Copyright Fact and Fiction
The Copyright FAQ - By Jeffrey P. Fisher
No other aspect of the music industry is more misunderstood than copyright. Musicians are perpetually worried that someone, somewhere will steal their creative work. Unfortunately, there is mostly wrong information that continues to circulate. This FAQ aims to set the record straight with a simple, no-nonsense, and ultimately factually correct description of the US Copyright Law.
Copyrights cover literary, artistic, and musical works. Trademarks are brand names and/or designs applied to products or used in connection with services including band names and logos. Patents protect inventions and improvements to existing inventions. For complete information about trademarks, visit my Trademark FAQ.
How do I copyright my music and lyrics?
Contrary to popular misconception there is no great mystery on how to copyright your original music and lyrics. According to the US Copyright law as soon as you affix your music and lyrics in a tangible medium it is afforded copyright protection.
According to the Copyright Office: "Under the present law, copyright is secured automatically when the work is created, and a work is "created" when it is fixed in a copy or phonorecord for the first time. In general, "copies" are material objects from which a work can be read or visually perceived either directly or with the aid of a machine or device, such as books, manuscripts, sheet music, film, videotape, or microfilm. "Phonorecords" are material objects embodying fixations of sounds (excluding, by statutory definition, motion picture soundtracks), such as audio tapes and phonograph disks. Thus, for example, a song (the "work") can be fixed in sheet music ("copies") or in phonograph disks ("phonorecords"), or both."
The copyright protection is outlined under section 102 of the US Copyright Law:
"Copyright protection subsists. . .in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works. . .include:
(1) literary works;
(2) musical works, including. . .words;
(3) dramatic works. . .including music;
(4) pantomimes or choreographic works;
(5) pictorial, graphic, and sculptural works;
(6) motion pictures and other audiovisual works; and
(7) sound recordings."
Section 102 (b) does not extend copyright protection to:
"any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described. . .in such work."
When a work of original authorship is fixed in any tangible medium (paper, videotape, computer code, etc.), the author gets copyright protection. This protection includes five exclusive rights.
Please note that ideas are not protected regardless of the form the idea takes. Only the exact way the idea is conveyed, like the words on this page, is given copyright protection. A principle of operation like a copy machine is not given copyright protection, but it may be patented. A band name and logo or the title of a book or motion picture may not be copyrighted, but can be trademarked. For complete information about trademarks, visit my Trademark FAQ .
What is a tangible medium?
Any real thing used to capture and store a suitable representation of the music and lyrics such as a recordings on a cassette, chords, melody, and lyrics written on paper, etc.
Do I need to include the copyright symbol?
No you do not need to include the copyright symbol but it is always a good idea to do so. The correct format is:
© 2003 Jeffrey P. Fisher
or
Copyright 2003 Jeffrey P. Fisher
The circle c and the word copyright are interchangeable.
What are my precise rights when I copyright music and lyrics?
The owner of the copyright is the author of the original work. The owner has, under Section 106,
"the exclusive rights to do and to authorize any of the following:
(1) to reproduce the copyrighted work in copies;
(2) to prepare derivative works based upon the copyrighted work;
(3) to distribute copies . . . to the public by sale or other transfer of ownership, or by rental, lease, or lending;
(4) in the case of literary, musical, dramatic . . . and motion pictures and other audiovisual works, to perform the copyrighted work publicly; and
(5) in the case of literary. . .pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly."
These five rights are exclusive. They are not waived through inactivity or failure to enforce. These rights can be enforced at the owner's discretion and at any time. It is illegal for anyone to violate any of the rights provided to the owner of the copyright.
The differences between (4) and (5) need further clarification. To 'perform' a work, showing a video for example, is to show the work in its entirety. To 'display' a video would be to show individual frames non-sequentially. Also, a sculpture cannot be performed; it can only be displayed.
Who is the copyright owner or author?
The person who creates, owns. This clever phrase simplifies the entire copyright law. One exception to this rule is the "work for hire". A work that is prepared "by an employee within the scope of his or her employment" is considered a work made for hire. The copyright ownership belongs to the employer.
Work that is "commissioned for use as a contribution to a collective work" is a work made for hire only if the parties expressly agree in a written instrument signed by them. Put simply, an employee automatically forfeits copyright ownership. A freelance, independent contractor automatically retains copyright ownership. Both situations can be reversed through a signed, written agreement.
Are there any exceptions to my copyright?
There are limitations on the exclusive rights of owners. This comes under Section 107: Fair Use.
"The fair use of copyrighted work . . . for purposes such as criticism, comment, news reporting, teaching, scholarship, or research, is not an infringement of copyright. In determining whether the use . . . is a fair use, the factors to be considered include:
(1) the purposes and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work."
These four points show how open the Fair Use Doctrine really is. It was designed around the philosophy that Society has a need to use that far outweighs the monopoly to create. Most copyright experts agree that a good lawyer could win a fair use dispute either way. Congress's intention meant only litigation could solve copyright infringement involving fair use on a case-by-case basis. There are no fixed rules; each case must be litigated on its own circumstances.
How long does my copyright last?
"Copyright in a work created on or after 1/1/78 subsists from its creation and . . . endures for. . .the life of the author and seventy years after the author's death."
Do I need to register my copyright?
Registration of a copyrighted work is not mandatory. No publication, registration, or any other action in the Copyright Office is required to secure copyright. A common misconception is that a work is not copyrighted until it is registered. This is wrong! The work is copyrighted the moment it is fixed in a tangible medium. Another misconception is that by registering the work, you prove authorship. This is also quite misleading. Registration allows the author to "stake a claim" to the work in question. The Copyright Office does not determine the validity of submitted work. The burden of proof falls only on the author/owner.
What about the poor man's copyright where you mail yourself a cassette via registered mail?
Since you are given copyright protection the instant you record your song on the cassette, there is absolutely no need to mail a copy by registered mail. The poor man's copyright is simply this: create a record of your song. Write it down (chords, melody, and lyric) or record it in some form (tape, digital computer file, et al.). That is all you really must do! However, evidence is evidence and this step may help your case. You would be much better off, though, to give your tape to a lawyer to hold for you along with a dated notorized affidavit.
What are the advantages if I register my copyright?
According to the Copyright Office:
"Copyright registration is a legal formality intended to make a public record of the basic facts of a particular copyright. Remember that registration is not a condition of copyright protection. Even though registration is not generally a requirement of protection, the copyright law provides several inducements or advantages to encourage copyright owners to make registration. Among these advantages are the following:
Registration establishes a public record of the copyright claim;
Registration is ordinarily necessary before any infringement suits may be filed in court;
If made before or within 5 years of publication, registration will establish prima facie evidence in court of the validity of the copyright and of the facts stated in the certificate; and
If registration is made within 3 months after publication of the work or prior to an infringement of the work, statutory damages and attorney's fees will be available to the copyright owner in court actions. Otherwise, only an award of actual damages and profits is available to the copyright owner."
Can I register a collection of my songs?
Since it can be rather expensive to register single songs, you can put several songs on one tape, fill out one form, pay one $30 fee, and register the whole lot. However, this collection must be unpublished and assigned one title for the entire collection.
According to the Copyright Law "A work may be registered in unpublished form (and only unpublished form) as a "collection," with one application and one fee, under the following conditions:
The elements of the collection are assembled in an orderly form;
The combined elements bear a single title identifying the collection as a whole;
The copyright claimant in all the elements and in the collection as a whole is the same; and
All of the elements are by the same author, or, if they are different authors, at least one of the authors has contributed copyrightable authorship to each element.
Unpublished collections are indexed in the Catalog of Copyright Entries only under the collection title."
This implies that that the collection, as a whole, is afforded copyright protection and not the individual songs. However, this is a fuzzy issue and I've never heard a definitive answer. If you have a lot of unpublished songs, go ahead and register your copyright to the collection. Should you decide to publish an individual song, register your copyright to that song on its own.
How do I register my work?
To register your music and lyrics, send these three elements in the same envelope:
(1) A properly completed application form;
(2) A nonrefundable filing fee of $30 (this fee often changes; check with the copyright office for the curent charge) for each application; and
(3) Two copies of a non-returnable deposit of the work being registered.
Mail this to: Register of Copyrights, Copyright Office, Library of Congress, Washington, D.C. 20559
How do I get the forms?
Contact the Copyright office at the above address or call (202) 707-3000 and request forms and instructions PA and SR. Now you can get all the forms you need in Adobe's PDF format from the US Copyright Office. The Adobe Acrobat PDF Reader is free.
Form PA: for published and unpublished works of the performing arts (musical and dramatic works, pantomimes and choreographic works, motion pictures and other audiovisual works). This is best for registering your copyright to music (melody) and lyrics only.
Form SR: for published and unpublished sound recordings. This is best when you wish to register an actual recording; the specific way the music and lyrics are conveyed.
--------------------------------
Jeffrey P. Fisher's latest book, "Moneymaking Music" joins his three other best-selling music books: "Ruthless Self-Promotion in the Music Industry," "Profiting From Your Music and Sound Project Studio," and "How to Make Money Scoring Soundtracks and Jingles." Get more information on his Web site at www.jeffreypfisher.com
No other aspect of the music industry is more misunderstood than copyright. Musicians are perpetually worried that someone, somewhere will steal their creative work. Unfortunately, there is mostly wrong information that continues to circulate. This FAQ aims to set the record straight with a simple, no-nonsense, and ultimately factually correct description of the US Copyright Law.
Copyrights cover literary, artistic, and musical works. Trademarks are brand names and/or designs applied to products or used in connection with services including band names and logos. Patents protect inventions and improvements to existing inventions. For complete information about trademarks, visit my Trademark FAQ.
How do I copyright my music and lyrics?
Contrary to popular misconception there is no great mystery on how to copyright your original music and lyrics. According to the US Copyright law as soon as you affix your music and lyrics in a tangible medium it is afforded copyright protection.
According to the Copyright Office: "Under the present law, copyright is secured automatically when the work is created, and a work is "created" when it is fixed in a copy or phonorecord for the first time. In general, "copies" are material objects from which a work can be read or visually perceived either directly or with the aid of a machine or device, such as books, manuscripts, sheet music, film, videotape, or microfilm. "Phonorecords" are material objects embodying fixations of sounds (excluding, by statutory definition, motion picture soundtracks), such as audio tapes and phonograph disks. Thus, for example, a song (the "work") can be fixed in sheet music ("copies") or in phonograph disks ("phonorecords"), or both."
The copyright protection is outlined under section 102 of the US Copyright Law:
"Copyright protection subsists. . .in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works. . .include:
(1) literary works;
(2) musical works, including. . .words;
(3) dramatic works. . .including music;
(4) pantomimes or choreographic works;
(5) pictorial, graphic, and sculptural works;
(6) motion pictures and other audiovisual works; and
(7) sound recordings."
Section 102 (b) does not extend copyright protection to:
"any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described. . .in such work."
When a work of original authorship is fixed in any tangible medium (paper, videotape, computer code, etc.), the author gets copyright protection. This protection includes five exclusive rights.
Please note that ideas are not protected regardless of the form the idea takes. Only the exact way the idea is conveyed, like the words on this page, is given copyright protection. A principle of operation like a copy machine is not given copyright protection, but it may be patented. A band name and logo or the title of a book or motion picture may not be copyrighted, but can be trademarked. For complete information about trademarks, visit my Trademark FAQ .
What is a tangible medium?
Any real thing used to capture and store a suitable representation of the music and lyrics such as a recordings on a cassette, chords, melody, and lyrics written on paper, etc.
Do I need to include the copyright symbol?
No you do not need to include the copyright symbol but it is always a good idea to do so. The correct format is:
© 2003 Jeffrey P. Fisher
or
Copyright 2003 Jeffrey P. Fisher
The circle c and the word copyright are interchangeable.
What are my precise rights when I copyright music and lyrics?
The owner of the copyright is the author of the original work. The owner has, under Section 106,
"the exclusive rights to do and to authorize any of the following:
(1) to reproduce the copyrighted work in copies;
(2) to prepare derivative works based upon the copyrighted work;
(3) to distribute copies . . . to the public by sale or other transfer of ownership, or by rental, lease, or lending;
(4) in the case of literary, musical, dramatic . . . and motion pictures and other audiovisual works, to perform the copyrighted work publicly; and
(5) in the case of literary. . .pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly."
These five rights are exclusive. They are not waived through inactivity or failure to enforce. These rights can be enforced at the owner's discretion and at any time. It is illegal for anyone to violate any of the rights provided to the owner of the copyright.
The differences between (4) and (5) need further clarification. To 'perform' a work, showing a video for example, is to show the work in its entirety. To 'display' a video would be to show individual frames non-sequentially. Also, a sculpture cannot be performed; it can only be displayed.
Who is the copyright owner or author?
The person who creates, owns. This clever phrase simplifies the entire copyright law. One exception to this rule is the "work for hire". A work that is prepared "by an employee within the scope of his or her employment" is considered a work made for hire. The copyright ownership belongs to the employer.
Work that is "commissioned for use as a contribution to a collective work" is a work made for hire only if the parties expressly agree in a written instrument signed by them. Put simply, an employee automatically forfeits copyright ownership. A freelance, independent contractor automatically retains copyright ownership. Both situations can be reversed through a signed, written agreement.
Are there any exceptions to my copyright?
There are limitations on the exclusive rights of owners. This comes under Section 107: Fair Use.
"The fair use of copyrighted work . . . for purposes such as criticism, comment, news reporting, teaching, scholarship, or research, is not an infringement of copyright. In determining whether the use . . . is a fair use, the factors to be considered include:
(1) the purposes and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work."
These four points show how open the Fair Use Doctrine really is. It was designed around the philosophy that Society has a need to use that far outweighs the monopoly to create. Most copyright experts agree that a good lawyer could win a fair use dispute either way. Congress's intention meant only litigation could solve copyright infringement involving fair use on a case-by-case basis. There are no fixed rules; each case must be litigated on its own circumstances.
How long does my copyright last?
"Copyright in a work created on or after 1/1/78 subsists from its creation and . . . endures for. . .the life of the author and seventy years after the author's death."
Do I need to register my copyright?
Registration of a copyrighted work is not mandatory. No publication, registration, or any other action in the Copyright Office is required to secure copyright. A common misconception is that a work is not copyrighted until it is registered. This is wrong! The work is copyrighted the moment it is fixed in a tangible medium. Another misconception is that by registering the work, you prove authorship. This is also quite misleading. Registration allows the author to "stake a claim" to the work in question. The Copyright Office does not determine the validity of submitted work. The burden of proof falls only on the author/owner.
What about the poor man's copyright where you mail yourself a cassette via registered mail?
Since you are given copyright protection the instant you record your song on the cassette, there is absolutely no need to mail a copy by registered mail. The poor man's copyright is simply this: create a record of your song. Write it down (chords, melody, and lyric) or record it in some form (tape, digital computer file, et al.). That is all you really must do! However, evidence is evidence and this step may help your case. You would be much better off, though, to give your tape to a lawyer to hold for you along with a dated notorized affidavit.
What are the advantages if I register my copyright?
According to the Copyright Office:
"Copyright registration is a legal formality intended to make a public record of the basic facts of a particular copyright. Remember that registration is not a condition of copyright protection. Even though registration is not generally a requirement of protection, the copyright law provides several inducements or advantages to encourage copyright owners to make registration. Among these advantages are the following:
Registration establishes a public record of the copyright claim;
Registration is ordinarily necessary before any infringement suits may be filed in court;
If made before or within 5 years of publication, registration will establish prima facie evidence in court of the validity of the copyright and of the facts stated in the certificate; and
If registration is made within 3 months after publication of the work or prior to an infringement of the work, statutory damages and attorney's fees will be available to the copyright owner in court actions. Otherwise, only an award of actual damages and profits is available to the copyright owner."
Can I register a collection of my songs?
Since it can be rather expensive to register single songs, you can put several songs on one tape, fill out one form, pay one $30 fee, and register the whole lot. However, this collection must be unpublished and assigned one title for the entire collection.
According to the Copyright Law "A work may be registered in unpublished form (and only unpublished form) as a "collection," with one application and one fee, under the following conditions:
The elements of the collection are assembled in an orderly form;
The combined elements bear a single title identifying the collection as a whole;
The copyright claimant in all the elements and in the collection as a whole is the same; and
All of the elements are by the same author, or, if they are different authors, at least one of the authors has contributed copyrightable authorship to each element.
Unpublished collections are indexed in the Catalog of Copyright Entries only under the collection title."
This implies that that the collection, as a whole, is afforded copyright protection and not the individual songs. However, this is a fuzzy issue and I've never heard a definitive answer. If you have a lot of unpublished songs, go ahead and register your copyright to the collection. Should you decide to publish an individual song, register your copyright to that song on its own.
How do I register my work?
To register your music and lyrics, send these three elements in the same envelope:
(1) A properly completed application form;
(2) A nonrefundable filing fee of $30 (this fee often changes; check with the copyright office for the curent charge) for each application; and
(3) Two copies of a non-returnable deposit of the work being registered.
Mail this to: Register of Copyrights, Copyright Office, Library of Congress, Washington, D.C. 20559
How do I get the forms?
Contact the Copyright office at the above address or call (202) 707-3000 and request forms and instructions PA and SR. Now you can get all the forms you need in Adobe's PDF format from the US Copyright Office. The Adobe Acrobat PDF Reader is free.
Form PA: for published and unpublished works of the performing arts (musical and dramatic works, pantomimes and choreographic works, motion pictures and other audiovisual works). This is best for registering your copyright to music (melody) and lyrics only.
Form SR: for published and unpublished sound recordings. This is best when you wish to register an actual recording; the specific way the music and lyrics are conveyed.
--------------------------------
Jeffrey P. Fisher's latest book, "Moneymaking Music" joins his three other best-selling music books: "Ruthless Self-Promotion in the Music Industry," "Profiting From Your Music and Sound Project Studio," and "How to Make Money Scoring Soundtracks and Jingles." Get more information on his Web site at www.jeffreypfisher.com
posted by The Indie Music Store | 7:52 AM
0 Comments:
Post a Comment
<< Home