Copyright question - need help

[adorian]

I want to start this by prefacing that I understand that this is not professional advice and most likely I'd be consulting a lawyer, but I want to get your opinion on this regardless.

Last year I was in a band briefly, that I left as I felt my time there was mainly wasted and had some huge ego flare-ups of the other two people that led me to believe that this is not a situation that I want to be. Sadly, a year later I find out that my intuition was right on the money.

It was a "power trio" - I on guitar, bassist/singer and drummer. Since neither one of these 2 guys brought in any material to get a decent song started I decided to bring in some riffs and arrangements. We ended up using them with maybe some very minor arrangement tweaks, say instead of 4 bars of verse riff we made it extend to six and maybe we right a note longer on a transition, nothing major as far as the arrangement is concerned.

The singer writes the lyrics, which BTW were the most, or as close to the most crap lyrics I've read in my life. Drummer plays the song pretty close if not almost identical to the drum machine patterns I wrote, he added a few sloppy tom transitions that didn't seem to match well. I cringed as we played this song live for one show as I felt at least the music was better than the rest of the repertoire. The song had quite a few things that needed to be ironed out, mainly sloppy drumming, the awful lyrics that I objected to - nothing got fixed on either one of these and I pretty much left at that time.

I leave the band shortly afterwards and since we had an unfinished song that I wrote the riffs and arrangements I didn't think anything further of this.

A year later I am informed by one of these two that they are releasing the song and not to worry b/c I am getting credit. At that point I am as nothing was ever mentioned about this song again upon me leaving as it was unfinished work in progress that was based on my original idea. Since then I have reworked it with better lyrics and did some rearrangement but haven't recorded it yet. I am invited to even guest on their album as honorary guest if I like to because I participated in the writing of the song, but they're gonna do it regardless of whether I wanted to guest on it or not. I am going to get credit for participating in the writing process. At that point I tell them not to use my riffs and arrangements as they are copyrighted material and I am not giving them permission to use in this song as I already have a better finished version that is going on my solo album and it would be conflict of interest for me to do so, trying to do this all in a friendly manner without making a huge deal about it. I get an email in response that basically says they are going over my head and doing it anyway, whether I like it or not.

So that is the current situation - what do you think, do I have right to stop them from using my riffs to their lyrics or you think I am overreacting? I don't want my name associated with this rubbish production yet they are forging ahead without my consent so I do believe I have some legal rights on the matter. To make it more fun I am also due to release the same song (at least riff and arrangement-wise) briefly and start playing it with my new band.

I have proof of emails where I've submitted the song to them, also have a video recording of me playing it before it ever makes it to them with a date stamp. I believe I also had it sent to Library of Congress but I need to verify that it was in the batch of songs I submitted at that time.

Thanks for bearing with a quite lenghty topic and am looking forward to hearing your opinions on this issue.

[TonyB]

Originally Posted by adorian

...and most likely I'd be consulting a lawyer, but I want to get your opinion on this regardless.

Good idea, but let me preface that I'm not a lawyer. The lawyer can help you understand what your options are.

Originally Posted by adorian

At that point I tell them not to use my riffs and arrangements as they are copyrighted material and I am not giving them permission to use in this song ....

Is it actually copyrighted from the U.S. Copyright Office? If not, then it's not copyrighted and not protected by the court system.

Originally Posted by adorian

So that is the current situation - what do you think, do I have right to stop them from using my riffs to their lyrics or you think I am overreacting?

Legally? No you can't stop them from using your riffs without a Copyright. Morally, they may be stepping over the line.

Originally Posted by adorian

... yet they are forging ahead without my consent so I do believe I have some legal rights on the matter. To make it more fun I am also due to release the same song (at least riff and arrangement-wise) briefly and start playing it with my new band.

You don't have legal rights without a Copyright. There's no proof who wrote the material. Without the Copyright the courts cannot determine who is the legal owner of the material.

Reminds of the "two Pink Floyd" bands out there!

Originally Posted by adorian

I have proof of emails where I've submitted the song to them, also have a video recording of me playing it before it ever makes it to them with a date stamp. I believe I also had it sent to Library of Congress but I need to verify that it was in the batch of songs I submitted at that time.

As a longtime information security consultant (including computer forensics and chain of custody), I can tell you that emails are not admissable in court, unless you can have investigators pull them directly from the ISP server. Emails from your computer are not legally admissable in court since there's no way of ensuring the integrity/authenticity of those emails. It's easy to modify emails on your computer.

However, if you did register your material with the Library of Congress for a Copyright then you may have a legal case.

This reminds me why Lou Gramm split with Mick Jones (Foreigner). They wrote their biggest hit song together (I Wanna Know What Love Is) and Mick Jones weaseled his way to 95% songwriting credit on it and gave Lou Gramm 5%. Who's right in this case? No one knows, but those two songwriters.

[adorian]

Thanks Tony, I'd have to dig deeper to ensure that I did copyright it at that time, but it is highly likely that I did as I did work with a band about 10 yrs ago that stole 3 songs from me and never gave me credit so from there on I've been copyrighting in bulk even before I submit riff material.

This definitely reminds me again that even the new LoC prices I should be more vigilant about this stuff.

[patlaw]

Unfortunately, TonyB is very wrong in much of his post. For example, a copyright comes into existence at the moment that a work is reduced to a tangible medium of expression. It is not necessary to file an application with the US Copyright Office for your work to be protected by a copyright.

If anyone is still reading this thread and is interested in the rest of the story, please let me know. In the mean time, take a look at the very helpful FAQ on the Copyright Office's web page.

[TonyB]

Originally Posted by patlaw

Unfortunately, TonyB is very wrong in much of his post. For example, a copyright comes into existence at the moment that a work is reduced to a tangible medium of expression. It is not necessary to file an application with the US Copyright Office for your work to be protected by a copyright.

If anyone is still reading this thread and is interested in the rest of the story, please let me know. In the mean time, take a look at the very helpful FAQ on the Copyright Office's web page.

Wow! Baraq Obama can shut the Copyright Office down! And I can save $35 per work! I didn't know that. I guess my lawyer is overpaid if he's that wrong. Wow!

Yes, I understand all about "automatic copyright," especially in today's MySpace environment.

Record, film, and TV companies won't talk to me until I have a copyright registration in hand!

Sorry, but I'll continue copyrighting my material and my clients' material.

If done right in the beginning as in the case we've been discussing, it can save alot of headaches down the road. When it comes to a band situation, it's important to clearly define which band member(s) have ownership.

I KNOW THE LINK THAT YOU PROVIDED VERY WELL. READ IT MORE CLOSELY! ALL, yes, ALL agencies require a COPYRIGHT REGISTRATION before you can submit or sell your songs to them. PERIOD. And as I stated, a poor man's copyright is not legally a copyright. It won't help for a band that is arguing with itself.

I guess I need to fire my lawyer if he's so wrong.

=============
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. (agencies require this; especially if a band is involved; they don't want to be in the middle of the situation that the OP is in) 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.

I’ve heard about a “poor man’s copyright.” What is it?
The practice of sending a copy of your own work to yourself is sometimes called a “poor man’s copyright.” There is no provision in the copyright law regarding any such type of protection, and it is not a substitute for registration.

A QUESTION FOR YOU MR PATLAW: How could the OP's situation have been avoided?

[juno106]

How about registering the works with MCPS or PRS? Will that not offer some level of protection?

[patlaw]

TonyB, you quoted the parts of the Copyright Office's web site that you thought made your point, but you skipped that parts that were most relevant to my comments. Normally I don't respond to someone who is sitting on the edge of his chair looking for an argument, but in the chance that I misinterpreted your tone of voice from a written post, which is way too easy to do, I offer this response.

When is my work protected?
Your work is under copyright protection the moment it is created and fixed in a tangible form that it is perceptible either directly or with the aid of a machine or device.

Do I have to register with your office to be protected?
No. In general, registration is voluntary. Copyright exists from the moment the work is created. You will have to register, however, if you wish to bring a lawsuit for infringement of a U.S. work. See Circular 1, Copyright Basics, section “Copyright Registration.”

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.

Your misunderstanding is very common, which is why I teach courses on copyright.

In summary,

• A copyright is statutory. It comes into existence at the moment the work is reduced to a tangible medium of expression. For a songwriter, that usually occurs when a song is written down or recorded.
• It is not required to file for and obtain a copyright registration to have a valid copyright. However, there are benefits to registration and, if you decide to litigate, it is mandatory that you have a registration in hand.
• If you do not file an application to register a copyright either withinin 90 days of publication or before the infringement begins, the only legal remedies to which you may be entitled are actual damages (almost impossible to prove) and injunctive relief.
• If you do timely file your application, you may be entitled to statutory (presumed) damages, injunctive relief, and attorneys' fees. Applying for the registration within 90 days of publication or before the infringement begins is extremely beneficial in enforcing a copyright.

Allow me to illustrate several points you made with which I disagree. (Note that I do not disagree with everything you said.)

Is it actually copyrighted from the U.S. Copyright Office? If not, then it's not copyrighted and not protected by the court system.

Here is the way I would rewrite your comment to make it accurate.

"Do you have a copyright registration from the U.S. Copyright Office? If not, then you must obtain one before you can obtain the benefit of the court system (file suit)."

You don't have legal rights without a Copyright. There's no proof who wrote the material. Without the Copyright the courts cannot determine who is the legal owner of the material.

Of course you don't have legal rights without a copyright, but based on the rest of the post, I don't think that's what you meant. If the OP wrote the song and reduced it to a tangible medium of expression, he has a copyright (assuming that the creativity rises to a level that the government acknowledges is sufficient to warrant copyright protection). There are any number of ways to determine who wrote a song. Some courts absolutely will accept email as evidence. The testimony of disinterested parties with personal knowledge of the creation of the song are highly probative.

However, if you did register your material with the Library of Congress for a Copyright then you may have a legal case.

You may have a legal case even if you did not register your material with the Copyright Office. However, you do have to obtain a certificate of registration before you can file a lawsuit.

Reminds of the "two Pink Floyd" bands out there!

Band names are trademark matters, not copyright.

Now, getting to your response, you said,

Yes, I understand all about "automatic copyright," especially in today's MySpace environment.

I am not aware of any changes in the copyright law or in recommended copyright compliance procedures that have been necessitated by MySpace. You lost me on that one.

Sorry, but I'll continue copyrighting my material and my clients' material. If done right in the beginning as in the case we've been discussing, it can save alot of headaches down the road. When it comes to a band situation, it's important to clearly define which band member(s) have ownership.

No apology necessary. I agree with these comments. In fact, this is the answer to OP's question. He should have filed an application to register the copyright in the song when the parties were in agreement. Having a registration is not a panacea, since there are other hurdles, but it's a great first step to resolve who the author or claimant is.

I KNOW THE LINK THAT YOU PROVIDED VERY WELL. READ IT MORE CLOSELY!

Your condescension is misplaced. The FAQ is written for people who are either unable or unwilling to read the federal statutes on copyright law and the case law that has evolved to interpret those statutes. I don't know you, and you don't know me, but I'd be willing to wager that I have read them more than you ever will. There's no way to know for sure, though.

ALL, yes, ALL agencies require a COPYRIGHT REGISTRATION before you can submit or sell your songs to them. PERIOD. And as I stated, a poor man's copyright is not legally a copyright. It won't help for a band that is arguing with itself.

Many agencies will accept submissions without a registration in hand. The reason is that they know about statutory copyrights. However, that does not mean that you should not do business correctly and obtain a registration on your work. I absolutely agree with you that a "poor man's copyright" is worthless.

I guess I need to fire my lawyer if he's so wrong.

Your lawyer did not make this post. You did. If you have accurately quoted what your lawyer told you, you might want to do some homework on your own. Sometimes lawyers give bad advice. Sometimes clients hear what they want to hear.

I didn't come here to start an argument. A debate is fine. You've been here a while, and I'm sure you've provided to excellent information to lots of other posters. I did not come here to be disruptive or cause problems, so I'll probably just disappear.

This post is not legal advice.

[TonyB]

Originally Posted by patlaw

TonyB, you quoted the parts of the Copyright Office's web site that you thought made your point, but you skipped that parts that were most relevant to my comments. Normally I don't respond to someone who is sitting on the edge of his chair looking for an argument, but in the chance that I misinterpreted your tone of voice from a written post, which is way too easy to do, I offer this response.


Your misunderstanding is very common, which is why I teach courses on copyright.

In summary,

• A copyright is statutory. It comes into existence at the moment the work is reduced to a tangible medium of expression. For a songwriter, that usually occurs when a song is written down or recorded.
• It is not required to file for and obtain a copyright registration to have a valid copyright. However, there are benefits to registration and, if you decide to litigate, it is mandatory that you have a registration in hand.
• If you do not file an application to register a copyright either withinin 90 days of publication or before the infringement begins, the only legal remedies to which you may be entitled are actual damages (almost impossible to prove) and injunctive relief.
• If you do timely file your application, you may be entitled to statutory (presumed) damages, injunctive relief, and attorneys' fees. Applying for the registration within 90 days of publication or before the infringement begins is extremely beneficial in enforcing a copyright.

Allow me to illustrate several points you made with which I disagree. (Note that I do not disagree with everything you said.)


Here is the way I would rewrite your comment to make it accurate.

"Do you have a copyright registration from the U.S. Copyright Office? If not, then you must obtain one before you can obtain the benefit of the court system (file suit)."


Of course you don't have legal rights without a copyright, but based on the rest of the post, I don't think that's what you meant. If the OP wrote the song and reduced it to a tangible medium of expression, he has a copyright (assuming that the creativity rises to a level that the government acknowledges is sufficient to warrant copyright protection). There are any number of ways to determine who wrote a song. Some courts absolutely will accept email as evidence. The testimony of disinterested parties with personal knowledge of the creation of the song are highly probative.


You may have a legal case even if you did not register your material with the Copyright Office. However, you do have to obtain a certificate of registration before you can file a lawsuit.


Band names are trademark matters, not copyright.

Now, getting to your response, you said,

I am not aware of any changes in the copyright law or in recommended copyright compliance procedures that have been necessitated by MySpace. You lost me on that one.


No apology necessary. I agree with these comments. In fact, this is the answer to OP's question. He should have filed an application to register the copyright in the song when the parties were in agreement. Having a registration is not a panacea, since there are other hurdles, but it's a great first step to resolve who the author or claimant is.


Your condescension is misplaced. The FAQ is written for people who are either unable or unwilling to read the federal statutes on copyright law and the case law that has evolved to interpret those statutes. I don't know you, and you don't know me, but I'd be willing to wager that I have read them more than you ever will. There's no way to know for sure, though.


Many agencies will accept submissions without a registration in hand. The reason is that they know about statutory copyrights. However, that does not mean that you should not do business correctly and obtain a registration on your work. I absolutely agree with you that a "poor man's copyright" is worthless.


Your lawyer did not make this post. You did. If you have accurately quoted what your lawyer told you, you might want to do some homework on your own. Sometimes lawyers give bad advice. Sometimes clients hear what they want to hear.

I didn't come here to start an argument. A debate is fine. You've been here a while, and I'm sure you've provided to excellent information to lots of other posters. I did not come here to be disruptive or cause problems, so I'll probably just disappear.

This post is not legal advice.

I'm not going to continue this ridiculous argument. No one will accept anyone's song unless it's copyrighted. Done. Period. The OP's song will never be seriously looked at until it's copyrighted....which means all ownership has been clearly and legally cleared.

If I take a song to a publisher or agent in Nashville...well I'd say they throw me out of their office...but I wouldn't get into the door with "an automatic copyright." I would never take an "automatic copyright" to anyone.

Bye!

Originally Posted by patlaw

TonyB, you quoted the parts of the Copyright Office's web site that you thought made your point, but you skipped that parts that were most relevant to my comments. Normally I don't respond to someone who is sitting on the edge of his chair looking for an argument, but in the chance that I misinterpreted your tone of voice from a written post, which is way too easy to do, I offer this response.


Your misunderstanding is very common, which is why I teach courses on copyright.

In summary,

• A copyright is statutory. It comes into existence at the moment the work is reduced to a tangible medium of expression. For a songwriter, that usually occurs when a song is written down or recorded.
• It is not required to file for and obtain a copyright registration to have a valid copyright. However, there are benefits to registration and, if you decide to litigate, it is mandatory that you have a registration in hand.
• If you do not file an application to register a copyright either withinin 90 days of publication or before the infringement begins, the only legal remedies to which you may be entitled are actual damages (almost impossible to prove) and injunctive relief.
• If you do timely file your application, you may be entitled to statutory (presumed) damages, injunctive relief, and attorneys' fees. Applying for the registration within 90 days of publication or before the infringement begins is extremely beneficial in enforcing a copyright.

Allow me to illustrate several points you made with which I disagree. (Note that I do not disagree with everything you said.)


Here is the way I would rewrite your comment to make it accurate.

"Do you have a copyright registration from the U.S. Copyright Office? If not, then you must obtain one before you can obtain the benefit of the court system (file suit)."


Of course you don't have legal rights without a copyright, but based on the rest of the post, I don't think that's what you meant. If the OP wrote the song and reduced it to a tangible medium of expression, he has a copyright (assuming that the creativity rises to a level that the government acknowledges is sufficient to warrant copyright protection).

The issue here is that he needs to prove WHO in the band is the owner

You may have a legal case even if you did not register your material with the Copyright Office. However, you do have to obtain a certificate of registration before you can file a lawsuit.
Isn't that what I said?


Band names are trademark matters, not copyright.
No one was talking about band names!


No apology necessary. I agree with these comments. In fact, this is the answer to OP's question. He should have filed an application to register the copyright in the song when the parties were in agreement. Having a registration is not a panacea, since there are other hurdles, but it's a great first step to resolve who the author or claimant is.

This is what I advised! WTF!


However, that does not mean that you should not do business correctly and obtain a registration on your work. I absolutely agree with you that a "poor man's copyright" is worthless.

That above was my original advice to the OP who had an internal situation with he previous band. It was about a song that the OP wrote with the original, not about a band name!

My post wasn't legal advice; it was practical advice. My practical advice is to pay the stinkin' $35 to ensure proper ownership....especially in a band situation.

bye!

[bucketman115]

Let me give you a synopsis-- precursor being that I'm getting my degree in music with a concentration in music industry and took a class (copyright law) with an established copyright lawyer.

Your music is copyrighted if it's in tangible form-- written out (dated) or recorded (dated). If not you got nothing.

If you do have recorded riffs and what not that are dated prior to the band than you might have to bust your ass but you have the rights to that. I would register it with the copyright office however since that holds up a lot better before you take action.

[TonyB]

Originally Posted by bucketman115

Let me give you a synopsis-- precursor being that I'm getting my degree in music with a concentration in music industry and took a class (copyright law) with an established copyright lawyer.

Your music is copyrighted if it's in tangible form-- written out (dated) or recorded (dated). If not you got nothing.

If you do have recorded riffs and what not that are dated prior to the band than you might have to bust your ass but you have the rights to that. I would register it with the copyright office however since that holds up a lot better before you take action.

Well said! Wish I could be that succinct! Thanks.