What is a Copyright?
According to 17 USC 102(a): Copyrights exist to protect an author’s original work. This original work must be in a “fixed tangible medium of expression.” Whoa, so what does that mean? Well, basically anything an author, or the creator of the work, puts onto paper, records via audio or video, or captures in some other format beyond just their thoughts.
What can I copyright?
Section 17 USC 102(a)(1)-(8) states that the following works of authorship can qualify for copyright protection:
(1) literary works;
(2) musical works, including any accompanying words;
(3) dramatic works, including any accompanying music;
(4) pantomimes and choreographic works;
(5) pictorial, graphic, and sculptural works;
(6) motion pictures and other audiovisual works;
(7) sound recordings; and
(8) architectural works.
How long does my copyright last?
17 U.S.C. 301-304 provides time frames for copyrights. US Copyrights last for the entirety of the author’s life plus 70 years after their death. If there are multiple authors, the period runs when the last author dies. Once a copyright expires, it becomes “public domain” meaning that anyone can use the copyrighted material without paying or getting permission to do so.
How does a copyright apply to my song?
This is where a lot of artists and writers get confused. Anytime a song is created and recorded, there are 2 copyrights generated from the one song. How? Well there is the musical work or the composition and the sound recording or the song itself. (see 17 U.S.C. 102(a)(2); 17 U.S.C. 102(a)(7). In essence, a sound recording is how a song sounds while the composition is the written words or music or the combination of both. Controlling the sound recording copyright is what enables music labels to reproduce the song, sell it and make money from the song.
I heard that as soon as I record my song or write down my story/lyrics or paint my picture, that I have created a copyright. Is this true?
Technically and according to 17 U.S.C. 101, “A work is ‘created’ when it is fixed in a copy or phonorecord for the first time…” thus as soon as you put the work into a tangible form (or recording) you have created a copyright. However, legally you are limited in what you can claim if you have not registered your work with the US Copyright offices.
Why Should I register my song/book/copyright with the copyright agency?
You can only sue someone for copyright infringement (using your work without your permission) if your copyright is registered with the Copyright office. You must either (1) register your work within three -months of the publication of the work or (2) prior to an infringement taking place. You can still collect actual profits and damages (under section 412) but if you do not register as stated previously, then you will be limited in your ability to collect statutory damages and attorney’s fees. (see examples, cases and further discussion of statutory damage calculation in this article posted by the American Bar Association). Registering your work also enables you to collect mechanical royalties (discussed in detail in my previous blog post here).
How do I register my copyright?
First, as mentioned before, you must put your creation into a tangible format (record it, write it down, etc.). Create an account at Copyright.gov, fill out the forms associated with your copyright (for musicians, form PA for compositions or SR for sound recordings), and pay the $55 online fee (or $85 to send in hard copies of your works). You can copyright an entire album or each track from that album individually and you can copyright an entire collection of works at the same time as well as long as the works are previously unpublished, by the same author or published works in the same unit of publication owned by the same copyright claimant.
What rights come along with my copyright?
Under 17 U.S.C. 106, US Copyright law grants you six exclusive rights: (1) right to reproduce the work; (2) prepare derivative works; (3) distribute copies of the work or transfer ownership, lease the work; (4) perform the work publicly; (5) display the work publicly; and (6) perform the work publicly via digital audio transmissions.
What happens if there are more than one author? How does sampling work with copyrighted music? What is a work made for hire and how does that influence a copyright? I will answer all these questions and more in part II of Copyrights in my next blog post.
Jason C. Bost, Sr., Esq., MBA is an author, music industry veteran and the managing partner for the New York Offices of the Law Firm of Patel, Soltis & Cardenas LLC. Feel free to email any questions for Mr. Bost or his staff at firstname.lastname@example.org or give him a call to set up a consultation regarding your specific legal or business situation at 973-200-1111.