Sound Advice

Your inside source to the world of entertainment law

with Peter Vaughn Shaver, Esq.
pvshaver@hotmail.com

Dear Sound Advice:
I've never copyrighted anything I've put out. The hassle and expense just doesn't seem necessary and, if my songs hit at some point, won't someone else just take care of it for me?
-Big Bother.

Dear Bother:

First off, it is important for musicians to know that there are two types of copyrights related to music: rights in the song compositions (imagine the sheet music, with or without lyrics) and rights in the sound recordings (in the familiar form of CD's, tapes, vinyl).

The good news is that by merely writing and recording your songs you have protectable copyrights in them. Even without formal registration, by "fixing" original material in a tangible medium of expression, such as a tape or CD, you have established certain rights in your work. However, the bad news is that without registering your songs, your rights are very limited and you can only recover what are called "actual" damages from infringers. Actual damages are either the amount the infringer gained through the sales of unauthorized use of your material, or the amount you lost by being deprived of the chance to market and sell your own work.

Yeah, you can wait until you get signed by a recording or publishing company, but I suggest you don't. For certain publishing and licensing deals, it is a benefit to have previously established your ownership of both the sound recordings AND compositions. You don't have to register every song you create, but for songs that have economic value or are being exposed to the public, you should definitely consider registering them. Also, if you are looking for a recording or publishing deal, you will likely be sending out your songs for other parties to review. Why not obtain the maximum protection of your stuff BEFORE sending it out.

Registering your copyrights is a easy and inexpensive way to prevent getting ripped off and solidifying your rights to your creative output. Benefits include proof that you created and owned the material as of a certain date, recovering your attorney's fees from infringers and, as an alternative to actual damages, you might be able to collect "statutory damages" of up to $150,000 for each willful infringement of your material.

Copyright registration is easy.
1. Download copyright Forms (in .pdf format) and Instructions (in separate files) from the Copyright Office website at lcweb.loc.gov/copyright. Song compositions are registered using a Form PA. Use a Form SR for sound recordings. In certain circumstances, using the SR form entitled you to register both types of copyright on one form. Check out Copyright Office Circulars #56 and 56a for more information. (also available online).
2. Complete the forms using the Instructions and send them with a check for $30.00 and recordings ("deposits") of your songs (one copy for unpublished music, two copies for released music). Generally, you can register entire collections of songs together for one $30.00 fee. However, in certain cases, you might want to consider registering individual songs, especially where an individual song is very popular. To get maximum benefits you should always register within three months of publication or the date from which you first offer the work for sale or for public consumption. Keep copies of everything you send to the Copyright Office.
3. In a few months, you will receive a stamped and numbered registration form from the Copyright Office.

Don't bother with "poor man's copyright"- the practice of mailing yourself a sealed envelope containing your creative material. This is NOT the same as copyrighting and does not provide you with the benefits listed above. Also, you should consider registering packaging artwork, logos and trademarks separately. Your song-related copyright registrations will not cover these items.

Even if you don't register your work, you should always place a copyright notice on any demo copies sent out for review, including putting your notice on the CD and the packaging. For compositions and artwork, the notice should look like this: "© 2003, your name here. All rights reserved." If you own the sound recordings add "(P) 2003, your name here." The circle "P" stands for "Phonogram" - an old school way of saying "recording." You can see how other artists do this by checking out most big label CD packaging.

The bottom line: If you are sending out demos or getting airplay for your music you should not wait until you get a publishing or recording deal to register your copyrights.

Send your legal questions to pvshaver@hotmail.com, with “SOUND ADVICE” as the subject.

Disclaimer: The advice and opinions offered in this column are meant to be educational only and should not be relied upon as legal advice. Every situation is different and you are cautioned to seek advice from qualified counsel regarding the specific facts of your matter. Neither the attorney nor Music Liberation Project accepts any responsibility for any reader's reliance on the contents of this article.