U.S. COPYRIGHTS - IT'S YOUR SONG
- Grant Collinsworth
- Sep 2, 2023
- 11 min read
Updated: Sep 4, 2023
By Grant Collinsworth - 09-02-2023
"Congress shall have power . . . to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” — United States Constitution - Article I, Section 8
This article will focus on copyrights; as they apply to music; or more specifically to song(s) and will try to point readers toward the most common and useful facts about registering a copyright for a song or collection of songs. Also; See Disclaimer
Fundamental Benefits of Registering Your Copyright
The benefit of a formal registration of your copyright comes down to a simple fact: By virtue of federal and statutory government (...being the most credible witness in this case) ; your formal registration is fully sanctioned and backed by the most powerful, legal consensus in the nation (if not the world).
With the full weight of the law; It affords you a cadre of accompanying legal rights. Above all; It vastly eliminates any doubt, about who the owner of the copyright is. Armed with that; you can conquer almost any infringer in the industry.
It's no stretch to suggest that music industry professionals might be inclined to take more seriously; those musicians, who can demonstrate a capability to practice some basic due diligence. ...
The Copyright Notice
A Copyright notice tells the world that your work is protected under U.S. law (and by certain international treaties). While it's not necessary to post the notice; doing so might help you fend off opportunists; who may try to claim "innocent" infringement. or "I didn't know the limits on Fair Use or Creative Commons. (I am reminded of the victim, who snuck over the chain-link fence; ignoring the sign that said: "Beware of Pit-Bull."
When you publish a work; and decide to post a proper Copyright notice; it should contain these pieces information:
The Copyright word and/or symbol : Copyright ©
The name of the Creator/Author/Owner of the work
The calendar Year (or range of years) that the work was published/republished.
The current rights status; (as held by the copyright owner(s))
All rights reserved.
Some rights reserved.
No rights reserved.
Any additional info, such as the title of the work.
Here is a typical example of its use: (This one is posted on the footer of this website): The BluePoetSouls Gallery (BluePoetSouls.com) - Copyright © 2012-2023 All Rights Reserved
A Simple Nomenclature of Copyright Protection (Two Laws in Symmetry)
U.S. Intellectual Property law stipulates that the moment your original, creative idea is initially 'expressed' or transmitted to a 'fixed form', (such as on paper; a cocktail napkin; a broken-arm cast; a sound recording; or digitally, through email & text, etc.; that is the moment that your idea is protected.
U.S. Copyright Law takes it a step further. If your creative idea is transmitted specifically to audio or visual media, then the recording; along with its intellectual-property content (aka; composition; music and Lyric, etc.) is automatically protected. The law grants exclusive right to the copyright owner to authorize performance; transmission; reproduction and distribution of the work.
Q: Why might the law discern between a song's sound recording and its composition (music and lyric) work?
A: Primarily, it's to protect the rights of both the performer and the composer of a work. The artist, who performs; records and distributes a rendition of a composition, is not necessarily the same person who created; wrote or authored the composition. Example: Aretha Franklin recorded (hence expressed a performance of...) "Respect"; but it was Otis Redding who actually wrote and composed the song. Each would collect royalties; respectively; (No pun intended).
Two Types of Copyrights (Three Types of Licensing)
For songs in the U.S.; we are ultimately concerned with two (2) types of copyrights, (and three (3) associated licenses; respectively
Right to Authorize Public Performance: U.S. Copyright Law grants the copyright owner(s) the exclusive right to authorize (or deny) the public performance of his/her work(s); Performers / Broadcasters must obtain the following authorization (through a license) from the copyright owner:
License to perform or transmit: Certified permission is issued (typically by BMI, ASCAP, or SESAC on behalf of the subscribed artist/copyright owner(s)) This license allows other artists/venues to perform or transmit (broadcast) the work. For example: A bar owner (public venue) would obtain the license to broadcast music from a jukebox; and/or allow hired bands to perform the artist's work within the venue.
Right to Authorize Reproduction (and Distribution): U.S. Copyright Law grants the copyright owner the exclusive right to authorize (or deny) the reproduction and distribution of his/her own musical work (i.e., sound recordings; Sound tapes; Digital ring tones; etc.). Distributers and/or Publishers must obtain the following authorization (through these licenses) from the copyright owner(s); to use the work and or make copies of the work for distribution and sales purposes. ;
Mechanical License: Certified permission is issued to streaming services, hosting platforms, distribution services; The permissions allow these services to reproduce and distribute the artist's work to authorized points of sale (Virtual and/or Brick & Morter).
Synchronization License: Certified permission is issued to agencies and producers, who use the artist's work as soundtrack for film; television; digital videos and various forms of advertisement.
Some Myths and Some Truths (#1)
"Before your song's copyright can be protected; It has to be registered first. "
Not True. Under U.S. Copyright law; your songs are automatically given basic Copyright protections; regardless of the registration status. You do not 'have' to register the copyright.
So then; Why Register?
Arguing the ownership of your song against another challenger rests on your ability to present a viable; authentic date of creation; publishing date; and other manner of supporting evidence, etc.
Back in the day; a songwriter might have deployed the 'poor man's' copyright option; by sending a copy of the song to his/herself via registered mail; and leaving it sealed after delivery. This would provide a qualified timestamp and a signed receipt among things.
But; most attorneys will insist that such form of proof; on its own, is "very weak evidence"; and it wouldn't hold much leverage in a court. For example: The 'other' guy could simply convince his attorneys that he possessed the song in question; before the date that you mailed your copy of the song to yourself.
Fortunately (In the U.S.); the law does require, that If you ever intend to sue someone for copyright infringement of your song; you must formally register the copyright with the Copyright office of the U.S. Library of Congress. This gives your copyright claim the necessary basic legal standing and validity; for the court. Their team of legal clerks and attorneys would then analyze the song in question to determine originality, creativity, and fixation.
AI Detection of Plagiarized Work.
There are many advanced professional tools they use; to analyze and determine the authenticity of a song. Spotify; a major distribution platform; uses AI tools to detect plagiarism in its subscribers' song submissions. (See Links of Interest at bottom of this article.)
Recorded songs are time stamped (at the studio or at home) which supports proof of a fixation date. Publication dates can be confirmed by the platform or agency by which the song is posted/ officially published. The melody; arrangement and other factors expressed in your song will reveal whether its authentic, independent; creative and original or a plagiarized work.
Some Myths and Some Truths (#2)
"Foreign hackers will try to steal my song to claim it as their own."
Not Really!.... They have too much competition with local hackers; who are also NOT trying to steal and claim your song. Theft in this manner is extremely rare and too easy to expose. So, it's not really a problem to worry about... The real problem lies in....
Mechanical (Distribution)
When Copyright disputes arise; they are more likely centered around unauthorized reproduction /distribution of the artist's existing work.
The operational bureaucracy; snares and legal loopholes of online streaming are more likely to contribute to the cause of copyright violations.
My Personal Anecdote:
For example: I subscribed to a lesser known distribution platform and uploaded a few of my songs. After a full year of poor results; I decided to NOT renew my subscription. Naturally, once cancelled; there was no further expectation of services and distribution of my songs. In fact, It was assumed that they would simply hide the account and relinquish any further attempts to distribute copies of my songs. However; Eighteen months later; I discovered that the distributor and its affiliates still posted copies of that song; poised for distribution and sale..
Behind The Zipper of The Distribution Platform Costume: I had no proof or confirmation that any sales or revenues were ever generated from my songs on that platform or its affiliate platforms... And to be painfully honest; that speaks more about my songs for sale.
Most Online Streaming/Distribution platforms don't make their profits off of actual song-sales. They make their profits from revenues; generated by Subscribers and/or Marketing Advertisers.
Ultimately; the business goal of distribution platforms is to build qualified consumer lists that attract Advertisers. The bigger the list; the higher it's value becomes. The platform will typically target the songwriters with the implied promise of 'a chance to successfully build a fanbase'. (Most artists assume it implies a chance at wealth & fame).
The platform then targets advertisers with the explicit promise of access to a broad list of harvestable niches and segments. (its not even artist/people anymore...its 'niches and 'segments'... Let that sink in)
By understanding the business model intentions (and value) of the distribution platforms; one can see why the platforms are never in a hurry to 'voluntarily' surrender to the rules of mechanical licenses; even after the artist has canceled his/her membership subscriptions.
In my case; (and well within my Copyright mechanical distribution rights) I followed up by explicitly notifying the primary distributor with a formal request to have my song(s) removed from the site. The distributor cooperated (and even provided the proper links to make the request). Within 48 hours; all the work was removed (including instances of work on most of the affiliate distribution sites.)
On rare occasion; an affiliate distributor might not have 'gotten the memo' from the primary distributor; to remove your work (Breaking ties with the principle agent; being the foremost likely reason...) You can simply send a direct request to each affiliate for the removal of your work. However; almost as if pulling teeth from a T-Rex...be prepared to prove your ownership and Copyright claim of the work. This is the part where you realize that copyright registration really pays off and helps (when you ..."must move faster.").
Legal Monsters Are Damn Ugly...
Yes; that's right...If they are officially led to believe that you are making a false claim...there is real possibility that they will assume you are taking legal action for infringement. In that case; they might be inclined to run a pass-interference and crush you instead... (with a counter lawsuit; in the name of protecting their licenses to distribute. ) But not before you are given a chance to reconsider your claim.or check the box stating you understand the can of whip-ass you are about to open. Moral of the story... Register your work...
Some Myths and Some Truths (#3)
"This song don't have a horn...So, it's not a copied unicorn."
Uh...Clones is clones; is clones; whether they using one or all of the same horsey bones...
Plagiarism
Plagiarism of an artist's composition (music and or lyric) is very common; albeit usually unintended.
If you are shredding guitar solos in a style; which Van Halen would approve of; that does not necessarily mean you plagiarized his work. It does suggest that you are heavily influenced by his work; which in turn, might tarnish your appearance of commercial originality. Most responsible producers would never give that a release-pass.
However; If within your song; you execute a Van Halen melodic solo; conspicuously note for note (whether or not you are intentionally trying to sell it as your own); you would be committing plagiarism. Again; what responsible producer in his/her right mind would allow it to be released?
Plagiarism Is Not So Much a Subtle Instance...
Songs which are 'inspired' by other songs are not the same as copy-catted songs. The difference is usually evident in how blatant and obvious the plagiarism in the copy-catted song is. The weird thing... Most every songwriter goes through this . We're inclined to selectively forget that we might have heard a delicious lick; hook; melody; chorus somewhere else before. Have you ever listened to a song that moved you so much ...that you got pangs of anger and depression; because you didn't write it? Yeah...me too.
When Radio Head came out with "Karma Police" (at Time 01:18); if you listen closely to the middle 8/bridge piano melody; Its roughly four(4) bars of uncanny resemblance to the Intro -piano melody of the Beatles song: "Sexy Sadie"(at Time: 00:00). However; since the texture; arrangement; tempo; short duration and context do not explicitly replicate the Sexy-Sadie tune "per-se"; the similarity is largely coincidental. Listener interpretation becomes subjective and may be discerned differently per each listener... In other words; the similarities of the two song portions are not compelling enough to convince the listener (or a court) that any plagiarism had occurred.
Both songs in these examples are brilliant in their own right , and were; no doubt; inspired by songs of their predecessors. And so...
"A great artist borrows from other artists; A genius steals from them..." - Pablo Picasso (If you thought this quote was from some other author ...You've proved my point...)
Copy-Catted Songs; Patently Obvious
Consider the case of Sam Smith; who plagiarized Tom Petty's song ("Stay With Me" vs. "I Won't Back Down") or Robin Thicke, who plagiarized Marvin Gaye's song ("Blurred Lines" vs. "Got to Give It Up") I'm not even gonna go down the runway carpet of Led Zepplins' Hall of Wiener-Dog-Ballooning fame when they scraped the panel of rock standards of the industry... (Check out the fun trivia in the Links of Interest at bottom of this article.)
Sampled Songs and Their Legal Implications:
At one point; somebody finally figured out "Why not merge a sample of my hero's song with my own song..? All i gotta do is pitch the Idea to my hero and get his/her permission to use the sample..."
The successful birth of Hip-Hop sampling occurred in Bronx New York; as far back as the 1970's. We saw it mushroom-cloud during the 1990's. Among things; It opened the door to new ways to exercise copyrights over 'derivative' works. Using other peoples' work to augment your work was no longer deemed to be plagiarism; as long as you obtained permission (and licenses) ; paid the due royalties and fees... and credited the authors/copyright holders;
All of this begs the question: Is any song worth fighting over? Absolutely; IF it's a money maker. Keep in mind; these lawsuits are usually focused on songs that demonstrate mass appeal (usually after the infringement occurred and it is shown to garner significant revenues) . Sad to say; Most Lawyers won't even touch a case that doesn't yield a large payoff.
Some Myths and Some Truths (#4)
"My Copyright is registered. Where the hell are my royalty checks?"
Mechanical Royalties-Pay Outs
There is another misconception, which suggests that a registered copyright guarantees that its owner will be paid all due royalties, for the use of the owner's song. Sort of... but not really... While a registered copyright can definitely prove your ownership of the song (and even put you in the seat of a record-label's bargaining table); a registered copyright itself is not a tool of enforcement or guarantee of payment for use of your work. Just ask any one of the thousands of starving musicians out there, who actually own a registered copyright.
Strictly speaking; proper 'rights' to royalties are backed in accordance with statutory governance; but they are executed and paid through legal, enforceable business agreements. (Contracts are drawn up between artists and associated agencies. Those agencies include record labels and music publishers).
Another force of support comes through Artists' membership-subscriptions to licensing entities; such as: BMI; ASCAP; or SESAC ,which contribute to a reliable management and payment of royalties to artists. (And also, various musicians' unions)
Speaking of Royalties; How About That 'Controlled Composition' (Contract Clause )
Many recording artists may not be familiar with the Controlled Composition Clause within a label's contract. The clause is a legal way for a record-label to maximize its own profits off of an artist's existing mechanical royalties. (Specifically, the composition portion of the sound recordings).
The clause places a limit on the number of songs (in a specified album or project ) which the label will pay royalties on. The clause also reduces the calculated default payment amount of those royalties.
In order for the clause to go into effect; the publisher/artist must sign the full contract, which contains that clause. The clause itself does not necessarily require that the publisher or artist surrender or relinquish exclusive mechanical rights and/or ownership of the composition (Unless the contract specifically stipulates it).
I'm pretty sure that controlled composition clauses explain some of the contempt, which many artists hold against labels. So, when negotiating a contract agreement with a label; It bears repeating...Consult an attorney before you sign anything.
I have compiled; what I think might be some pretty useful links. (Bookmark this article for future reference) . YOUR FEEDBACK will be greatly appreciated.
Copyright Administration
The U.S. Library of Congress
Copyright Definitions and Explanations
Compendiums
1) Publication
Circulars
Copyright Forms & Applicaton Eligibility Requirements
1) Standard Form
2) One Work by One Author
3) Group of Unpublished Works (GRUW)
4) Group Registration of Works on an Album (GRAM)
Additional Links of Interest
U.S. Copyright Law: Copyright Alliance
Chinese Copyright Law: Copyright Context in Hong Kong
Canadian Copyright Law: Office of Intellectual Property-Guide: (Canada)
What Constitutes Plagiarism What Constitutes Plagiarism
Ways to see if you plagiarized a melody: 9 Ways to Know...
How Do They Detect Plagiarism: AI Advancements
Copyright Cases: Top Copyright Cases in Music History | Led Zepplin Vs Spirit
DISCLAIMER: This article should not be construed as; or mistaken for legal advice. If you have a question surrounding legal choices or if you need guidance on specific legal decisions; you should consult a licensed attorney. *Images in this article are used with permission and/or under Fair Use.
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