Questions and answers about important information for musicians and copyright, how safe is your original work?

One of our readers has asked the following question:

A musician obtains copyright in a sound recording (music and lyrics) when it is placed on a tangible medium and includes the phrase “copyright/authors/name/date created/All rights reserved.

Copyright registration does not give you a “copyright” which carries more legality than the first scenario, EXCEPT that registration allows you to sue potential infringers and claim punitive damages, not just actual damages.

Registration does not automatically give you copyright. How?

Answer:

Copyright inures to the benefit of the author, absent a license, assignment, or work-for-hire agreement that may grant some or all of the package of rights associated with copyright to another entity. It is not necessary to mark the work as copyrighted and rights are not lost if the work is not marked, although it is good practice to do so.

Copyright registration does not give you copyright, the author of a work is copyrighted as soon as the work is placed on a tangible medium, eg written, recorded, performed, etc. You cannot sue in federal court (there is no cause of action in state court for copyright infringement) for copyright infringement without having obtained a copyright registration or applied for registration and has been denied .

Also, if copyright registration is filed within 90 days of the work’s publication, it is possible to claim statutory damages in an infringement action. This can be extremely important as damages may be difficult to prove, or there may be no monetary damages as a result of the violation.

• For example, if one becomes aware of infringing activity and initiates legal action before the copied work is published or offered for sale, monetary damages may be non-existent.

Recognizing this, Congress made a provision in the copyright statute for statutory damages that allows an infringed party to elect such damages when proving actual harm may be difficult or impossible.

Consequently, early registration can be very valuable. It is also possible to obtain separate copyrights for lyrics and music.

One of our readers also asked this question:

Can you address the issue of non-exclusive music licensing agreements where sound recordings are licensed to multiple companies and each company requires that the title of the song be changed in some way so that the licensing company license re-register the song as a different recording claiming the original authors along with the licensing company now own the copyright.

• Example, a band has 12 songs licensed to 6 different licensing companies resulting in the original copyrights of the authors and 6 different registrations from the licensing companies that have re-titled the songs.

As I’m sure you know, this is a very common tactic and artists who refuse to use a lawyer to negotiate contracts just agree and sign as long as they “get their music out”.

Answer:

As an initial matter, it is important to have any license agreement reviewed by an experienced attorney in the appropriate field.

In general, an author can only obtain a single copyright for a work. If someone else independently authored the same or very similar work, then that author would also be entitled to a copyright. Infringement would be governed by the author’s work copied by the accused infringer.

In order for another valid copyright registration to be issued, the original work must be modified sufficiently so that sufficient “authorship originality” is incorporated into the work. Simply changing the title would be insufficient. One can license one’s copyright on a non-exclusive basis to whomever the copyright owner wishes and as many times as the owner wishes.

The copyright requested by the licensing company would be specific to the version of the song recorded or to the performance of a particular artist. One must ensure that the license is specific enough to identify acceptable uses and changes and also that all copyright owners are signatories to the license.

Recently, there have been lawsuits involving rap artists rapping over an old tune. If they don’t have permission to use the old tune from the copyright owner, then they are infringing.