Registering Your Copyright

Introduction

This is article #1 in a series of articles on legal issues and the music business. Of course, the usual caveats apply. Remember this column is primarily educational and does not purport to constitute legal advice. Also remember that this is the Internet, and the legal issues discussed here may vary dramatically from state to state, and from one country to another. If you have legal concerns or need legal advice, be sure to consult with an attorney who is licensed to practice in your jurisdiction.

REGISTERING YOUR COPYRIGHT

OK, welcome to the Fine Print. Let’s begin with one of the questions I’m asked most frequently, which goes something like this:

I’ve just written some songs and recorded a demo tape. What should I do to protect (i.e., copyright) my work? How do I go about doing it?

The answer to this question involves a brief overview of United States copyright law, and includes some practical tips on how to register a copyright with the U.S. Copyright Office.

1. WHAT IS A COPYRIGHT?

First, a copyright is an exclusive right owned by the author of a work. A copyright owner can exclude others from reproducing, distributing, publicly performing or displaying their work. A copyright owner can also prevent others from creating a “derivative work” (such as a song using digital samples) based upon the copyrighted work. Except for certain instances permitted under the Copyright Act, violation of one of these exclusive rights may constitute copyright infringement.

2. HOW DO I COPYRIGHT MY WORK?

A song is copyrighted under U.S. law as soon as it is recorded on a “tangible medium.” Consequently, a copyright of your song exists as soon as it is written on a piece of paper, recorded on audiotape or stored in a computer file.

However, even though your song is automatically copyrighted, it is not yet completely protected. To fully protect you work under copyright law, it is necessary to register the copyright with the U.S. Copyright Office.

One common myth is that mailing a copy of your work to yourself gives you a copyright in that work. This is not really true. Mailing a copy to yourself (preferably by certified mail) does help to establish the date the work was created. However, because envelopes are easily steamed open, a judge may be unwilling to accept a mailed copy as proof that a song was written on a certain date.

Instead, prompt registration of your copyright with the U.S. Copyright Office provides the greatest protection and maximizes the remedies you may have against infringers. Prompt registration also helps create a “presumption” that you possess a valid copyright.

3. HOW DO I REGISTER MY COPYRIGHT?

To register a copyright, it is necessary to file the appropriate forms with the U.S. Copyright Office, along with a registration fee (currently $30 per registration form). For most works published in the United States, it is also necessary to “deposit” two copies of the registered work with the Copyright Office, which are then filed with the Library of Congress. According to the Copyright Act, failure to deposit copies of your work when published may result in fines.

Here’s where things become tricky. A recording of your song actually contains two copyrights. One copyright consists of the “Sound Recording” of your composition. A sound recording consists of the actual sounds embodied on your audiotape, whether these include as singing, musical instruments, industrial noises or exotic birdcalls.

Another copyright also exists in the “Musical Work,” or composition, embodied on the Sound Recording. The composition may be purely instrumental, or perhaps include a combination of lyrics and music. A Musical Work may be copyrighted whether it is contained on audiotape or printed out on sheet music. Of course, it is also possible to copyright lyrics separately as a “Literary Work” with the Copyright Office.

The above distinctions are important because they determine which registration form to use when registering your work with the Copyright Office. To register a sound recording, you should use a Form SR. To register a composition, you need a Form PA. A literary work (such as song lyrics) may be registered using a Form TX.

It is possible to use one Form SR to register both a sound recording and underlying musical compositions if the copyright claimant for both works is the same. It is also possible to register several songs using a single registration form where the copyright claimant for each work is the same. For instance, an author could describe the work being registered on Form SR as a “Compilation of Words, Music, Performance and Recording.” However, the better method is to submit a separate registration form for each song. If someone were to later conduct a title search for a particular song that was registered using the above example, your song may not show up on the Copyright Office computer. This could lead to the erroneous conclusion that your song has not been registered.

4. HOW DO I OBTAIN COPYRIGHT REGISTRATION FORMS?

Copyright forms and circulars maybe obtained free of charge by calling the U.S. Copyright Office Hotline at (202) 707-9100 and leaving a message on their voice mail machine. These may also be obtained through the Copyright Office Web site. The Copyright Office also makes available several publications on copyright law. If you don’t know the name of a particular publication, you can try calling the Copyright Office’s prerecorded information line at (202) 707-3000.

5. WHY SHOULD I REGISTER MY COPYRIGHT?

Although a song is copyrighted as soon as it is created and “embodied” in some form, there are several important reasons why your copyright should be registered with the U.S. Copyright Office.

Copyright law permits a copyright owner to collect “actual” damages such as lost income which may be result from an infringement. “Statutory” damages may also be available by statute in the Copyright Act, and they range from $500 to $30,000 per infringing act, or up to $150,000 per infringing act if it is shown that the infringement was “willful.”

If the copyright was NOT registered before the infringement or within three (3) months after the work was “published,” a copyright owner may collect only “actual” damages from an infringer. However, if a copyright is registered before an infringement occurs or within three (3) months of publication, it is possible to obtain “statutory” damages and attorneys’ fees from a copyright infringer.

The availability of statutory damages is extremely important if someone infringes your work. If a song was not registered within 3 months of its “publication” or before the infringement occurs, an attorney may be unwilling to pursue the infringer unless you have sustained extensive monetary damages or unless you are willing to pay an expensive hourly rate for that attorney.

However, if a work has been properly registered, an attorney may be willing to handle your case on a contingency basis. Because registration permits statutory damages of up to $150,000 if a willful infringement is found, it is not always necessary to show you incurred actual damages to collect money from an infringer. Also, because registration enables you to recover attorney fees and costs from an infringer, your attorney will have added incentive to pursue a copyright infringement on your behalf.

6. WHAT IS A COPYRIGHT NOTICE?

Finally, be sure to place a copyright notice on all copies of the copyrighted work you distribute. While copyright notice it is no longer necessary for works published since 1989, it still can provide added protection for your work. A proper copyright notice consists of the following elements:

1) C-in-a Circle (or the word “Copyright” or the abbreviation “Copyr.”
2) The year of first publication
3) The name of the copyright owner

However, note that copyright notice for Sound Recordings differs slightly. The copyright symbol for a Sound Recording is actually the letter “P” (for “Phonorecord”) in a circle, followed by the year of publication and the copyright owner’s name. The Copyright Act does not permit you to spell out “Phonorecord,” so remember that a P-in-a-Circle is necessary here.

Copyright notice should be written in a place that will provide reasonable notice to others, such as the outer sleeve of your CD or cassette. A copyright notice should be placed on all copies of your work, even demos given to friends and acquaintances. This is because the Copyright Act provides some protection to “innocent infringers," i.e., persons who claim they didn’t knowingly infringe the work because of the lack of a copyright notice.

CONCLUSION

Registering your copyright is the best way to protect yourself and your music. You probably don’t need to register every band jam session or low-fi portastudio experiment. However, you should register your copyright if you are shopping a demo tape, receiving radio airplay or if your work is otherwise commercially available.

Alan Korn
Law Office of Alan Korn
1442A Walnut Street PMB 387
Berkeley, CA 94709
Ph: (510) 548-7300
Fax: (510) 284-3750
email: alan [at] alankorn [dot] com
www.alankorn.com