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Some Thoughts About Copyrighting Songs

By Edited Jul 19, 2015 1 0

I received an email from an old friend of mine the other day. She told me that her daughters had written a song and she was concerned about protecting it via copyright and what she should do next. She then asked a couple more questions that are the type that many people ask me. I get asked these sorts of questions all the time because I am deeply involved in songwriting and publishing (among other creative endeavors). I am NOT an attorney, so this article is not legal advice. Please consult with your attorney if you are deciding whether to register copyrights on your songs, or are in the process of registration.

I wrote her the following email in response. I thought you might find it interesting and helpful. I changed her name to "friend" everywhere it occurred in the note.

If you see anything you believe is factually incorrect, or should be changed, please let me know in the comments or via a personal message.



Hi friend,

Here is a brief response to you about your question about copyright with respect to your song.

First – the MAJOR disclaimer - - - - - I am NOT an attorney, and copyright law is really a complex thing (simple in some ways, but in the details and subtleties it is complicated). So – bottom line for any issues of consequence you should talk to a real copyright attorney. In your case, find one that specializes in music business / entertainment law.

That said, I DO have quite a bit of personal experience in this area (enough that I have some amount of confidence in myself for my own purposes – but that is a dangerous way to be…)

I have a lot of experience through work with patents, software copyrights, etc. So – anything I say about MUSIC copyright is just based on my own background. In the interest of full disclosure, I do own a couple (small) record labels and a (small) music publishing company. Mine are legit companies, so they are not just the "put up a website and say I am a music publisher sort of thing…." I have all the right legal entities, the right affiliations with things like the Performing Rights Organizations like ASCAP, etc. the religious copyright stuff like CCLI, etc.

Also – I have a bit of experience (much less) with book copyrights because I have written books that are published in the mainstream. (The publisher takes care of registering the copyright, etc.)

So – here is the short answer to your question.

First, another caveat, everything I say is for the U.S. ONLY.

OK – the girls wrote a song. That is good news. They have created a piece of intellectual property. The typical way of protecting that intellectual property is through copyright.

Copyright is exactly that. The RIGHT to COPY. The creator has that right. Others don't unless they have permission from the copyright owner. (Also there are other things we won't worry about yet but just keep in mind there is more to the story….)

Right away – there are questions that we will bypass because we can take it at face value that what they wrote was indeed a song. (When you get into legal issues, definitions become important. What defines a song? Is it just the melody? The melody and lyrics?, etc.) Those questions ARE very important but we will move on.

If your daughters made that song up and went out and sang it on the corner you are not offered protection by copyright law. (Performance is not a satisfying condition…)

If they WRITE IT DOWN in some way (the technical term is "affix it in a tangible medium") then they ARE automatically protected by copyright law. They could also affix it by affixing it to a CD or tape or something else, but you said they have written notation for it. That is a definitely a qualifying medium.

So – they already have copyright in the song. What good is that? Actually, it is really good. But – there is more to the story.

Why do you want copyright protection? Well, the most common reason is because you want to make money with it. There are other reasons, but let's think about that first.

So – someone hears your daughters sing it on the street before they wrote it down. A major recording star drives by in his limo, says – "Hey – what a fantastic song!" records it, and makes a lot of money. You try to do something about it, but there is really not too much you can do at that point. (Of course, good lawyers can do certain things – but pretty much you are hosed.)

BUT – let's say that they go out to your corner TODAY and sing it. (after they have written it down) Major recording star drives by in his Bentley this time, and hears it, cuts a record with it, and makes millions of dollars. What can you do? THIS TIME you CAN do something. You can take him to court. (his corporation - - probably his publishing company…)

You can do that because you have copyright protection that came into effect when they wrote it down.

What happens then?

Well, all sorts of things would REALLY happen before you go to court, and it will probably never go to court, but let's ASSUME it DOES go to court.

Several things have to happen. First, the court has to determine that there WAS a copyright infringement. That is totally non-trivial. That is, how much change would his version have to have from yours to not infringe, etc.?

So – let's assume it is identical to yours and they assert there WAS an infringement.

The next thing is that you have to prove that he had ACCESS to your material. You assert that there was a public performance on the corner, and that he was there. AND you have pictures of it, etc,

If he had no ACCESS to your song, you are hosed because then the only way he has it is that he WROTE THE EXACT SAME SONG AS YOU. (Believe it or not, that CAN happen!)

Then they have to decide that your song was created BEFORE HIS was. That is difficult, but there is a mechanism for that.

Then they decide how you were damaged because of his infringement. You say that you were damaged because you didn't receive the royalties you deserved because he didn't license the song from you.

In this scenario (AND – I HAVE BEEN REALLY GLOSSY) you could only recover damages. NOT punitive damages.

The missing piece here is that although you HAVE COPYRIGHT PROTECTION, at this point in time because they have written it down, what you HAVEN'T done yet is REGISTER your copyright with the Library of Congress.

The U.S. Patent and Trademark Office offers a registration process for music (and books, and other things).

For a filing fee, they will register your copyright with the Library of Congress, and they will put a copy in the library, and issue you a certificate of copyright.

I haven't checked lately, but I think the current fee is $35 to register a song copyright.

(BTW – there are people who assert you can make a poor man's copyright by mailing a copy of the song to yourself to get the postmark on it, then don't open it. That doesn't work. Plenty of cases have demonstrated that that doesn't work.)

What happens when you send in your song for registering the copyright is that they time stamp it and set it on a shelf somewhere. There is NO checking to ensure it is a valid copyright, etc. (With PATENTS, for example, patent examiners look at every patent application to check whether it meets their criteria, etc. then they publish it so other people can say it is an invalid claim, etc, - there isn't the same notion with copyrights.)

So – YES – YOU COULD FILE A COPYRIGHT ON THE SONG "YESTERDAY" (identical to the song by John Lennon and Paul McCartney) and you would receive your certificate of copyright registration covering that song.

Why don't we do that?

Well, we start selling that song as though it was our own, and the lawyers from their publishing company will sue us. Assuming it goes to court, long story short they look at the date on our registration, and the one for the Beatles, the Beatles date is earlier, so we lose. (the point is that the copyrights really aren't examined until someone challenges)

There is another distinction that is important before you register a copyright. Let's say the girls sing that song into a tape recorder. Now you own the copyright in TWO things. ONE is in the underlying song. The OTHER is in that PERFORMANCE of the song.

If you look at a CD at the copyright assertions on each song and on the CD itself you will see something that looks like a C in a circle. THAT is the copyright on the SONG. The R in a circle is in the PERFORMANCE.

SO – If your girls made their own CD and recorded the song "Yesterday" they will have violated the C copyright (song) against the publisher (we skipped an important part of this which is PUBLISHING but we will leave that sit for now).

If, on the other hand, instead of singing it themselves, they bought a copy of it by the Beatles and DUPLICATED it, they would have violated BOTH the song (against the publisher) and the PERFORMANCE (usually held by the record company)

If you are registering for the SONG (C in a circle copyright) you use Copyright form PA. If you are registering the copyright for the PERFORMANCE you usually use Form SR (stands for Sound Recording.)

You can use for SR to cover both. (If you have a sound recording to deposit)

OK - $35 per song. That adds up fast.

Something the copyright office lets you do is register COLLECTIONS of songs for one $35 fee.

So – if the girls are into writing songs, it is probably smarter to register them as collections. It is much cheaper.

When you register copyright, you note on the form who wrote the lyrics and who wrote the music. (If it has both)

In order to register as a collection, ALL the songs have to have the SAME composer and author on every song.

That is, if both your girls wrote both the music and the lyrics, you can register all of the songs where they had that breakdown of creation. If, though, one girl then writes a song by herself, that song can't go in THAT collection.

If you ever want to assign the copyright to some other publisher, then there is a process for removing the song from the collection so that you can assign that song alone.

If a major recording artist (or anyone else) hears the song and says "Hey – I want to record that" then what happens is you assign the copyright to his publisher (unless you have your OWN publishing company) in exchange for royalties and credit, etc. that is specified in the publishing contract.

The way the money flows, etc. is really interesting, but we won't go into that now.

So – then friend says: "Great – Aguy, so you are telling us to spend our $35 and register the copyright with the Library of Congress on form PA or SR and everything is good with the world?"

Yes – in many ways that is the case.

So – friend asks "Is that what YOU do with your songs?" and Aguy says "Not always."

So – friend asks "Is that what WE should do with OUR song?"

Aguy says: "That depends". Those $35s add up when you start doing a lot of them.

First – I would NEVER advise you to NOT register your copyright. That would be totally irresponsible.

Second – "The only thing you have to lose by registering your copyright is your $35 and the time it takes you to fill out the form (online) and mail in your tangible copy in its best form.

Does Aguy register all his copyrights? No. Why not? It is expensive and a hassle. SHOULD Aguy register all his copyrights? Probably. Why doesn't he?

Well, it is a risk tradeoff for the likeliness of having an infringement problem vs. the potential income from the songs.

Here is a bit of reality…..

The songwriting business is EXTREMELY competitive. How much stealing of songs goes on in reality? To the best of my knowledge, way less than you might think.

It DOES happen, though.

BUT – as I have worked with more and more publishers (good, reputable publishers who are making things happen in the music world) I learn more and more how hard it is to write a really good (Read that as commercially successful) song. People who can do that are more than likely able to do it more than once. Sure – the one hit wonder DOES happen, but in general, the big $$$ songs are written by people who work REALLY HARD and improve their writing all the time.

So – if someone pitches a good publisher a GREAT SONG, or they are driving down the road and hear someone sing a GREAT song, then there is a reasonable expectation that they can do it again. So – what does that publisher want? They want to get into a good relationship with that person because they think they will continue to write hit songs. The LAST thing they want to do is get someone who can write good songs ticked off at them. So – they are not likely to steal the song.

BUT – there is SLIME everywhere, and you never know who it is.

I DO pitch songs of my own, that I think have good potential even before I register copyrights WITH PUBLISHERS I KNOW.

If I am pitching to someone I don't know well, or I didn't meet by a solid connection, that changes everything.

So – the short answer I would give you is that if you are worried about someone stealing your song, the smart thing to do is prepare an application to register your copyright with the library of congress.

I can walk you through that process if you like.

Friend – I don't want to come across like a know-it-all. It is just that you happened to ask about something that I happen to know more about than joe blow off the street. ;)

I hope this helps at least a little.

If nothing else, it gives you some info for you to go and check out on your own. Have you looked at the copyright web site? http://www.copyright.gov/

That would be a good next step.

If you find anything that conflicts with what I said, THEY ARE THE ONES WHO KNOW!!! Believe that site over anything I tell you. If you do find something, though, please let me know so I can fix my knowhow. (I typed this all off the top of my head, and haven't looked at their site in a while, so it is possible that there are changes or subtleties that I am not up on.)

There is one more distinction that might be helpful for you to know about.

That has to do with the difference between performances, and mechanicals.

A performance is like when something is performed, or played on the radio, or streamed. A mechanical is something that exists tangibly like a recording, or a download, or a CD, etc.

I better stop because I have to go.

I will go ahead and mail these notes even though I haven't proofread because it will probably be a while before I can proofread them.

Have a great night!

-Aguy

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