year to keep the work from falling into the public domain.

Works originally copyrighted on or after January 1, l978.

A work that is created (fixed in tangible form or medium of expression) for the first time on or after January 1, l978, is automatically protected from the moment of its creation until 70 years after the songwriters death.

If you write your song with one or more co-writers, (a joint work) and the work was not created as a "work for hire" copyright protection will endure until 70 years after the last of the co-author's dies.

If, however, a musical composition is written as a work for hire, anonymously, or under a fictitious name, the term of copyright for the song will be either one hundred twenty years from the date the song was created or ninety-five years from the date it is "published" whichever period expires first.

For example, I write a song under a fictitious name in 1975 but that song is not published until 1980. I have protection of that song 95 years from 1975 or 95 years from the date it is published, 1980 whichever expires first. Therefore copyright protection for this song will technically end in year 2070, 95 years from the date it is created.

c) What does published mean within the copyright statute?

The statute says that selling or otherwise distributing copies of a song to the public in the form of sheet music or phonorecords is "publication". Acceptance of a song by a music publisher is not publication, nor is a public performance of a song on stage or on the radio in and of itself publication.

d) Public Domain Songs

Public Domain Songs are those songs for which copyright protection has expired. They are said to have fallen into the "public domain". When a song falls into the public domain the songwriter's right to control the use of the song has expired and the song has become available for use in any way by any member of the public, including you. You can lift the lyrics, use the melody, create a parody, change the lyrics, and change the melody without breaking the law.

7) What happens when I transfer the rights to my songs to someone else?

Oftentimes you, the songwriter, will find it necessary or want to transfer or assign some or all of your rights in your songs to someone else in order to generate revenue from your songs. This is normally the case when sign up with a music publisher to help you administer and/or promote your song or songs you have in your catalogue. Even if you own your own music publishing company, you might want to assign your rights to a song over to a record company for use. The technical procedure for this includes filing the necessary paperwork affirming the transfer in the Copyright Office and paying a fee. Following these actions, the copyright Office issues a Certificate of Recordation. This recordation puts everyone on notice (legally called “constructive” notice) of the facts stated in the certificate of recordation.



8) Can I obtain the rights to those songs back at any time?

In the case of any work other than a work made for hire, the exclusive or non-exclusive “grant of transfer” or license of copyright executed by the author on or after January 1, 1978 is subject to termination under the following provisions under Section 203:

i) Termination of the grant or license can occur anytime during a period of 5 years beginning at the end of 35 years from the date of execution of the grant or license; or

ii.) If the grant includes the right to publish the work, the period begins at the end of 35 years from the date of publication of the work under the grant or at the end of 40 years from the date of execution of the grant, whichever term ends earlier.

iii) Advance notice of intent to terminate must be in writing, signed by the number and proportion of owners of termination interests, by their duly authorized agents or designated assignees including successors in title. The notice shall state the effective date of the termination, which shall fall within the five year period as designated in (i) or (ii) above and the notice shall be served not less than 2 or more than 10 years before that date. The notice must also be recorded in the Copyright Office before the effective date of termination.

iv) Termination of the grant may be effected notwithstanding any agreement to the contrary, including an agreement to make a will or to make any further grant.

v) Upon the effective date of termination, all rights that were covered by the terminated grant revert to the author or authors.

vi) Unless and until termination is effected under this section, the grant, if it does not provide otherwise, continues in effect for the term of copyright provided by law.

9) So how to do I register my copyright?

Copyright Registration is a relatively simple matter. All copyrights are registered in the United States Copyright Office in Washington, D.C. The two forms of copyright registration are:

The PA Form- for registration of songs or musical works and

The SR FORM- for registration of sound recordings.

8) How much does it costs to register my copyright?

The copyright registration fee is presently $30 per registration or per song. If you write a lot of songs paying $30 each time can be financially burdensome, therefore you should consider registering a group of songs together for one $30 fee. A group or collection of songs may be registered together if they were written by the same person and the owner's of the copyright in each is the same and, the songs are assembled in an orderly form under one title.

For example, you can register your first group of songs as "The collective songs of Jeanine Jones, 2001, Volume I". If you register more songs in 2001, you can call the second collection "The Collective Songs of Jeanine Jones, 2002, Volume II" and so on.

The individual titles of your songs will not appear on the copyright registration certificate, but the compositions themselves will be registered. So keep a list for your own records.

Besides completing the registration form and paying the registration fee, there is a "deposit requirement." You must send the Copyright Office one copy of an unpublished song or two copies of the "best edition" of a published song. In addition, all published works must be deposited with the Copyright Office within three months after publication.



Make sure the application is filled out accurately and is legible. You don't need a lawyer to complete the forms but it is an official legal document that evidences certain important legal rights and responsibilities.



9) What does registration accomplish?



The following are the most significant advantages of registering your song with the copyright office:



a. Registration establishes first hand evidence in court of the validity of the copyright (i.e. that you own it, it's original, and a material work) and of the facts stated in the certificate;




b. Registration establishes a public record of the copyright claim or gives constructive notice to the world that you claim ownership and authorship of your song.



c. Registration is necessary before any infringement suits may be filed in court. If you do not register within 90 days of publication or before an infringement occurs you are not entitled to legal fees or statutory damages.



d. Registration protects you against false accusations of copyright infringement. Note-mailing your song to yourself and preserving the unopened envelope to prove that the song inside existed on the date of the postmark, a homemade remedy for proving authorship known as "poor man's copyright", is virtually worthless as evidence in a lawsuit and is not a substitute for copyright registration.



10) What kind of copyright notice do I place on my songs?



There are basically two types of copyright notice- one used for copyrighting a song, and the other for copyrighting a sound recording.



Copyright Notice is divided into three parts:

1. The word "copyright" or the symbol or the symbol (for sound recordings only).

2. The year of first publication of the work, which may not be the year it was created or the year it was registered.

3. The name(s) of the copyright owner(s).



a) Copyright Notice for a song.



Example: Copyright 2001 Jeanine Jones or © 2001 Jeanine Jones.



You should use this symbol on the J-Cards, sheet music and/or lyrics on the album, if printed.



b) Copyright Notice for a sound recording.



2001 Sony Music Entertainment



You should use this symbol on the label, container of the cassette or the CD.



These are the basics of copyright that you, the songwriter, need to know and how it applies to your songs. Part II of this Copyright Law Primer will discuss more advanced issues relating to copyright including, “Sampling”, “Copyright Law and the Internet”.



References

The following government publications can be obtained from the copyright office free or at your local public library and can further assist in understanding the Copyright and its procedures:

Copyright Basics. (Circular 1)

Copyright Notice. (Circular 3)

Works-Made-For-Hire Under the 1976 Copyright Act. (Circular 9)

Duration of Copyright (Circular 15a)

How to Investigate the Copyright Status of a Work (Circular 22).

Copyright Registration of Musical Compositions and Sound Recordings. (Circular 56a).

The phone number to request to receive these publications is: (202)-707-9100.
 

Article provided by Shirley Washington, JD MBA. Assistant Director, Music Business Program at NYU.

About the author, Shirley A. Washington

Shirley A. Washington is Assistant Director of the Music Business Program at the Steinhardt School of Education at New York University. She administers the Music Business Internship Program, advises both undergraduate and graduate students as well as teaches a graduate level course in Promotion and Publicity in the Recording Industry. She is also an adjunct professor at Ramapo College in Mahwah, N.J. where she teaches The Business of Music and Advanced Business of Music. Shirley received her B.A. from Fordham University, J. D. degree from Howard University Law School and an M.B.A. from New York University’s Stern Business School. She began her professional career working in the tax departments of major accounting firms such as Ernst and Young and Laventhol and Horwath. She also has worked on both the creative side as well as the business side of the recording industry. Her first position in the industry was as a tax accountant/attorney with the business management firm of New York Entertainment and Sports Advisors. She then honed her skills on the creative side of the industry working in a variety of positions for Apollo Theatre Records (a former subsidiary of the world famous Apollo Theatre in Harlem, NY) and Inner City Artist Management. Shirley has written extensively on topics in the recording industry first as a contributing writer to the Black Entertainment and Sports Advisors (BESLA) newsletter. She was former editor-in-chief of both In Sync, the newsletter published by Women In Music, Inc. and Just About Music (formerly AARA magazine) a newsletter that catered to the new artist and recording industry professional. Her hobbies include tennis, golf, skiing, reading, listening to music and photography.