Guest Column, Resource, Recommended Reading, Industry Insight

Copyright 101

Seth L. Berman
Seth L. Berman on Jul 26, 2018

What exactly is a copyright? The simplest definition is it is a form of intellectual property protection enforceable under the law. Despite the term being used in the singular, “a copyright” is actually a bundle of rights granted to an author of an original creative work that has been fixed in a tangible medium, such as song recorded on a CD or audio file.

What Do Copyrights Protect?

Copyrights protect original works of authorship fixed in any tangible medium of expression. That is, copyright only protects the expression of creative works that are perceptible and recorded. Copyrights do not protect things like pre-existing materials, ideas, facts, methodologies, processes or works in the public domain. These things may be subject to other forms of legal intellectual property protection, but not copyright protection.

In order to obtain a copyright in a work there must be some degree of creativity, no matter how crude, obvious, or humble. That is, the work must be creative in some form.

When Does Copyright Protection Begin?

Copyright protection begins immediately after a work of sufficient originality is fixed in a tangible medium perceivable by human or machine, such as recorded on a CD or transcribed in sheet music. As soon as that is done, the author (the legal term for the creator) now has a copyright in that creative work.

Are you saying that I immediately have a copyright after I write lyrics on a piece of paper or record a song on a .wav file? Yes! You now have what is often called a “common law copyright”. Don’t I have to do anything else? Technically no, but as we will discuss below, there are very compelling reasons to register your copyright with U.S. Copyright Office.

What Rights Does a Copyright Provide?

A copyright affords the owner the exclusive right to reproduce, sell, distribute, publicly perform, display, and prepare derivative works of the copyrighted work for a certain period of time.  

How Long Do Copyrights Last?

For most copyrighted works, these exclusive rights last for the duration of the owner’s life plus an additional 70 years. In the case of works-for-hire (WFH), the duration of the copyright is 95 years from the date of publication or 120 years from the date of creation, whichever is shorter.

Where Does Copyright Protection Come From?

Copyright law dates back to 1790 in the United States, when Congress passed the Copyright Act of 1790. In response to contemporary technological developments, the Act went through a general revision in 1909 and a major overhaul in 1976. The Copyright Act of 1976 and its subsequent amendments remain the primary authority in the United States regarding federal copyright law.

Don’t I Have To Register My Song Somewhere?

Although not required, registering a work with the United States Copyright Office (“USCO”) has powerful incentives.

First, a copyright owner cannot sue in federal court for copyright infringement until the work is registered.

Second, by registering with the USCO, an author establishes proof of authorship, documents when the work was created, and puts potential infringers on notice of the work’s existence. Even if a songwriter has possession of the original piece of paper containing the lyrics to a song they wrote or a master recording, it will be difficult to prove when the song was written, who authored the lyrics or recorded the master. It would then be very difficult, if not impossible, for the copyright owner to enforce their property rights.  

Third, if a work is not registered in the USCO prior to an infringement, even if the songwriter were able to successfully plead his or her case, damages would be limited to what the songwriter actually lost combined with any of the infringer’s profits attributable to the infringement. These are called actual damages.

Copyright law affords those who register their work with the USCO the chance to obtain pre-determined statutory damages and legal fees, which may be significant. If a songwriter would like to obtain statutory damages, which range up to $150,000, and/or legal fees, he or she must first register their work with the USCO. In a nutshell - if you want extra protection, although not necessary, you have the option to register your song with the USCO. Knowing your rights and what constitutes ownership can help reduce the likelihood that something goes wrong in the future.

If you have any questions about copyrights or music publishing in general, reach out to our team at contact@songtrust.com. Always do your research to make the most informed decisions. To make sure you’re collecting all of your performance and mechanical publishing royalties worldwide, register with Songtrust today!

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