As an artist, your creative works are the lifeline of your business. By protecting them through copyright registration, you can control how they're used and ensure that you receive the income from them that you deserve.
To make the system function for you, you have to understand how it works. To that end, I'll explain a number of important music-copyright issues, such as what constitutes a copyrightable work, how to properly register a work, what rights you have if you're hired by someone to write a song, and what happens to your copyright when you die. But remember, if you have copyright questions, consult a qualified attorney; this article should not be considered legal advice.
Just the Facts
In its most rudimentary definition, a copyright is actually personal property. But like trademarks and patents, a copyright is regarded as intellectual property, which is created from the minds of its authors. Copyright protection applies to literary works, musical compositions and recordings, dramatic works, choreography, and visual arts.
When you own the rights to a song, you control its use. Ownership gives you six exclusive rights: the right to make copies, create derivative works and revisions, publish and distribute your creation, perform the work in public (or display it, in the case of visual art), and, in the case of sound recordings, perform it in public through a digital transmission (currently this refers to songs played on the Web). As an owner, you can even assign the whole copyright or shares of it to others.
For a song to be copyrightable, it must meet three criteria. First, your work must be fixed in a tangible form — it must be written down or recorded, so others can perceive it. Second, it has to be original, meaning that someone else hasn't already created it. And third, it must demonstrate at least a modicum of creative expression.
In the Works
Musicians, songwriters, and recording artists typically encounter two types of copyrightable work: the first is the particular arrangement of notes and lyrics; that is, the song itself. This is usually referred to as a musical composition, an underlying work (when referenced in relation to a sound recording), or just a song.
A song may have multiple writers, lyricists, and arrangers, and the copyright can be split among them on a percentage basis. If you are writing with a partner or you involve others in your creative process, be sure to discuss early on how or if you will divvy up the copyright. Some songwriters assign all or a portion of their copyright to a music publisher who has agreed to market the song for them.
The second type of work you need to protect is the sound recording itself. A song may be recorded by any number of people, so each recorded rendition is copyrightable. Even if you write as well as record the song, you need to protect your composition and your recording with separate copyrights. And, as with a musical composition, there may be others involved in the recording process, such as producers, who are entitled to a portion of the copyright. When an artist is signed to a record label, the label often retains the copyright of the master recording.
Register for Cash
Let's say you've composed a song, gotten it exactly how you want it, and have written it down or recorded it. It's not plagiarized, and it has some creative spark. Under current U.S. copyright law, satisfying these criteria alone means you have a natural copyright and your work is protected. It's advisable, however, to register your song with the Library of Congress as soon as possible to establish a public record of it. In most cases, it must be registered before you can sue someone for infringement or collect compulsory mechanical-license royalties (for more on licensing, see “Working Musician: Show Me Your License” in the September 2006 issue of EM, available at www.emusician.com).
The Library of Congress Copyright Office classifies your new song composition as a Performing-Art Work. Fill out Form PA to register a musical composition only. This is useful for artists who are strictly songwriters. Send the completed form, a nonreturnable copy of your material, and the $45 registration fee to the Library of Congress Copyright Office in Washington, D.C. For compositions, acceptable materials include a manuscript (lead sheet, full sheet music, or orchestrations) or a phonorecord (tape, CD, MP3 on disc). Make sure you include the entire song — everything you want protected — in your submission.
Your registration becomes effective when the Copyright Office receives it. In a few months you will receive a certificate of registration.
Those who are both writers and recording artists may register their composition and the accompanying recording at the same time and for one fee by using Form SR. In that case, you would send your song on a phonorecord only.
Also use Form SR to register sound recordings only (ideal for performers who don't write their own music). The application process and the fee per submission are the same as for musical compositions. Remember that the material you send for a sound recording must be a phonorecord and can't be a manuscript or audiovisual work such as a movie, music video, or other multimedia format.
All Together Now
Prolific songwriters and performers often worry about the cost of multiple registrations. At $45 a song, it definitely adds up. One option is to register music as a collection for one filing fee, using Form PA (for musical compositions only) or Form SR (for compositions and their recordings, or recordings only). According to the Copyright Office, all the songs (and recordings, if applicable) in a collection must have the same copyright owner(s). Collections of songs don't have to be an entire album; they can be partial albums, suites, movements, or simply a gathering of your music.
Give your collection a title to appear in the Copyright Office's records. While you can also specify the individual titles within the collection, those will not appear in the Office's records unless you register them separately or submit a supplementary registration (Form CA).
Be sure to read the Office's circulars on musical compositions (Circ. 50) and sound recordings (Circ. 56) for details. The easiest way to access forms and circulars is by visiting www.copyright.gov/register/performing.html for musical compositions, or www.copyright.gov/register/sound.html for sound recordings. You can also request forms by calling (202) 707-9100.
Time After Time
The legal duration of a copyright has changed over the past century. Calculations for copyrights registered before 1978 are confusing, so I'll focus on the present here.
Copyrights registered after January 1, 1978, last the life of the composer plus 70 years. The composer can pass a copyright along to his or her heirs or will it to a third party. Subsequent owners can do the same.
If you are commissioned to create a musical work or recording, the rules are slightly different. Be sure to have the requirements of the job outlined before you start so that there are no surprises later. If, say, an advertising agency hires you to write a jingle, the company will likely have you sign a work-for-hire agreement stating that it owns the exclusive rights to the work you create. However, some people, such as film producers, may let you keep all or part of your copyright, allowing you to exploit the work later and benefit from future licensing and performance income.
Get the terms in writing while you're negotiating your fees so you can charge accordingly. In the case of a work for hire, the copyright duration lasts 120 years from the work's creation or 95 years from its publication, whichever ends first.
The Digital Age
Musical compositions have long enjoyed protection for public performances. Songwriters and publishers belong to performing-rights organizations like ASCAP and BMI that disburse monies collected from radio and TV stations, venues, and more. Sound recordings are not treated in the same way, but they do receive limited public performance protection. The Digital Performance Right in Sound Recordings Act (1995) and the subsequent Digital Millennium Copyright Act (1998) give sound recording owners a public performance right through digital transmissions. While this exempts digital radio transmissions from an FCC broadcaster, it does provide some protection for recordings played on subscription services and those that are streamed and downloaded.
U.S. copyright law has changed dramatically over the past 100 years and will continue to do so as new technologies and ways of creating, performing, and transmitting music are embraced by the public. Knowing your rights as a copyright holder and how to protect them will help you safeguard your works so that you can continue to be the beneficiary of your creative labor.
Fran Vincent is the president of Retro Island Productions, Inc. (www.retroisland.com) and has taught music and entertainment-industry courses at the University of Miami.
Be sure you get a copyright notice for all works you publish on paper, all Web sites, and all phonorecords. Although no longer required by law, that is still an important step in protecting your work and providing notice to anyone accessing your music.
Put © THE YEAR and YOUR NAME (and/or PUBLISHER) — for example, “© 2007 Joe Artist/XYZ Publishing” — on sheet music, lead sheets, lyric sheets, and liner notes both on paper and on the Internet.
For your sound recording, put Ⓟ THE YEAR and YOUR NAME (and THE RECORD LABEL) — for example, “Ⓟ 2007 Joe Artist/123 Records” — on liner notes, CD labels, covers and inserts, and Web pages on which your music is downloaded or streamed.
It is typical to put a © and a Ⓟ on the back cover of your album and CD label. This shows that you or your record company owns the rights to not only the sound recordings but also to the collection and the order presented on the album. For example, “© & Ⓟ 2007 Joe Artist/123 Records.”