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13 March 2012

Copyrighting Basics for Musicians

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Disclaimer: I am not a lawyer. The following information is not legal advice.

Do you HAVE to copyright your music with the U.S. Copyright Office to protect your music?

Short Answer: No

Copyright is created when the work is fixed in a tangible form. However, if you wish to file a lawsuit claiming copyright infringement, you must first register the work.

SHOULD you copyright your music with the U.S. Copyright Office?

Short Answer: YES!

The advantages of copyright registration with the U.S. Copyright Office are:

  1. Copyright registration is public record.
  2. Copyright registration grants a certificate of registration to the copyright owner.

If a dispute arises after a work is registered, the owner may be eligible for statutory damages and attorney’s fees in successful litigation vs. just actual damages and profits if the work is not registered. If registration occurs within 5 years of publication, it is considered prima facie (presumed true unless disproved) evidence in a court of law. Additionally, the owner of a registered copyright can also record the registration with the U.S. Customs Service for protection against importation of infringing copies.

What is a Copyright?
Article I, Section 8 of the U.S. Constitution grants the Congress the 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the exclusive right to their respective writings and discoveries;” By statute, a copyright protects a published or unpublished original work of authorship, fixed in a tangible form (e.g., lyrics typed in a Word document, hand-written guitar tabulature, sound recording on a CD).

Per Circular 1 published by the United States Copyright Office, Copyright is a form of protection provided by the laws of the United States (title 17, U.S. Code) to the authors of “original works of authorship,” including literary, dramatic, musical, artistic, and certain other intellectual works. Section 106 of the 1976 Copyright Act generally gives the owner of copyright the exclusive right to do and to authorize others to do the following:

  • To reproduce the work in copies or phonorecords;
  • To prepare derivative works based upon the work;
  • To distribute copies or phonorecords of the work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
  • To perform the work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audio-visual works;
  • To display the work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audio-visual work; and
  • In the case of sound recordings,* to perform the work publicly by means of a digital audio transmission.

*Note: Sound recordings are defined in the law as “works that result from the fixation of a series of musical, spoken, or other sounds, but not including the sounds accompanying a motion picture or other audiovisual work.”

What is a “Phonorecord”?
Per Circular 1: A sound recording is not the same as a phonorecord. A phonorecord is the physical object in which works of authorship are embodied. The word “phonorecords” includes cassette tapes, CDs, and vinyl disks as well as other formats.

Condensed Musician’s Copyright Definition
So to paraphrase…As a musician, if you have created a unique work (one song or collection of songs), you have the right to register that work with the U.S. Copyright Office. Two components of the work may be registered: 1) the composition (sheet music, song structure) and lyrics, and 2) the sound recording. By registering with the U.S. Copyright Office, you are granted an exclusive right to make and sell sheet music and CDs, remix the song(s), perform the song(s), and transmit the music digitally. Exclusivity is the important component. If someone else would like to sing, perform, record, transmit, etc., your song(s), under Copyright law they must first receive your permission (or in some cases just notify you and pay statutory royalties) to do so.

Registering a Copyright
You can register your music on-line through the U.S. Copyright Office website. The current on-line fee is $35 per registered work (one song or a collection of songs). This tutorial explains the registration process.  You can click on the picture below to go to the U.S. Copyright Office website.

Information Overload
There is a LOT of information available on the internet regarding copyrights. I recommend you start with the information available on the U.S. Copyright Office website, since your goal is to register a copyright with that office. Here’s a link to the U.S. Copyright Law. Here’s a link to various Information Circulars and Factsheets that may be useful to you. 

Copyright Law is complex. Unfortunately, even on some very reputable websites I found information that contradicts the publications provided by the U.S. Copyright Office.