Copyrights 101

What is a Copyright?

A copyright provides the owner with the exclusive right to a particular work for a limited duration of time. For a work to be “copyrightable,” it must be original and fixed in tangible form, such as a sound recording recorded (affixed to) on a CD or a literary work printed (affixed to) on paper. There are many copyrightable works; some include original literary works, dramatic works, choreography, musical works, audio-visual works and other graphic artistic works. Some of these include poetry, novels, movies, songs, computer software, dance choreography, fine art, comics, sculptural works, and architectural works. This means that a band logo, album cover art, photographers and music videos could all potentially be protected.

Copyright law does not protect facts, ideas, systems, or methods of operation. A copyright also does not protect song titles, band names, or slogans. This means an artist cannot copyright their band name or their song titles. Instead, an individual may apply for trademark protection in a particular artist, band or song name. The basics of trademark protection will be covered in a separate article.

What are the Copyrights in Music?

Music is unique in that every track has two copyrights. One of these is a copyright in the song, i.e. the musical composition, which consists of the lyrics and underlying music (beat, instrumental). The other is a copyright in the sound recording or “master recording” itself. For example, “All Along The Watchtower” was originally written and composed by Bob Dylan. It has been subsequently performed and “covered” by several artists, including Jimi Hendrix. In this situation, the copyright in the underlying musical composition (the lyrics and musical arrangement) is owned by Bob Dylan (or his Publishing Company); while, the copyright in a particular sound recording, such as the Jimi Hendrix version of this track, is owned by Jimi Hendrix (or his record label).

What does a Copyright Do?

A copyright owner is provided with five exclusive rights in their created work. The owner, as well as authorized third-parties, have the right to: (1) reproduce the work, (i.e., mechanical reproduction of the music for CDs, downloads, and vinyl); (2) distribute the work (i.e., stream or otherwise make the music publicly available); (3) prepare derivative works; (4) publicly perform the work (i.e., in a concert or on the radio); and, (5) publicly display the work. This means that the owner has the sole and exclusive right to publicly distribute copies of the work by sale, rental, or lease and to publicly perform or display the work, such as selling copies of a novel or publicly playing a musical recording at a restaurant.

For instance, the exclusive right to reproduce a work prevents a fan that purchased an artist’s CD from creating and distribution copies of it to others. In addition, the right to authorize or prepare derivative works provides a copyright owner with the right to produce or permit another party to create a remix (a derivative work) of an original protected song because the remix would be considered a new arrangement of the original work.

Additionally, in order to make records, downloads, tapes, and CDs, a party requires a mechanical license from the party who owns the copyright in the underlying musical composition. Until the first initial public release of a musical composition, the songwriter and publisher have complete control over issuing licenses. However, after this first release, anyone else can create their version of the song (a “cover” track) by paying statutory fees and obtaining a compulsory mechanical license.

A “compulsory license” is one that cannot be refused by the songwriter (or publisher), i.e., it does not require the songwriter’s permission for you to record his song. In the United States, The Harry Fox Agency is the foremost mechanical rights agency. It administers and issues compulsory licenses and collects and distributes the mechanical royalty license fees to the appropriate parties.

Do You Need A Copyright Notice?

Many CDs, DVDs, magazines, web pages, or other graphic works contain a copyright notice containing the © symbol, together with a name and the year (e.g., © 2018, Justin M. Jacobson). The name refers to the copyright owner, and the year refers to the year the work was created. In the past, a protected work had to be distributed to the public with copyright notice before an author could claim copyright protection. However, this is no longer the case as a creator receives protection as soon as the the work is “fixed,” (written or recorded in some form).

Who Owns a Copyright and For How Long?

Ownership of a copyright belongs to the “author” of the work, who is typically the original creator. For all works created on or after January 1, 1978, copyright protection lasts for the life of the author plus seventy years after the author’s death. This permits the owner’s heirs to monetize the works in addition to the original owner.

A work created by two or more individuals, where they intend to merge or otherwise mesh their works together at time of creation of the work is considered a joint-work. This means that the joint-creation must be prepared “with the intention” that the different creator’s contributions will be merged “into inseparable or interdependent parts of a unitary whole” with each author contributing material that “could have been independently copyrighted.”

However, each author’s contributions to the final work need not be equal and the authors do not need to be in the same physical area or create the work at the same time (17 U.S.C. §§ 101, 201(a)). The length of a copyright for a “joint work” is 70 years after the last surviving author’s death.

Another related copyright concept is the “work for hire” doctrine. This means that an individual is commissioned by a third party, an individual or corporation, to create a specific work for the third party. This third party is then the owner of the work created by another (17 U.S.C. § 201(b)).

For a work to be considered a “work for hire,” the copyrighted work must be prepared by an employee within the scope of his or her employment for their employer (17 U.S.C. § 101). While this may seem straight forward, an analysis of who is considered an “employee” and whether a work was created “within the scope” of the employee’s employment, are determined on a case by case basis.

In addition, a work may also be considered a “work for hire” if a “work [is] specifically ordered or commission for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas” as long as “the parties agree in writing that the work is a work made for hire” (17 U.S.C. § 101). For works made for hire and anonymous and pseudonymous works, the duration of copyright is 95 years from first publication of the work or 120 years from creation, whichever is shorter.

How Do I Copyright A Song?

Although the Berne Convention, which the United States is a signatory to, creates a “universal copyright” or copyright upon creation and publication of a work, the work is not “registered” until it has, in fact, been registered with the U.S. Copyright Office. This means that all of the benefits of copyright ownership are not available in America until the Copyright has been registered.

Registering a copyright is as easy as preparing and submitting an application to the United States Copyright Office with the appropriate filing fee and copies of the copyrighted material. Once the work is registered and the certification is issued, the benefits of the registration begin immediately and are retroactive to the initial filing date.

A formal registration of the creative materials with the U.S. Copyright Office within three months of public release provides additional, valuable benefits to the owner of the work. Some of these benefits include that the work now becomes a matter of public record and is available for search within the U.S. Copyright Office and the Library of Congress. A work must also be registered in order to bring a copyright infringement lawsuit (17 U.S.C. § 411(a)).

What is Copyright Infringement?

If a copyright owner believes that one of their protected works has been infringed upon by another, this other party could potentially be liable for copyright infringement. Copyright infringement is shown by the owner proving ownership of a valid copyright in the allegedly infringed work and an actionable copying by the infringing party of the work’s original and essential elements.

Ownership of work is generally demonstrated by the presentation of a validly issued copyright certificate from the U.S. Copyright Office or some other documentation proving that the party owns the work at issue. “Copying” of a work is typically supported either by direct or indirect evidence. Since direct evidence showing proof of copying is rare, a copyright owner must instead rely on indirect evidence to proof that the infringing party had access to the allegedly infringed work and that there are “probative similarities” between the original work and the allegedly infringing work. A more extensive discussion of the copyright infringement is outside the scope of this text.

If a copyright owner’s work is found to be infringed upon, the harmed party has a variety of remedies available to them. They can obtain injunctive relief to prevent the continued infringement by the party, seizure and impoundment of the infringing items as well as recover any actual damages and lost profits suffered by the non-infringing party (17 U.S.C. §§ 501, 503). Also, if the owner has filed for registration prior to the infringement or within three months of the original publication date of the work, the author may be entitled to recover actual damages incurred, statutory damages as well as attorney’s fees. These attorney’s fees can even exceed the actual damages incurred by the copyright owner.

What are Defenses to Copyright Infringement?

There are a variety of defenses to copyright infringement. One defense is that the subsequent use is a “fair use” and does not infringe any of the copyright owner’s exclusive rights. Such exempted “fair uses” may include ones for educational purposes, for comment or criticism on a particular work, for news reporting on a work, and for parody of an existing work.

This Survival Guide is not intended as legal advice, as an attorney specializing in the field should be consulted.

By Justin Jacobson, Esq.