What do Robin Thicke, the Beastie Boys, and Nicki Minaj have in common? All three are currently in the midst of music copyright infringement lawsuits. Although the facts and circumstances surrounding each of these lawsuits are distinct, they are all reminders that as a musician or creative professional working with music, you need to be aware of rights ownership. The good news is, if you need help, there are excellent entertainment lawyers out there who can guide you.
Both Sides Now: Musical Works and Sound Recordings
The U.S. Copyright Act governs the right to reproduce, prepare derivative works, distribute copies, perform and display works that are sufficiently original and that fall under the following categories: literary works, musical works, dramatic works, pantomimes and choreographic works, motion pictures and other audiovisual works, sound recordings, and architectural works. As you can see, musical works and sound recordings are listed as separate and distinct categories of work and each are afforded their own protection. Accordingly, there are two sets of rights involved each time we hear a piece of music.
The “musical works” category is often referred to as the “musical composition” or the “song.” The musical work consists of the actual notes on the staff. In contrast, the “sound recording” refers to the audible performance of the written notes.
Protection: The Suspenders and Belt Approach
Copyright protection immediately attaches to any of the categories of work listed above once the work is “fixed in a tangible medium of expression.” In other words, the work must be sufficiently documented on some physical or digital platform. The documentation can be on a piece of paper, a napkin, a computer program, it doesn’t matter. This means that you do not need to mail yourself a copy of the composition or recording! That approach to protection is what we call a “copyright myth.”
Although protection is automatic, registration in the U.S. Copyright Office is highly recommended because it confers three important benefits to the registrant. First, the Copyright Office houses a database that is a great resource for individuals gathering information in order to license a musical work or sound recording. Second, registration of the work within ninety (90) days of publication will allow the registrant to seek statutory damages in the event a third party infringes the registrant’s musical work or sound recording. Statutory damages, or the financial remedies established by the Copyright Act, are usually much greater than the alternative, which is based on actual damages. Third, copyright registration allows a prevailing plaintiff in a copyright infringement lawsuit to seek attorneys’ fees. Attorneys’ fees can level the playing field if the plaintiff is a struggling artist and the allegedly infringing defendant is bankrolled by a major entity.
Whose Rights Are They Anyway?
Now that you understand the importance of registering your copyright, you need to know what information to put on the registration form. Amongst other questions, the Copyright Office asks the applicant to identify both the author and the owner of the work. The author of the musical work is the individual(s) that actually wrote the notes on the page. In contrast, every member that performed on the sound recording is technically an author. The drummer, singer, guitarist, and engineer, and others, will have rights in the sound recording.
The author is also the owner, unless there has been a transfer of rights through an assignment or the work was done as a “work for hire.” A work-for-hire relationship arises when an employee is creating work within the scope of his employment (this comes up a lot with graphic designers or at advertising agencies) or if the parties agree, in writing, prior to the commencement of the work that it will be a work for hire. The nuances of a work-for-hire agreement are outside the scope of this article, but should definitely be on your radar.
The copyright can be registered at www.copyright.gov for a fee of $35.00. Informational articles labeled “Circulars” are available on that same website. The Circulars are a great resource for you to learn more about the registration process.
Once you have your music protected, you can confidently load it onto your preferred digital streaming service. Although protection doesn’t prevent anyone from stealing your music, it arms you with ways to reclaim your work and penalize the offender if someone does.