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Entertainment Lawyer Q&A By Mick Spence
Music Copyrights: the fundamental building blocks in music business
Music Copyrights: the fundamental building blocks in music business
Many musicians and bands are interested in "getting signed," meaning, securing a record deal. That's a great goal, but shouldn't be the only one being sought by creative musicians. Music publishing is the lesser-known avenue to success in a musical career. Getting signed to a music publishing deal can be many times more lucrative than a recording deal. However, so many of the people I talk with don't seem to know about, or care about, music publishing possibilities. To understand this area of the music business, you need to know a little bit about copyrights.
What do you need to know about music copyrights?
The United States Copyright Act protects original works of authorship once they are fixed in a tangible medium of expression from which they can be perceived, reproduced or otherwise communicated. What exactly does that mean? That means once someone writes down, or records, or some how "fixes" their originally created work onto paper, a tape, a computer program, etcetera, they have a copyright on that work. On the other hand, for example, a song performed, but not recorded or written down, is not protected. This is important, because the creator of that original work is entitled to legal ownership of that creation, and rights that attach to it through copyright laws. Accordingly, creators of musical compositions, lyrics and sound recordings (as well as books, motion pictures, theatrical works, choreography, computer programs, etc.), are granted certain exclusive rights to the works they have created, such as:
The exclusive right to do and/or authorize any of the following acts:
- To reproduce the copyrighted work in copies or recordings (such as records, compact discs or audio cassettes);
- To prepare derivative works based upon the original copyrighted work, such as converting a poem into a song or movie;
- To distribute copies or recordings of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease or lending;
- To perform the copyrighted work publicly, if it is literary, musical, dramatic, choreographed works, and motion pictures or a combination of audiovisual works. (The performance may be live, by broadcast or over loudspeaker in a public place.);
- To exhibit the copyrighted work publicly, if it is literary, musical, dramatic, pictorial, graphic, or sculptural works, including the individual images of a motion picture and other audiovisual works;
- In the case of sound recordings, to perform the work publicly by means of a digital audio transmission.
The five exclusive rights outlined above are granted to the copyright owner(s) for a limited time. The period of protection for works created after 1978 is measured by the life of the author, plus 70 years. If there is more than one author, the term is 70 years after the death of the last surviving author. The protection for a "work made for hire" is 95 years from date of publication or 120 years from creation, whichever comes first. After the expiration of that time, the work falls into the public domain, where anyone can use or copy the work without permission or payment to the former copyright holder(s).
What is a "work for hire"?
A "work for hire" is a work created by an employee within the employee's scope of employment, or a work specially requested from an independent contractor, with a written agreement transferring copyright ownership to the requester. In these cases, the employer is considered the author of work, and therefore the copyright holder.
Can't I just send myself the work in the mail, and not open it, to prove I own the copyright?
First, let's clear up some confusion I always hear from people when discussing copyrights. You own a copyright in a work AT THE VERY MOMENT YOU FIX IT IN A TANGIBLE MEDIUM (i.e. write it down). You do NOT own a copyright if and when you register it with the copyright office. Think of it as buying a car, and then getting it licensed. You own it when you pay the car dealer, not when you pay the government to register you as the owner! Likewise, when the work is created, it's yours. Registering the copyright with the government only helps you prove you own it if you have to (like when someone else infringes one of your exclusive rights, listed above). Copyright registration with the U.S. Copyright Office is not required for protection. However, failure to register a work creates unnecessary proof problems in an infringement action, and precludes collecting certain damages for infringement, such as statutory damages and your attorney's fees while fighting the infringement. Now to answer the above question: you can do whatever you want with your copyright. However, if proper registration through the copyright office will guarantee you certain damages, recovery of attorney's fees, and simplify your burden of proving that you own the work, why wouldn't you do it that way, rather than risk losing all of those benefits to save a couple of bucks?
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© 2001 Mick Spence, Esq.
As originally published in City's Tone June 2001 edition. |
10 South Fifth Street, Suite 700 | Minneapolis, MN 55402
Phone: 612.375.1555 | Fax: 612.375.1511 | E-mail: info@spencelawfirm.com
© Copyright 1999-2007
The Spence Law Firm.
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