One of the most commonly used but least understood terms in music publishing is “copyright.” The simplest definition is a form of intellectual property that is granted protections that are enforceable under the law.
However, it gets complicated very quickly. Despite the term being used in the singular, “a musical copyright” is actually a bundle of rights — at least six, in fact — granted to the author of an original creative work that has been fixed in a tangible medium - whether an audio file, a demo CD, or even just lyrics written in a notebook.
The following information explains the basics of copyright as it pertains to music. By the end, you should have a working understanding of what a copyright is and what legal protections it has for you and your work.
What Can Be Copyrighted?
Copyrights protect original works of authorship fixed in any tangible medium of expression. In other words, copyright protects creative works that have been recorded in some way. (We’ll define that more precisely in a moment.)
It should be noted that the “copyright” doesn’t protect physical objects like a CD or lyric sheet; it protects the intellectual property itself, that is, the song as it exists in any form. You can register a copyright as a legal protection for your intellectual property, but you will not receive a physical plaque or certificate.
In order for a work to qualify as copyrightable material, there must be some degree of creativity, no matter how crude, obvious, or humble. That is, the work must be creative in some form. Pre-existing materials, ideas, facts, methodologies, processes or works that are in the public domain are not protected by copyright law. These works may be subject to other forms of legal intellectual property protection — just not copyright protection.
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 onto a CD or as a voice memo, transcribed in sheet music, or by writing lyrics in a notes app. As soon as that is done, the author (the legal term for the creator) now has a copyright in that creative work.
Are we saying that you immediately have a copyright after you write lyrics on a piece of paper or record a song as a WAV file? Yes! You now have what is often called a “common law copyright.” Do you have to do anything else? Technically, no, but as we will discuss in a moment, there are compelling reasons to register your copyright with the U.S. Copyright Office or a local equivalent in your country or territory.
What Rights Do You Have As a Copyright Owner?
The owner of a copyright has the exclusive right to reproduce, sell, distribute, publicly perform, display, and prepare derivative works of the copyrighted work for a certain period of time. As we’ve written elsewhere, “derivative work” has a very specific meaning in this case. It’s worth familiarizing yourself with how you can monetize your music long after it’s been recorded and released.
For most copyrighted works, the exclusive rights mentioned above last for the duration of the owner’s life plus an additional 70 years. In the case of work-for-hire deals (WFH), or those created for a specific purpose and in which the creator forfeited their ownership in exchange for financial compensation, the duration of the copyright is 95 years from the date of publication or 120 years from the date of creation, whichever is shorter.
What Are the Benefits of Registering my Copyright?
As mentioned earlier, once you’ve fixed a piece of intellectual property in a tangible form, you have a common-law copyright. There’s no technical requirement for you to register your song with a Copyright Office for additional protection. That said, there are some powerful incentives for registering a work. The next section refers directly to the benefits of registering your work with the U.S. Copyright Office.
First, a copyright owner cannot sue in federal court for copyright infringement until the work is registered with the USCO.
Second, by registering with the USCO, an author:
Establishes proof of authorship
Documents when the work was created
Alerts potential infringers 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, or who authored the lyrics and 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 with 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. This is 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: Although it’s not strictly necessary, if you want extra legal protection for your intellectual property, you should consider registering your songs with the copyright office. Knowing your rights and what constitutes ownership can help reduce the likelihood that something goes wrong in the future.
Where Does Copyright Protection Come From?
Copyright law in the U.S. dates back to Congress passing 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 rulings.
If you have any general questions about copyrights or music publishing, please reach out to the Songtrust team. We recommend finding a local legal firm for more specific copyright questions, as Songtrust is not legally allowed to provide legal advice or services. Always do your research to make the most informed decisions.
To make sure you’re collecting all of your performance and mechanical publishing royalties that your copyrights are generating worldwide, register with Songtrust today.