Basic Copyright

What is copyright?
Copyright is a form of protection grounded in the U.S. Constitution and granted by law for original works of authorship fixed in a tangible medium of expression. Copyright covers both published and unpublished works.

  • Allows you to negotiate your right to sell or lease your works.
  • Keeps others from stealing or using your work without permission.

What does copyright protect?
Copyright, a form of intellectual property law, protects original works of authorship including literary, dramatic, musical, and artistic works, such as poetry, novels, movies, songs, computer software, and architecture.

Copyright does not protect facts, ideas, systems, or methods of operation, although it may protect the way these things are expressed.

  • Tablature is not protected under copyright laws (method of operation) but can be as a collection of instructions (Pop Music Book of Guitar Tabs by John Q Smith)

How is a copyright different from a patent or a trademark?
Copyright protects original works of authorship, while a patent protects inventions or discoveries. Ideas and discoveries are not protected by the copyright law, although the way in which they are expressed may be. A trademark protects words, phrases, symbols, or designs identifying the source of the goods or services of one party and distinguishing them from those of others.

  • The song, story or poem entitled “Nuke the Whales” is eligible for copyright. The phrase “Nuke the Whales” is not but can be trademarked. The idea for a tee shirt “Nuke the Whales” cannot be copyrighted, but a specific “Nuke the Whales” tee shirt design can be trademarked. A “Nuke the Whales device that actually allows you to nuke whales can be patented.
  • “got milk” is a registered trademark, but other “got…” campaigns (got joe, got land, got hair), while similar are not trademark or copyright infringement.
  • Michael Buffer has secured a trademark for his phrase “Let’s get ready to ruuuuummmmmmmble…..” and almost every variation of that phrase. The licensing is currently worth 400 million dollars and can be used for a minimum $25,000.00 a pop. We are able to use the phrase here under the “fair use” act which allows me to quote from media sources about his uncanny success with the phrase.

When is my work protected?
Your work is under copyright protection the moment it is created and fixed in a tangible form that it is perceptible either directly or with the aid of a machine or device.

  • I just wrote this song while riding on my motorcycle.-No copyright
  • I played this new song for my girlfriend.-No copyright.
  • I wrote the lyrics down for this song.-Copyright exists as an original work of poetry.
  • I put the song down as sheet music-Copyright exists.
  • I recorded the song into my computer, digital recorder, on video, etc.-Copyright exists.

Do I have to register with your office to be protected?
No. In general, registration is voluntary. Copyright exists from the moment the work is created. You will have to register, however, if you wish to negotiate the sale or lease of your work or to bring a lawsuit for infringement of a U.S. work. First one to the copyright office wins.

  • When there is a dispute, how are you going to prove you created the song, story, etc.?

Why should I register my work if copyright protection is automatic?
Registration is recommended for a number of reasons. Many choose to register their works because they wish to have the facts of their copyright on the public record and have a certificate of registration. Registered works may be eligible for statutory damages and attorney’s fees in successful litigation. If registration occurs within 5 years of publication, it is considered prima facie evidence in a court of law. See Circular 1, Copyright Basics, section “Copyright Registration” and Circular 38bHighlights of Copyright Amendments Contained in the Uruguay Round Agreements Act (URAA), on non-U.S. works.

  • Saves you money in a lawsuit. Legal fees begin at about $200.00/hr. Add into that missed work and other expenses and things can get costly. Copyright registration is $35.00. It can stop a challenge to your lawsuit cold.
  • No one will consider buying or licensing your work without a copyright certificate.
  • Here’s an example: The “Cops” TV theme was leased to the production company for the run of the program for $2500.00. Cops is now in its 30th year. (Fortunately for the composers of the theme, the producers later did the right thing and re-negotiated the contract to make equitable payments to the authors.)

What is a poor man’s copyright?
The practice of sending a copy of your own work to yourself via certified mail is sometimes called a “poor man’s copyright.” There is no provision in the copyright law regarding any such type of protection, and it is not a substitute for registration. It only proves you mailed something to yourself.

Is my copyright good in other countries?
The United States has copyright relations with most countries throughout the world, and as a result of these agreements, we honor each other’s citizens’ copyrights. However, the United States does not have such copyright relationships with every country. There is a listing of countries and the nature of their copyright relations with the United States, on the copyright.gov website. Your best bet is to sign up with a performance rights organization (PRO).

  • PROs include ASCAP, BMI & SESAC and keep track of airplay, sales, etc. worldwide.

Copyright Infringement

Copyright infringement occurs when one of a copyright owner’s exclusive rights is violated. A copyright is violated when someone copies, distributes, performs or displays all or part of a copyright work without the permission of the copyright owner. A copyright in a musical work may be infringed through the sale of bootleg recordings, by the use of digital “samples” or the use of a musical work in a video or motion picture without permission. (Home recording permits consumers to make home recordings of prerecorded music for personal or noncommercial uses).

Copyright infringement is subject to civil sanctions of up to $30,000 per infringing act, or up to $150,000 per each willful infringement. Because copyright infringement is a “strict liability” violation, it is possible to be liable even if you had no knowledge that an infringement occurred. Infringers may also be subject to criminal prosecution if the infringement is found to be “willful” and for purposes of commercial advantage or private financial gain.

The statute of limitations for copyright infringement is three years for both civil and criminal lawsuits. This means that if somebody infringes your copyright, you must bring a lawsuit within three years of the infringing act. If your bring a suit more than three years after the infringement began, you may only be permitted to recover three years’ worth of damages.

To establish copyright infringement in a court of law, a copyright owner must establish proof copyright ownership and proof of copying. Proof of copying may be established either by direct evidence of copying (i.e., an admission) or by indirect evidence showing 1) access to the original work; and 2) “substantial similarity” between the original and allegedly infringing work. Courts will not find copyright infringement if two people independently come up with the same or a “substantially similar” work. Also, the less original a copyrighted work is, the less protection it may be entitled to under copyright law.

 How does one song “infringe” another?

If two works are strikingly similar, some courts may even infer that a defendant had access to the copyrighted work. Whether a work infringes another usually turns on the issue of substantial similarity. In the case of music, courts have ruled that infringement may occur where the “whole meritorious part of the song” is incorporated into another song, without any substantial alteration. One of the more famous U.S music infringement cases involved ex-Beatle George Harrison, who was found by a jury to have “unconsciously” copied the Shirelle’s composition “He’s So Fine” in his 1971 hit “My Sweet Lord.” Harrison’s hit was found to be strikingly similar to the Shirelle’s song. It is possible to infringe upon another song if only just a few notes are “borrowed.” Because the most memorable part of a song (the hook) may be quite brief, infringement of a musical composition may be found even where only a small portion of a song was copied. The most current cases include the Marvin Gaye estate vs. Pharelle Williams & Robin Thicke. The Gaye family was awarded 7.3 million dollars in damages, primarily because Pharelle admitted that he has used Marvin Gaye’s music as an inspiration.

Is it okay to use a small piece of somebody else’s music in my song?

Only if you first obtain permission from the copyright owner. Obtaining permission first is the best (though not always the easiest or cheapest) solution. There is no simple rule concerning how much of a work may be taken before it rises to the level of infringement. The more a work is copied, the easier it is to show substantial similarity. Ultimately the test for infringement turns on the issue of quality, rather than quantity. For instance, in determining whether one song infringes on another, it is common for courts to look to whether the “heart” of the song was taken. The heart of a song may be a memorable melody, or an identifiable 2-chord guitar riff or just a few words taken from the chorus. There is NO truth to the rumor that sampling less than 4 bars is OK.

What does all this mean in the real world?

It is hard to apply copyright infringement analysis to popular music because almost all popular compositions bear some similarity to prior works. Pop songwriters frequently pay tribute to their peers and predecessors making it difficult to determine exactly which elements in any given pop song are original. Also, most popular music derives from a variety of musical traditions. Because digital samplers can appropriate infinitesimally small “bits” of information, determining what constitutes an infringing use may prove extremely difficult.

It takes very little copying to infringe upon a copyrighted work. This is especially significant in an age when everybody can now afford to sample and manipulate pre-existing copyrighted material. Copyright law can be overly protective of artist’s rights at times, but that’s the point of copyright. Copyright law may be ill-equipped at dealing with our current digital age, but nevertheless it is the law. Fortunately, copyright law also permits the limited use of copyrighted material in specific instances.

Social media and your rights.

When you click accept on the Terms of Agreement for most social media sites,(Facebook, Twitter, Instagram, YouTube, Google+, LinkedIn, Pinterest, Tumbler, Vine, Snapchat, etc.) you agree to allow those sites to use your intellectual property, photos, music, lyrics, video, or image to promote their site at no cost. If you post a video that goes viral, you may not be compensated by the social media site and in some cases, they may have the right to lease your intellectual property to others.

Sources: Office of US Copyright-Copyright.gov; CDbaby.com/about, Facebook Terms, Twitter, ASCAP, BMI, SESAC; Pandora; I-Tunes; SoundExchange.com, Createspace.com