Basic US Copyright Law Q&A and other stuff you really need to know

[AfaraWayland]

Hi all,

I'd like to start this thread as a basic Q&A session for legal topics in the recording industry, namely current US Copyright Law.

As a musician or audio engineer/producer, you need to be up on US Copyright Law.

If you are creating music, you need to know what your rights are, as a creator, and what protection you have for your intellectual property.

Please ask a question to kick this thread off, perhaps the best place to start is defining copyright.

**as a disclaimer, I'm not an attorney.

I do have training and knowledge in the area of US copyright law.

I highly suggest contacting a legitimate attorney for all your legal counsel needs.

that said, lets begin.

[MR.BYTCH KILLA]

Originally Posted by AfaraWayland

Hi all,

I'd like to start this thread as a basic Q&A session for legal topics in the recording industry, namely current US Copyright Law.

As a musician or audio engineer/producer, you need to be up on US Copyright Law.

If you are creating music, you need to know what your rights are, as a creator, and what protection you have for your intellectual property.

Please ask a question to kick this thread off, perhaps the best place to start is defining copyright.

**as a disclaimer, I'm not an attorney.

I do have training and knowledge in the area of US copyright law.

I highly suggest contacting a legitimate attorney for all your legal counsel needs.

that said, lets begin.

What up Are Far AwwayLand I dont think I ever repied to one of yo post but I have heard yo name throughout the site.You seem to Know Yo Shyt Too and ill i do is respect that because im here to learn not harm.

Can I mail my songz back to me for now until I can afford to do it the legit way.I know that they got be on file with the U.S. when it comes to court action.But I thought that I could may use the cheapest option for them bite masters on the streetz in my surroundings.

I do plan to file them with the U.S. one song at a time when I can afford it

Do u have the address to where I mailed them to?I got one online already and just wanna see what u got.The one I got is the U.S. library Of Cogress fuck somthing like that.....Let me Know Something.....

[AfaraWayland]

Can I mail my songz back to me for now until I can afford to do it the legit way.I know that they got be on file with the U.S. when it comes to court action.But I thought that I could may use the cheapest option for them bite masters on the streetz in my surroundings.

This is what most call the "poor-man's-copyright." For those of you not familiar with the phrase, for years this rumor has been circulated as a means to present evidence of copyright without gov. registration/ as a way to avoid the copyright office fee for processing a new registration.

The idea is that a person sends their own material to themself through certified US mail. Through the process the package receives a time and date stamp from the post office. The sender receives the package and leaves the package "unopened." Here is where the presumed 'proof of date/proof of ownership before date' poor man's copyright is born.

**A big part of the 'burden of proof' in copyright cases is to prove the originality of the work and present evidence (in disputes) of when exactly a work was created.

The sender assumes that by obtaining an un-opened copy of his original work that has been sent as certified mail, he has acheived some level of what the law calls "Prima Facie Evidence."

Unfortunately

According to the entertainment lawyer and professor I spoke with about this issue: "a poor-man's copyright will NOT hold up in court."

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more on copyright registration coming...

[AfaraWayland]

RE: Copyright Registration vs. Poor-Man's Copyright (PMC)

------

Considering the fact that PMC does not hold up in court (nor is it recognized by the US Copyright Office,) and that the method of sending material (certified) through the US postal service can cost a considerable amount, it is better to officially register your material through the US Copyright Office.

A person would save a truck load of time and frustration, not to mention money spent on legal fees/court costs involved in arguing a non-registered yet PMC'd work in court, by simply using official government registration procedures.

The current fee for registrating a work is $45.00. A registrant is allowed to register a small collection of unpublished works as one work provided that they meet the requirements listed here: http://www.copyright.gov/circs/circ56.html#unpublished

This would provide for official registration for multiple, unpublished works as a single work (in essence, an album or collection of works) IF all of the works have the same author(s) or owner(s), and only require a single registration fee of $45.00.

Instructions/forms for registering Sound Recordings with the US Copyright Office can be found here: http://www.copyright.gov/register/sound.html

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*If a collection of works is to be registered as a single work, the author or authors/owner or owners MUST BE THE SAME for all of the works in the collection.

[AfaraWayland]

The exact words are found here:

What is a Copyright

Courtesy of the Federal Government:

A copyright is a right extended to the author of an original work to-

1. To reproduce the work in copies or phonorecords;

2. To prepare derivative works based upon the work;

3. To distribute copies or phonorecords of the work to the public by sale or other transfer of ownership, or by rental, lease, or lending;

4. To perform the work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works;

5. To display the work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work; and

6. In the case of sound recordings*, to perform the work publicly by means of a digital audio transmission.

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The next article of confusion is when does a copyright/copyright protection exist?

[AfaraWayland]

A large amount of confusion exists in a portion of the industry over this one...

A copyright and Federal copyright protection applies at the first moment when an original work is transfixed in a "Tangible Medium of Expression."

[T.M.o.E = paper, CD, analog tape, even...hard drive!]

That's it. Registration not required.

The Federal Gov. will protect the owner from copyright infringement the moment the work is transfixed, provided that the owner prove authorship and originality, and provided the work complies with the language of the US Copyright act.

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As, said registration is NOT required. However...it may be very beneficial...

Why should I register my work if copyright protection is automatic?

Registration is recommended for a number of reasons. Many choose to register their works because they wish to have the facts of their copyright on the public record and have a certificate of registration. Registered works may be eligible for statutory damages and attorney's fees in successful litigation. Finally, if registration occurs within 5 years of publication, it is considered prima facie evidence in a court of law. See Circular 1, Copyright Basics, section “Copyright Registration” and Circular 38b, Highlights of Copyright Amendments Contained in the Uruguay Round Agreements Act (URAA), on non-U.S. works.

Notice here the many references to very important concepts:

"Registered works may be eligible for statutory damages and attorney's fees in successful litigation."

This means that should ever a dispute arise over the ownership/use of copyright, YOU will be required to defend/prosecute your claim in a federal court of law.

Unregistered works have federal protection, and that protection allows one to pursue a copyright infringer/infringement UP TO the point of these possible outcomes:

1. the government orders infringer to stop infringement under penalty of law.

2. the government orders the destruction of illicit copies involved in the infringement.

That's all. Hear me clearly on this:

In order to seek "damages" from an infringement/infringer the work MUST BE REGISTERED PRIOR TO THE INFRINGEMENT.

Damages Defined

hence, "Registered works may be eligible for statutory damages and attorney's fees in successful litigation."

So, if you want to fully protect your original work, and leave yourself ALL avenues of recompensation in light of a dispute or infringement on your copyrights...REGISTER YOUR WORKS.

[samccart]

Excellent information, well researched and founded! Thanks, I will be checking back for more!

[brandondrury]

Great thread. I made it a sticky!

I've got a question. What are my options as far as copywriting is concerned. Let me explain my situation a little more. I sit down with Cubase and write little 30-60 pieces of noise that I can use for future songs, nothing, or whatever. I just sit down and make something.

I try to crank out 30 of these per month. I feel that some of these have just as good of shot of making it on a Verizon commercial (or whatever) as anything else.

Is there an affordable (and hopefully simple an quick) method for me to copyright large bodies of music?

Brandon

[TAlderson]

I believe that you can register a whole cd of work using one form/registration fee, as long as every single song was written by the same person/people.

-Tyler

[AfaraWayland]

Hey Brandon, Thanks!

Here is some basic information courtesy US Copyright Office:

"May I register more than one work on the same application? Where do I list the titles?"
You may register unpublished works as a collection on one application with one title for the entire collection if certain conditions are met. It is not necessary to list the individual titles in your collection, although you may by completing a Form CON. Published works may only be registered as a collection if they were actually first published as a collection and if other requirements have been met. See Circular 1, Copyright Basics, section “Registration Procedures.”

A key word here is unpublished. As long as your works are unpublished, say an unreleased album or in your case, a giganto unpublished compilation of created/original sounds, one can use one SR form to register an entire collection (under a title) according to the language.

Published works however, in your case, say individual noises or samples that had previously been published outside of a collection would have to be registered by themselves (as far as I know).

A released/published album would need to have been released/published as an album/collection in order to register the album/collection [as a title-containing several works,etc....]

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You could, in theory, register "Brandons Bangin' Bring tha Noise Vol. X" that contained a theoretical infinite number of individual noises/sounds/etc (according to the language)...but again, in any copyright situation, the content must be original.

You may end up having to defend your collective works originality should anyone ever dispute your claim to the supposed originality, or should any dispute arise over whether your material is similar to someone elses (to the point where someone can suppose copying/infringement).

With sampling/noise-making, especially with collections, how can a person know whether a sound you made will not be construed as similiar if not the same as a sound someone else made? Those sorts of debates play out every day in court.

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"How much do I have to change in my own work to make a new claim of copyright?"
You may make a new claim in your work if the changes are substantial and creative, something more than just editorial changes or minor changes. This would qualify as a new derivative work. For instance, simply making spelling corrections throughout a work does not warrant a new registration, but adding an additional chapter would. See Circular 14, Copyright Registration for Derivative Works, for further information.

Another question you should ask yourself is how much of your sampling/noise creation is actually original. If a work is created off of an existing work, or existing copyright protected work, the new work is called a "derivative work."

Say you created an original sound, then used that sound to create other sounds...well the first sound would be classified as an original copyright(able) work, the others...would be classified as a derivative of the original work. The derivative works could only be copyright(able) to the extent of the new material added, leaving the original material still holding the original copyright.

What is a derivative work

A “derivative work,” that is, a work that is based on (or derived from) one or more already existing works, is copyrightable if it includes what the copyright law calls an “original work of authorship.” Derivative works, also known as “new versions,” include such works as translations, musical arrangements, dramatizations, fictionalizations, art reproductions, and condensations. Any work in which the editorial revisions, annotations, elaborations, or other modifications represent, as a whole, an original work of authorship is a derivative work or new version.

A typical example of a derivative work received for registration in the Copyright Office is one that is primarily a new work but incorporates some previously published material. This previously published material makes the work a derivative work under the copyright law.

To be copyrightable, a derivative work must be different enough from the original to be regarded as a “new work” or must contain a substantial amount of new material. Making minor changes or additions of little substance to a preexisting work will not qualify the work as a new version for copyright purposes. The new material must be original and copyrightable in itself. Titles, short phrases, and format, for example, are not copyrightable.

So, one has to ask themself whether or not their work is completely original or perhaps a derivative of a previous work.

If it IS a derivative, know this:

Who May Prepare a Derivative Work?

Only the owner of copyright in a work has the right to prepare, or to authorize someone else to create, a new version of that work. The owner is generally the author or someone who has obtained rights from the author. Anyone interested in a work who does not know the owner of copyright may search the records of the Copyright Office. Or, the Office will conduct a search for an hourly fee.* For further information, request Circular 22, How to Investigate the Copyright Status of a Work.

In any case where a protected work is used unlawfully, that is, without the permission of the owner of copyright, copyright will not be extended to the illegally used part

.

In this case, you'd have to seek permission from the original work copyright owner (if any) to register a derivative work.

So, in the case of samples and noises, if you created a new sample and noise that was based on the sample/noise of an original work under copyright protection, you'd first need to contact the author of the original work and discuss your intentions.

-Andrew