Copyright Basics

Copyright Basics

A Little History

We’ve been seeing that cute little symbol, yes… this one ©, for almost as long as we’ve been able to read. Everyone knows that it signifies that the item is copyrighted, which means someone else owns it. It’s like a sign that says “My property. Don’t mess with it.” But as a member of the indie music world, what do you really need to know about copyright?


Well first of all, you need to know that copyright is extremely important. Your right to control a copyright, and for us music types, that usually means musical compositions, is one of the most powerful and potentially lucrative rights in the music business.
So bear with me for a moment while we do a short history lesson in order to really understand the importance of this fundamental concept. Copyright is what the whole business is built on, and not understanding what it really means would be like a builder beginning construction on a new high rise but not creating a strong foundation. Still, it is surprising how little most musicians know about copyright.


Our ability to hold a copyright comes to us from none other than the United States Constitution which states as follows:


“The Congress shall have the power . . . To promote the progress of science and the useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”


It is from this clause that we get the ability to hold both copyrights and patents. A patent offers protection for inventions, discoveries, processes and things of that like, whereas a copyright protects “authors” in the broadest sense of the word (which includes composers) and their writings, creations or compositions. Sometimes this is confused with trademark, which is more properly thought of as a name, mark or logo under which you do business. Putting aside for the moment a logo and band name, or the name of your label or management company, the music business is, as mentioned before all about copyright.


The Copyright Act of 1976, which really put it all together and forms the basis of our current use and application of intellectual property principles, states that protection is granted for:


“…original works of authorship fixed in a tangible medium of expression...”


This includes the following:


1. Literary works


2. Musical works


3. Dramatic works


4. Pantomime choreographed works


5. Pictorial, graphic and sculptural works


6. Motion picture and other audio visual works


7. Sound recordings


8. Architectural works






Let’s re-read that line above about “…tangible medium of expression…”, because that’s a real important bit of info for musicians. As soon as you record or write down your song in any form, be it CD, cassette (remember those? – don’t laugh, they are still important in developing countries where lots of great music is happening all the time) lead sheet, lyric sheet, notation software, or full blown master recording, your copyright becomes real, i.e. you own it. Congratulations! Speaking of ancient terminology, in the legal parlance of the music business, recordings, including CDs are typically referred to as phonorecords. It’s simply a catchall term for sound recordings of various formats.


So lets say you’ve composed a song in your head, imagined the parts and everything, sung the lyrics to yourself, and yet by some bizarre twist of collective consciousness, someone else records and releases your song before you. Sorry, you lose. No copyright for you. It has to be put down in some form – “a tangible means of expression”.


Owners are granted a number of exclusive rights by section 106 of this act, as well as by a later amendment. They are as follows:


1. The right to reproduce the work


2. The right to create derivative works of the original work


3. The right to sell, lease or rent copies of the work to the public


4. The right to perform the work publicly


5. The right to display the work publicly


6. The right to perform the work publicly by means of digital audio (added in 1995)






There are and will likely be future amendments to the act to further define what is and what is not copyrightable as new cases arise. For example, it was determined that alphabetized lists such as those found in the telephone book are not copyrightable, however lists that may contain a degree of originality or arrangement may well be copyrightable, like David Letterman’s Top Ten Lists.


Alright then, let’s say you’ve got your masterpiece composed and you record it somehow, even if it’s just by recording it on your computer and creating a simple audio file. Now what? Well the law states that you now have the copyright, so why do anything else? Well for openers, if you are going to allow anyone else to hear it, and especially if you are going to distribute it in some way, you should provide notice of the copyright and register your composition with the Copyright Office at the Library of Congress.


As of 1989, it is no longer mandatory to use the copyright notice, which usually includes the copyright symbol, date of first publication, and name or abbreviated name of the author. However, it is still advisable and in common practice to put the public on notice of these details. Also, you don’t necessarily need to register in order to use the notice, as you can register anytime within the life of a copyrighted composition, but it’s a real good idea to register when you are ready to let your creation be heard.


Also, by registering your composition you are afforded the benefit of recouping attorneys’ fees or collecting statutory damages should you take someone to court (and win) for copyright infringement. Also, no legal action for infringement can even be started unless you have your copyright registration in hand, so it makes sense to get it done.


By the way, a copyright does not last forever. It protects the author for the duration of the authors life plus seventy years, or ninety years in the case of a work made for hire, a term which we will discuss later. Additionally, there are some situations called “fair use” under which someone can use your copyrighted material without giving you notice or paying you. Examples of fair use include uses for teaching or scholarship, research, news reporting and a handful of other scenarios. This is why you hear those 10 second clips of popular songs during news programs. The composers are not getting paid for that type of usage. Otherwise, the composer is in charge.


With all this in mind, we turn our attention to this little thing called a Compulsory Mechanical License, which is essentially an anti-monopoly device and the reason why we see so many cover songs of famous compositions. We’ll discuss the details later, but essentially this license offers the public the right to record your song as long as you have recorded the first version yourself, or granted another party the right to do so. Once that has occurred, anyone else can record it. The good news is that you, as a composer, get paid (if everyone is honest) when a recordings of your song by another artist is sold or distributed to the public.


Registering Your Copyright


OK, armed with the above background, one of the best ways to get a clear picture of the copyright concept is to actual look at the form we use to register, so let’s have a look. I’ll take you through the form step by step so you really understand your rights and the proper way to fill it out.


The current form that we will use to register a copyright is called Form CO.


First go to the US Copyright Office website, www.copyright.gov, and download the form and instructions for Form CO. Form CO, an 8 page form available as a fill-in the blanks .pdf document, is the new replacement for the time honored Form PA, a mere 2 pages. I must admit I’m still partial to the form PA, but change is the fundamental law of the universe, so I’ll go with the flow. In truth, the new form takes the place if about a half dozen other forms for everything from literary works to motion picture works, so I guess it’s easier for the folks at the copyright office. OK, I guess it’s not so bad after all.


The instructions are pretty detailed, so be sure to read them several times to make sure you are filling out the form the right way. Even though I’ve filled out dozens of these, at least the PA version, every so often, I still make a careless error and that just delays the process. The good people at the copyright office are pretty sharp and will be only to happy to send it back to you and point out your mistakes.


First of all, before we fill anything out, what exactly do you need to send along with the form? Typically CDs are the medium of choice. Two complete copies are required, and they now request that you use jewel cases (instead of slimline) and pack the media in boxes to ensure they arrive intact. They also accept cassettes, video tapes and DVDs, although these are probably unlikely for musicians.


Also, we will refer to composers as “authors” throughout this section, since that is the generic term used on the copyright forms. You must fill in the form online and make sure it’s complete, as this new system generates barcodes to assist in the filing process. Once you have completed the process, then you can print it out and mail it in with your sample CDs.


Let’s have a look at the main sections of the form:


Page 1 – Work Being Registered


Here’s a good place to screw up, and it’s only the first question!


You should probably be checking the box for Performing Arts Work and not the box for Sound Recording. You want to copyright the work itself, and not necessarily the particular recording that you are submitting. Sound recordings are usually copyrighted by the labels, so if you are a label owner or are self-releasing a CD, you’ll want to fill out a separate copyright form for the recording. We’ll elaborate on this distinction a bit in the next section on Publishing. What you are copyrighting here is the composition itself, that is, the intellectual property that you have created.


The good news is, you can copyright several pieces of music on one form if you give them a title indicating that they are part of a collection or album. This way, you don’t have to pay the $45 fee for every song you ever write. Oh, did I mention there was a fee? Yes there is a $45 fee, but it’s well worth it. Like any business, there are costs involved, and without this little expenditure, you should not be venturing into the business.


If there are previous or alternate titles of the composition, you can enter them in this section as well, along with the year the work was completed. Many think they should put down the current year to make the composition “up to date”, but in the rare case of some sort of infringement lawsuit, you are going to want the year you actually wrote the piece on file. Put down the year that corresponds to the version of the work you are submitting, not an earlier or later year. If the work was already published, you have to note it in this section as well, although in general you’ll want to register a copyright before you publish a piece of music. Publishing is a whole topic (and then some) unto itself, and copyright is fundamental principle on which the publishing industry is built.


The time line can be misleading so let’s look at it further. For example, lets say you wrote a song on your back porch with your acoustic guitar and voice and the song just sat around for a few years. You finally decide to release it and so you record it nicely and that is the recording you want to submit with your copyright registration. You should put down the year that you wrote the song, not the year of the recording, unless the new version has drastically different melody and lyrics. If the original and new versions are substantially different, then you should consider registering two separate songs, or listing one as a derivative work of the other.


Should a copyright case end up in litigation, the song in question is considered in it’s entirety. In other words, lyrics with melody with musical accompaniment. So if you wrote a song for voice and guitar, yet released it as an arrangement for voice, 2 guitars, piano, bass, drums and horns, and that is the recording you sent to the copyright office, it does not mean that someone can record a voice and guitar version of the same song and call it theirs. It’s still your song.


As you can imagine, this all leaves some room for interpretation by our lawyer friends and there is a good deal of gray area, so it’s important to protect yourself as completely and accurately as you can. Remember that George Harrison (The Beatles guy…remember him?...Please?) did get sued for infringement for his song “My Sweet Lord” which has the same melody (although certainly not the same lyrics or underlying music) as the Shirelles song “He’s So Fine”. Most musicians think this was a bogus lawsuit and some folks were just trying to take some money from a celebrity, but it did happen nonetheless. The problem is, given that there are only 7 notes in a key, and a handful of standard chord progressions in pop music, there are bound to be plenty of songs that sound quite alike. But that’s another topic for another day.


So what’s a songwriter to do? Protect yourself as best you can, don’t deliberately copy anything from anybody, and hope that nobody ever drags you into court. I wish a had a completely foolproof answer for you, but we live in a litigious society, so you never know. OK, next section.


Page 2 – Author Information


In this section, you will fill in some minimal personal info and what part of the composition you are responsible for. In our world that can be music, lyrics or both. If you have a coauthor, you have to click on the add additional authors option, and however many authors there are will each own an equal share in the copyright. That does not necessarily mean that they will reap an equal amount of financial reward, but that’s a topic that falls under the publishing umbrella.


Do not fill in the organization name, even if you have a company name of your own. The owner of a copyright can be an organization, or an individual, but not both. If you are a composer who does business under a different name, known as a DBA, then you can enter that info in the appropriate space.


The author’s contribution line may be filled in if necessary, that is if the author’s contribution was a work made for hire or under a pseudonym. If the work is made for hire, that means that the hiring entity, like an employer or someone who has commissioned a work, is the actual owner of the copyright, not the author themselves. In the “continuation of authorship section, you may check whatever boxes apply, typically music and/or lyrics.


Page 3 – Copyright Claimant Information


This is a fairly easy section. Just name and address type stuff. As before, you can fill in either a personal name or an organization name, but not both, and if you do business under an assumed name, you enter that in the appropriate space. If you are acquiring a copyright from someone else, there is a section for that information here as well.


Page 4 – Limitation of Copyright Claim


You can skip this section if you created the work totally from scratch, but if it is based on a previous work or it is a new arrangement of a public domain work, then you need to fill out this section.


Under “material excluded from this claim” you can check the boxes next to the type of material that you did not write. For example, lets say you do a composition that uses an old public domain poem for lyrics. Then you should check “text” so as not to claim that you wrote the original poem. If you are doing an arrangement of a traditional melody, then check “music” since you can’t claim to have written the original melody.


If an older version of the work you are registering has been previously registered, then you can enter that info as well. If not, you can go to the next section and fill in the “new Material Included in this Claim” If this is an arrangement of a public domain work, then you should check the appropriate boxes for lyrics and/or music, and add “new arrangement” in the “other” line.


If you are registering a compilation, that means it is a new work created from compiling previously existing work in a form that constitutes a new work in its own right, then you can check that box.


Page 5 – Rights and Permissions


This is where you enter the information for the person who should be contacted in order to obtain permission to use the work. In most cases, this is the same info as you entered on Page 3 as the first claimant. If so, just check the box and the form will self populate itself and that info will be made a part of the public record and wll be available for all to see online.


Page 6 – Correspondence Contact


This section may also be copied from the first claimant section simply by checking a box. If someone else handles your correspondence, then enter that info here. In general, if you can, it’s good to keep copyrights close to home, as it may be your single most powerful asset in the music business.


Page 7 – Mail Certificate To


The Copyright office generates an official looking certificate that proves you own the copyright. The information is always on file at the Copyright office, but you want to have your own copy as well, and if it does not arrive in a reasonable amount of time, then you should get on the phone and make an inquiry. As before, the information can be self populated simply by checking a box.


Page 8 – Certification


Congratulations! This is the last page! Once you print the finished form, sign it and print your name and date. If you have a deposit account with the copyright office (which you may want to do if you are constantly registering new copyrights) ten the $45 fee can be deducted from the account. Similarly, if you do a lot of copyrights, you may want to create your own tracking number system, which you can enter here.


Typically this does not apply to musicians. Since you can easily copyright up to 50 songs at once, you probably won’t need an account. That’s more appropriate for producers of continuously new material, like daily or weekly TV shows or broadcasts, where new material is constantly being created and a copy of the work obviously can not be submitted until it is created. Even in that case, there are provisions for Serial Works, so if you create anything like that, you should consult the copyright office directly for proper procedures.


So that’s the story of Form CO. Studying the form and it’s instructions is a good overview of what copyright is all about. It raises plenty of “what if…” type questions and hopefully will spur you on to check out more information.


Now once you have a copyright it’s time to exploit it, which is well covered in the section on “licensing and other income streams” as well as throughout this course. But lets have a quick look here. First of all, remember that in the language of copyright, exploit is not a dirty word. It simply means you are attempting to extract value from the intellectual property that you have created. That can mean anything from licensing the piece for use in a film, getting a big name artist to record it and hopefully have a big hit, get airplay for your compositions and thus performance royalties from ASCAP or BMI, or sell copies of your song on CDs, downloads or other formats.


All good stuff. All things that ideally, you should make some money from.