Q & A Regarding Important Information For Musicians and Copyrights, How Safe Is Their Original Work?

By Rick Michaud
Example a band has 12 songs licensed to 6 different licensing companies resulting in the original copyright by the authors and 6 different registrations by the licensing companies who have re-titled the songs.
For example, if one learns of the infringing activity and institutes a legal action before the copied work is published or offered for sale, the monetary damages may be non-existent.

One of our readers has asked the following question:

A musician obtains a copyright on a sound recording (music and lyrics) when it is placed on a tangible medium and includes the phrase "copyright/authors/name/date of creation/All Rights Reserved.

Registering the copyright does not give you a "copyright" that carries more legality than the first scenario EXCEPT that registration allows you to file suit against possible infringers and claim punitive not merely actual damages.

Registration does not automatically procure you a copyright. Comment?

Answer:

Copyright inures to the benefit of the author, absent a license, assignment or work-for-hire agreement that can give some or all of the bundle of rights associated with copyright to another entity. It is not necessary to mark the work as being copyrighted and rights are not lost if the work is not marked, although it is a good practice to do so.

Registering the copyright does not give you a copyright, an author of a work has copyright as soon as the work is affixed on a tangible medium, e.g. written down, recorded, performed, etc. One cannot sue in federal court (there is no state court cause of action for copyright infringement) for copyright infringement without having obtained a copyright registration or applied for registration and been denied.

In addition, if one applies for copyright registration within 90 days of publication of the work, it is possible to claim statutory damages in an infringement action. This can be extremely important as damages can be difficult to prove, or there may be no monetary damages resulting from infringement.

Recognizing this, Congress made provision in the copyright statute for statutory damages which allow an infringed upon party to elect such damages when proving actual damaged may be difficult or impossible.

Accordingly, registration early on can prove quite valuable. It is also possible to obtain separate copyrights for lyrics and for music.

One of our readers also asked this question:

Can you address the issue of non-exclusive music licensing agreements wherein sound recordings are licensed to multiple companies and each company demands that the song title be changed in some manner so that the licensing company then re-registers the song as a different recording claiming the original authors along with the licensing company now owns the copyright.

As I am sure you know this is a very common tactic and the artists who refuse to use a lawyer to negotiate the contracts just agree and sign as long as they "get their music out there".

Answer:

As an initial matter, it is important to have any license agreement reviewed by an attorney having expertise in the appropriate field.

In general, an author can only get a single copyright for one work. If another, independently authors the same or a very similar work, then that author would also be entitled to a copyright. Infringement would be governed by which author's work, the accused infringer copied.

In order for another valid copyright registration to issue, the original work must be changed sufficiently such that enough "originality of authorship" is incorporated into the work. Merely, changing the title would be insufficient. One can license one's copyright non-exclusively to whomever the copyright owner wishes and however many times the owner wishes.

The copyright applied for by the licensing company, would be specific to the version of the song recorded or to a particular artist's performance. One must be sure that the license is specific enough to identify acceptable uses and changes and also that all of the copyright owners are signatories to the license.

Recently, there have been lawsuits involving rap artists that rap over an old melody. If they do not have permission to use the old melody from the copyright owner of it, then they are infringers.

At Michaud-Kinney, we work closely with our clients to develop an intellectual property procurement and portfolio management strategy to meets our client's business goals and objectives. This proactive approach is driven by strong client relationships and innovative