Updated: Jun 20, 2021
Copyright is one of those things that any composer, songwriter, or recording musician/producer has to deal with; you know you need to have it for your songs and recordings, and we all basically understand the idea of legally protecting our music, but when it comes down to the specifics of copyright, there can be a lot of questions. When I released my EP, Foundation, last year, a number of those questions came up. There’s a lot of information out there on copyright, some of it “internet knowledge” and some of it indecipherable lawyer-speak.
The United States Copyright Law says that “an original work of authorship” is entitled to copyright protection once it has been “fixed in a tangible form.” As with any legal definition, there are a number of components there. First, it needs to be “an original work of authorship.” That means it cannot be a duplicate of someone else’s work or something the author already owns. Secondly, the protection starts once something is fixed in a tangible medium or form. That means that the author needs to do something to preserve the creation of the original work. That can include something simple like writing down the words and the chord progressions or recording an acoustic performance on a cell phone, all the way up to studio recordings of a song. Once that happens, the US Copyright Law protects your new original song creation. However, without a registration applied for before infringement occurs, an author can only recover actual losses proven as a result of the infringement, and an infringer can be ordered to stop infringing. A US Copyright Registration provides an author with more protection, in addition to the rights the author already has for an unregistered work. By obtaining a US Copyright Registration, the author does not have to prove when the work was created in a claim for infringement. Furthermore, when a song is registered, the author can demand the payment of statutory damages instead of having to prove actual damages (the specific amount of losses the author suffered as a result of the infringement). When a work is registered, an author can demand a payment of the author’s attorney’s fees in a lawsuit for infringement. None of these rights are available when a registration is not present. However, it is crucial to apply for the registration before the infringement occurs — it’s too late to get these benefits if the infringement occurs before you register the song.
The Poor-Man's Copyright
The old wives-tale states that if you simply mail your material to yourself then you have copyright-protected piece. Not true. All the registration rights only apply when the Copyright Office registers a work. This method may be helpful in trying to establish a date of creation of the work, but compared to the ease of registration, it is not anything a smart author should ever rely upon. Applying for a US Copyright Registration is fairly straightforward and inexpensive.
Material Titles and Author Names
Song titles are not subject to copyright protection. In fact, there are many songs registered with the US Copyright Office with the same title. This makes it important to provide the Copyright Office with the full and correct information, including author’s full name and year of birth.
If someone has the same name as you you do not need to register your work under a different name. There are many works of authorship registered with the Copyright Office. It is not uncommon the authors’ names are the same or similar. Again, using your full name, including middle name or initial, and a year of birth, helps to distinguish the works of different authors.
If an author provides all necessary information correctly to the Copyright Office, then there is no need to involve a lawyer. However, when the song information gets more complicated, including multiple authors, samples, translations, covers, etc., it is more likely for a registration to have errors. What a lawyer typically does is charge a client for filing one copyright application and show them the basic process.
Copyrighting Music VS Copyrighting Recording
These two differ greatly, and some education on the basics of music copyright is required. There are two protectable copyrights in each recorded song. The first is the copyright in the underlying musical composition. An author only needs to “fix in a tangible form” the words and music to an original work to protect the rights in the musical composition. That “fixing” does not necessarily even require a recording and can be as simple as writing the chords and lyrics on a piece of paper. The musical composition can be protected by a registration filed using Form PA with the Copyright Office.
However, given the ease of making some type of a recording today, the use of a recording in filing the copy of the work in a recording format (for example, MP3) also serves to protect the sound recording, as it is registered with the Copyright Office. Thus, an artist can get a “two-for-one” by using Form PA and submitting a sound recording of the work.
The United States Copyright Law also protects a sound recording of a musical work. Of course, there can be many recordings of a particular musical composition, often by artists and record companies that do not own rights in the underlying musical composition. This is commonly referred to as a “cover” recording. In this circumstance, the party creating (or paying for) the recording is the owner of the master recordings and the sound recording copyright.
When two or more people coauthor a song, they are each entitled to their respective percentage of ownership in that musical composition. The natural question is always: “What percentage?” The answer can be different in each circumstance. For instance, if one coauthor made a couple of lyric changes in a song, the other author(s) might believe that should warrant a small percentage. This circumstance might be different if the small lyric changes produced the hook in the song. Sometimes a very smart band works using a written agreement, which sets out what percentages of original songs each band member owns. It can be an “all-for-one and one-for-all” approach, where songwriting percentages are equal or not.
We encourage our clients to utilize a simple coauthor songwriters’ agreement during all cowrite sessions. At the end of each session, everyone signs and sets out the various percentages of ownership of everyone in the session. This is a great practice for a number of reasons. First, coauthors must have a contract signed by all coauthors if the percentages are not equal. Second, everyone’s memory is best at the time of the event. Third, money is typically not an issue at that point. When money plays a bigger role later, everyone’s memory has a tendency to change. Don’t worry if the song isn’t done or if it has no title. Give it something generic with the date in it but sign a coauthor agreement right away.
Finally, copyright registrations act differently. If coauthors are listed on a registration, the Copyright Office (and a judge relying on such registration) will presume that the percentages of ownership are equal. If not, there must be something in writing confirming that to be the case, thus the need for a coauthor agreement.
ASCAP & BMI
Yes. Registering with a performance rights organization (PRO) like ASCAP or BMI does not give the author any of the rights provided by a copyright registration. Registration with a PRO allows the PRO to collect royalties on behalf of its member authors for the public performance of their songs on radio, films, television, and commercials. It can also be a place where those who wish to make a cover recording can find information sufficient to make that cover recording, license samples, obtain/authorize translations, etc.
What To Submit
A US Copyright Registration of a musical composition can be based on a simple set of lyrics with the chords written on it. However, this method may make it difficult to convey all that is going on in the song. The Copyright Office encourages registrations by uploading a digital file onto their server. The most common way to do that is to upload an MP3 file. The recording does not need to be elaborate: a simple cell phone recording is adequate. However, a more advanced recording can capture many different elements of the subject work. Remember, if someone infringes an author’s work, the recording submitted has to be sufficient to demonstrate those distinct elements.
Copyrighting Before Album Release
An author needs to only submit an application for registration before the record release. An author owns the copyright for the composition and sound recording at the moment they are fixed in tangible form. Thus, it would be accurate to reference the typical language on the cover art “Copyright [Author/Artists Name] 2019.”
When To Submit Copyright
The question revolves around whether the musical compositions have been “published” before the album is released. In today’s world, that would include posting them anywhere on the Internet or sending recording copies around to third parties for their review, consumption, etc. If the compositions had not yet been published, the author would use the year of release of the album.
If a song was published earlier, that fact must be reflected on the registration of the underlying composition. Although it may not ultimately be a big deal, the author needs to make sure the composition is registered correctly.
Registering Collection or Single Song
The best practice is to register each song separately, but it is also the most expensive. It is the best practice because if a song is infringed and the author brings an infringement action, the author can seek recovery of the greatest amount of money damages. If a song is registered as part of a compilation (group of songs), the author is faced with a defense in court that the damages for one song must be limited fractionally based on the total number of songs in the compilation.
As a practical matter, many authors register their songs in groups called compilations. A compilation allows an author or identical group of authors to register a number of compositions that share identical characteristics. Those characteristics would be same author(s) and same year of first publication (or all works being unpublished). As long as all of those characteristics are the same, an author can protect, in more of a blanket fashion, a group of compositions. The author does not need a formal title for the compilations, and we often suggest something as simple as, “[Author/Artist Name] Songs 2014.”
*Source: John Bradley of the Bradley Legal Group PA