Common Copyright Questions
1. How does my song become copyrighted?
Do not confuse acquiring a copyright with registering your claim to copyright. You acquire copyright (legal protection of the law) automatically when your work is "created," which is defined as being "fixed" in a copy or recording for the first time. For example, the moment that you lift your pen off the finished lead sheet or turn off the tape recorder after completing taping your composition, the song is deemed "created" and the copyright begins.
Registration of your copyright is recommended (but not required) and is accomplished by filing a Form PA with $20 and one copy of your unpublished song on a record, tape or lead sheet, two copies if the song has been published. Song lyrics without music can also be registered, whether they are published or not. (A song is considered to have been "published" when lead sheets or printed copies of the music, or copies of a record or tape containing the song, are distributed to the public by sale or other transfer of ownership, or by rental, lease or lending. Public performance of the song, however,does not by itself constitute a "publication.")
Registration is effective when the Copyright Office receives your application, copies and fee, not when you receive your certificate back, which could be as long as four months later. Although it is not necessary, if you send your Form PA with the proper copies and fee to the Copyright Office by certified mail, return receipt requested, the date stamped on your certified mail receipt can serve as evidence of your effective date of registration and you can thereafter send your song to prospective publishers without worrying about proof of registration in the event of infringement before you receive the actual certificate.
Copyright registration forms can be obtained by writing to the Copyright Office, Library of Congress, Washington, D.C. 20559 or by calling the Forms Hotline at (202) 707-9100. This number operates 24 hours a day and allows you to leave a recorded request for forms you need.
Registration of your copyright is usually necessary in order to go into court and sue for copyright infringement, has a bearing on the award of certain damages and may carry some weight as proof of time of creation, but it is not a condition to the existence of your copyright. Registration of a published work also fulfills the legal requirement (with a few exceptions) that two copies of every work published in the U.S. be deposited in the Library of Congress for its collection within three months of publication. Failure to do so can result in fines, but will not cause you to lose any copyright protection.
Deposit (accomplished simply by mailing the necessary copies to the Copyright Office indicating they are for deposit) is required even if no registration is made of the work,but registration as indicated satisfies deposit.
2. Can I register more than one work at one time for one fee?
Yes. The Copyright Office will accept registration of an unpublished collection of works for a single $20 fee if all of the following requirements are met:
a) You put all the works together in an orderly manner with a single title. (Any title describing the collection is acceptable, even one as general as "The Works of [Your Name].") If you send lead sheets, you should fasten them together or put them in a folder. However, you can send a record or tape containing all of the songs instead.
b) The copyright claimant for every selection and the collection is the same.
c) All of the selections in the collection are by the same author or, if they are by different authors, at least one of the authors has contributed copyrighted material to each selection.
Only the title of the collection, not the titles of the individual works, will appear in Copyright Office records. However, once you receive the copyright registration certificate for the collection, you can then file Form CA, listing the individual titles in the collection, and for another $20, all of your works will have individual registrations.
Form CA is also used to correct mistakes on an earlier registration.
A published collection may be registered under its title for a single fee if all of the works are owned by the same copyright claimant.
3. Must I still put a copyright notice on published copies of my song?
No. Putting a copyright notice on visually perceptible copies of a work published (publicly distributed) after March 1, 1989 is purely voluntary. Unlike the situation in effect before that date, its omission no longer will cause a loss of copyright protection.
However, if a copyright notice is in fact put on the work when it is published, anyone who is accused of infringing it cannot raise the defense that he was "innocent" and lessen the amount of damages for which he would be liable. Before your songs are published, you might indicate "Unpublished [year] by [Your Name]" on copies of your works to alert prospective publishers as to their status.
Although it is not required, since notice identifies the copyright owner and year of first publication, it is a good idea to include it. Notice should appear in the following form:
[" ©" "(c)" or "Copyright" or "Copr."] [year of first publication of the work] [name of copyright owner].
4. How long does a copyright run?
A copyright that is not registered anonymously or under a pseudonym and that is not in a work made for hire runs for the author's life plus 50 years after his death.
5. If I collaborate with one or more writers, how is the term of copyright measured?
As long as you and your collaborators do not work for hire, the 50-year period is measured from the date of the death of the last surviving collaborator.
6. If someone hires me to write a song for them, who owns the copyright and how long does it run?
For such "works made for hire," as they are called, the employer is considered the author, and the copyright, which the employer owns, runs for either 75 years from the time the work was first published or 100 years from the time you created it, whichever is shorter. (That is the same copyright term for an anonymous or pseudonymous work.)
In order for the work to be considered "made for hire," it must be prepared by an employee in the scope of his employment under a traditional employee-employer relationship, or else it must be commissioned as one of several special categories of works (such as part of a motion picture or other audio-visual work) with there being a written agreement between the parties that it is to be for hire.
Because in a true work made for hire the composer receives no copyright interest that can be assigned to BMI, BMI will pay only a publisher's share of performance royalties on such a work, unless there is an agreement between the composer and his employer which transfers a performing right interest back to the composer. In no case, however, will the writer's share of royalties be paid to the employer.
7. Are song titles copyrightable?
No. However, if a particular title has become so connected with one particular song (such as "Tie A Yellow Ribbon Round The Ole Oak Tree"), anyone else attempting to use it for their song would likely be in violation of property rights in the title which belong to the copyright owner of the first song because of its notoriety.
8. If I have works in my desk drawer that have never been published or registered with the Copyright Office, are they still protected by "common-law" copyright?
No. In 1978, common-law copyright was abolished for all works in existence that were of the kind that could have been registered for copyright. As long as the work was never copyrighted, has not fallen into the public domain and was created before January 1, 1978, on that date a statutory copyright automatically attached to the work for the author's life plus 50 years. If that time period ends prior to 2002, the copyright will run at least until the end of 2002. If the song is published before December 31,2002, the copyright extends to December 31, 2027. These rules hold true as well for works of deceased authors which have not been published or copyrighted or fallen into the public domain.
9. If I assign my copyright in a song to a publisher, can I ever get it back?
Yes. Regardless of anything in your songwriter agreement with the publisher, a work not made for hire that was assigned by you on or after January 1, 1978 can be reclaimed by you (or your copyright-entitled heirs) 35 years after the work is published or 40 years after the assignment, whichever is earlier.
The law specifies the mechanics of giving notice to the publisher in order to accomplish this.
10. How is the copyright assigned?
By written instrument to the party to whom you are making the assignment. You cannot validly make an oral assignment of copyright.
11. Does the copyright in a record protect the copyright in the song, too?
No. The sound recording copyright, registered on a Form SR and indicated on the label by the letter "P" in a circle, is for protection of the sounds on the record and usually belongs to the record company. The song copyright is registered on a Form PA and shown on copies of the work with a (c) or "Copyright" or "Copr." [year, Name of Owner], and usually belongs to the publisher. But if the same persons own the recording and the song, one registration on an SR form will cover both. It is always a good idea for copyright owners of songs being recorded to ask that their copyright notice be carried on the record label for identification purposes. Errors in or omissions of the notice, however, have no effect on copyright protection.
12. What is the difference between a performance right, a mechanical right and a grand right?
Both the mechanical right and the performance right are granted to a copyright owner by law as two of the distinct parts of a copyright. The "mechanical" right is really the right to reproduce a piece of music onto records or tapes. (Non-mechanical reproduction includes such things as making sheet music, for which royalties are paid by the publisher to the composer.) When reproduction of music is made onto a soundtrack of a film or tv show, the reproduction is called "synchronization," and the license that the TV or film producer needs to obtain is called a synchronization or "synch" license.
Mechanical royalties and synchronization fees are paid by record companies and film and TV producers directly to the copyright owner, usually the publisher, or his representative. The Harry Fox Agency, 205 East 42nd Street, New York, New York 10017, (212) 370-5330, represents most of the major U.S. publishers in granting mechanical and synchronization licenses and collecting fees for them from the record companies and producers who need them.
The public performance right entitles the copyright owner to receive royalties when his song is sung or played, recorded or live, in a public place or on radio and television. Such royalties go to both the composer and publisher through their performing rights organization, which grants licenses to perform the music in their respective repertoires to thousands of music users, such as broadcasting stations, hotels, clubs, colleges, restaurants, stores, etc.
The type of performing rights licensed through performing rights organizations are formally known as "small" performing rights, because the performance of the music is "non-dramatic" -- the song is played or sung out of the context of any dramatization of the work. A "grand" right, on the other hand, is the right of the copyright owner to perform or license others to perform his song in a dramatic manner, such as accompanying the performance with costumes, scenery or plot; acting out the lyrics of the song, or, in the case of a piece of music originally written for a musical show, performing the song in conjunction with all or part of the scripted show. All of those activities require a license from the copyright owner separate and distinct from the "small" performing rights license. Performing rights organizations do not license grand rights. At the present time, the music contained on music videos is not considered to be grand right usage, even though certain videos might be considered by some to be "dramatic" representations of the lyrics.
13. When is a mechanical license required to be issued?
Any time a recording has lawfully been made with the permission of the copyright owner, anyone else has the right to make another recording of that work (hence the term "compulsory" license) as long as they pay at least the statutory royalties. But the copyright owner can deny permission to anyone seeking to make the first recording of the work.
14. What are the current statutory royalties for making and distributing phonorecords ("Mechanical" royalties)?
For 1996 and 1997, the mechanical royalty rate is six and ninety-five hundredths cents (6.95 cents) per song for each copy of the record or tape made and distributed, or one and three-tenths cents (1.3 cents) per song for each minute of playing time, whichever is greater. In November 1997, the rate will be determined for the following two years, and a similar determination will be made every two years thereafter.
15. I have songs that were in their first term of copyright under the old copyright law. Do I have to do anything in order to get the additional 47 years of protection provided by the current Copyright Act?
No. Thousands of songs were in their first copyright term under the old law when the current law became effective. In order to receive copyright protection beyond the first term, all works originally copyrighted prior to 1964 had to be renewed in their 28th year or they fell into the public domain.
Unfortunately, many important works lost their copyrights because an author, his heirs or the copyright owner forgot to file the renewal form on time. To remedy this situation, Congress recently amended the law to provide that all works originally copyrighted between 1964 and 1977 will be extended for an additional 47 years automatically -- no registration form needs to be filed in order to renew them.
16. One of my songs fell into the public domain because it wasn't renewed on time. Will the recent changes to the law revive copyright protection for it?
Unfortunately not. Once a song has become part of the public domain, it can be used for any purpose by anyone without the need to pay compensation to the composer or previous copyright owner. However, it probably is still protected in foreign countries, since for a long time most other countries have had a single term of copyright based upon a number of years beyond the life of the author, such as now is the case in the U.S.
17. Now that copyright renewal is automatic, is there any reason to file renewal registration for works?
Yes. A derivative work that was prepared during the first copyright term, or a transfer or license of copyright made during the first term, can continue to be used during the entire 47-year renewal term unless a renewal registration is filed before the end of the 28th year of copyright. This provision could directly affect the right of a composer's heirs or their assigns to renegotiate licenses for the renewal term in line with a U.S. Supreme Court holding. For example, if during the first copyright term a publisher granted a synchronization license to a film producer to use a song in a movie, and later in the term the composer died, if in the 28th year of copyright the song isn't registered for renewal, the film company can continue to exhibit the film with that song in it under the same synch license. However, if the composer's heirs (or their publisher) timely file for renewal, they could terminate that license and require the film company to negotiate a new fee in order to keep the song on the soundtrack and not be an infringer of the copyright.
Also, the recent amendments to the Copyright Act provide that, although Form RE can be filed anytime during the 47-year renewal term, if it is filed during the 28th year of copyright, the evidentiary weight of the registration certificate will be greater. This would reduce the burden on proving ownership of copyright in an infringement suit.
The fee for filing Form RE has been increased to $20.
18. I have works that are already in their renewal term. Do I have to do anything to get the extra 19 years of protection the law provides?
No. The law automatically extended them to December 31st of the 75th year from the original copyright date.
19. I assigned the renewal rights in my song to a publisher when I first wrote it. Do I have to register it for renewal myself in order for it to be valid or can the publisher who owns it do it for me?
The assignment of the renewal term is considered to carry with it a power-of-attorney in the assignee to register the renewal copyright in the name of the author. The renewal registration is still effective if the publisher does it for you.
20. I assigned my copyright to a publisher under a contract that did not mention the renewal term specifically. Did he get it anyway?
No. It is generally accepted that in order for the original publisher to have acquired the renewal copyright, the grant to him had to specify that the assignment from you included copyright renewals. If it did not, you own the renewal copyright and can assign it to a different publisher. However, this only applies to United States renewal rights. Even if the original assignment was silent on renewals, the first-term publisher will continue to control the work for the rest of the world, because of the single copyright term in effect in most other countries.
Even if the publisher were granted the renewal term, if the granting composer dies during the first copyright term, the publisher's U.S. rights are cut off in favor of the composer's heirs, who can make a new grant of the renewal copyright to whomever they choose, or keep it for themselves. If the composer's death occurs in the 28th year of copyright after Form RE is filed, however, the renewal rights remain with the publisher.
21. I signed a songwriter agreement with a publisher some time ago giving him the right to my copyright renewal term, among other things. Since the law would have given me 19 extra years of copyright if I had kept the renewal term, can I get back those 19 years from my publisher?
Yes! If you signed away the renewal term of your copyright before January 1, 1978, the law provides a detailed procedure by which you can retrieve the last 19 years of it, allowing you to make a new deal with the same publisher, assign it to a new publisher or keep it yourself. Be aware that your assignment of the renewal term assigned the full 47 years. The 19 retrievable years must be recaptured specifically as the law requires or the publisher keeps them. Detailed instructions can be found in Circular 96, Section 201.10, available from the Copyright Office.
22. How many bars of a song can I copy without permission?
There is no special number of "free" measures that can be used without authorization. Whether or not an infringement of copyright is committed when a portion of someone else's copyrighted work is taken without permission depends upon whether the test of "fair use" is met. The factors determining if the use is fair include the purpose and character of the use, the nature of the copyrighted work, the amount and substantiality of the portion used in relationship to the copyrighted work as a whole, and the effect of the use on the potential market for or value of the copyrighted work. This is the test that would be used in order to determine whether a "sampled" portion of a song or record constituted copyright infringement.
23. I assigned my copyright to a publishing company who never acquired a recording of my song. I would like to get it back and assign it to another, more active publisher or obtain a recording myself. However, I cannot locate the original publisher, who has gone out of business. Can I go ahead and re-assign the copyright?
Not unless you have a clause in your agreement with the original publisher that requested the copyright in you if he did not acquire a recording after a certain time period that has now passed. If no such clause existed, your assignment to the publisher probably was unconditional, and you have no right to treat the copyright as your own. Even if the company is out of business, the copyright may have been assigned to another publisher or to the owners of the original company. Remember that if you assign the song to a new publisher without telling him you do not really own it, you may be exposing yourself to liability if the original publisher or his assigns discover your attempted assignment of their copyright.
Because of this kind of "lost publisher" situation, it is recommended that you try to obtain in all songwriter agreements you sign an automatic requesting of copyright in you in the event that the song is not recorded within a specified time.
24. What are the penalties for an infringement of copyright?
For each work that the defendant is found to have infringed, the plaintiff copyright owner is entitled to receive its choice of a) the actual damages suffered plus the infringer's profits that were attributable to the infringement, or b) "statutory damages" in an amount between $500 and $20,000 (or up to $100,000 if willful infringement is found), as the court considers just.
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