This article will discuss some basic concepts of copyright law. Keep in mind that there are two separate copyrights in music: The copyright in the recording and the copyright in the composition.
What is a Copyright?
The definition of copyright is that it is a form of federal protection granted by Title 17 of the United States Code to the authors of “original works of authorship that are fixed in a tangible medium of expression.” An original work must have a “minimal degree of creativity” to be considered original.
What Can you Copyright?
The Copyright Act (17 U.S.C. § 102) provides a list of copyrightable works, including the following categories:
1. Literary works
2. Musical works, including any accompanying words
3. Dramatic works, including any accompanying music
4. Pantomimes and choreographic works
5. Pictorial, graphic and sculptural works
6. Motion pictures and other audiovisual works
7. Sound recordings
8. Architectural works
These categories are broadly interpreted by the courts and by the Registrar of Copyrights. There are also several categories of works that are not eligible for federal copyright protection, including:
A. Works that have not been
“fixed in a tangible medium
of expression.”
B. Titles, names, short phrases and slogans.
C. Familiar symbols or designs; mere listings of ingredients or contents; (d) ideas (only expressions of ideas are copyrightable), procedures, methods, systems, processes, concepts, principles, discoveries or devices.
D. Works consisting entirely of common information and containing no original authorship.
Registering a Copyright
Many people are unaware that registration of copyright is not necessary in order to have copyright protection under the Copyright Act of 1976. Registration, however, is a fairly easy process and has some benefits as discussed hereinafter. To register, you can go to the copyright office online system (go to copyright.gov/forms). There are different types of applications for the different types of subject matter. The current fee is $35 for a basic claim (for online filings only). With the application, you also need to deposit copies of the work. The advantages of online filing include: a lower filing fee; faster processing time; online status tracking; secure payment by credit or debit card, check, or copyright office deposit account; and the ability to upload certain categories of deposits directly as electronic files.
What benefits do I get from registration?
Though registration is not required for copyright protection, there are some benefits to registering your work with the Copyright Office:
1. To file a copyright infringement action, owners of US works must register. If you do not register, then you cannot bring a copyright infringement lawsuit.
2. If you register before the infringement, then you are allowed to recover attorney fees and costs under section 412. You can also recover statutory damages, where the judge awards a monetary amount even if profits or damages cannot be proven.
3. If you register within five years of publication, the certificate becomes “prima facie” evidence of what is stated on the certificate under section 410. Therefore, the burden of proof will be on the defendant to prove that you do not own the copyright in the subject work.
GLENN LITWAK is a veteran entertainment attorney based in Santa Monica, CA. He has represented platinum-selling recording artists, Grammy-winning music producers, hit songwriters, management and production companies, music publishers and independent record labels. Glenn is also a frequent speaker at music industry conferences around the country, such as South by Southwest and the Billboard Music in Film and TV Conference. Email Litwak at [email protected] or visit glennlitwak.com.
This article is a very brief overview of the subject matter and does not constitute legal advice.
