Music Business 101 - Copyright Registration | GrindEFX
In the last article I discussed the basics of copyright – what it covers, how to get a copyright, what you can do once you have a copyright, etc. If you recall, in nearly every country, copyright protection manifests automatically as soon as an original work is in fixed form.
But you’re also probably aware that you can register a copyright in the United States. I’ve seen a lot of confusion about this, so I’m going to try to lay it out in more detail.
Disclaimer: I am not a lawyer. Anything in this post is for informational purposes only - if you have specific questions, seek out the counsel of a practicing attorney.
Copyright vs. Copyright Registration
Getting a copyright and registering your copyright are two entirely separate things. Getting a copyright is automatic. In the US, and nearly every country in the world, once you put your music, writing, artwork, or whatever into a tangible, fixed form (like a computer file), you have a copyright.
That’s a very big point so read that last paragraph again because I see most of the confusion about copyrights and registration coming from not understanding that point.
Registering your copyright, as I said, is an entirely different matter. Outside of the US, most countries don’t even have an official government registration of copyrights. But the United States still holds on to having a registration process that authors and musicians can take advantage of.
Important! - Registration fees increased on August 1st. Electronic registration is still the best way to go, both in price and processing time. Second is using the universal Form CO. If you somehow manage to get your hands on the old PA or SR forms (only available by request at the Copyright Office), be prepared to pay more than the other two options – and be prepared for a much greater processing time.
Benefits of Registration
So why would you want to register your copyright? Copyrights are automatic, right? Sure thing! Registering your copyright merely provides certain additional benefits. Most of these are only benefits you would see if you ever sued someone for infringing your copyright.
The US Copyright Office lists the following benefits of registration:
- Registration establishes a public record of the copyright claim.
- Before an infringement suit may be filed in court, registration is necessary for works of US origin.
- If made before or within five years of publication, registration will establish prima facie evidence in court of the validity of the copyright and of the facts stated in the certificate.
- If registration is made within three months after publication of the work or prior to an infringement of the work, statutory damages and attorney’s fees will be available to the copyright owner in court actions. Otherwise, only an award of actual damages and profits is available to the copyright owner.
- Registration allows the owner of the copyright to record the registration with the U. S. Customs Service for protection against the importation of infringing copies.
Probably the biggest benefit relating to an infringement lawsuit is that you cannot sue someone without a copyright registration. I know, it seems kind of silly to say you don’t need to register your copyright to get protection, but you can’t do anything in court about it without a registration. That’s just how it works.
The second biggest benefit is the establishment of prima facie evidence of ownership and date of creation. That means that if you sue someone for copyright infringement, your registration certificate is all you need to show the court that you are the owner of the work in question, and that it was created on the date listed on the certificate. If the defendant wishes to challenge any of that, he has the burden of proof - in this case a very high burden.
Important! When is the effective date of a copyright registration - the date the Copyright Office receives your application, or the date the Copyright Office completes the registration process for your application? Good question! Unfortunately, courts are split on this question. Some take the first approach, some take the second. With the time-sensitive nature of many of the registration benefits, it’s very important to be aware of which rule the venue you are suing in follows. A good copyright lawyer is highly recommended if you have questions about this.
Proving Ownership and Poor Man’s Copyright
Many people often ask how to prove ownership of a song or other work if someone else has plagiarized it. The answer is the same as any other case – evidence. There is nothing special about copyright infringement and what types of evidence are needed to prove ownership. Registering your copyright, however, goes a long way in proving ownership. As you can see above, it establishes prima facie evidence of your ownership – meaning that you don’t need any more evidence than your registration certificate as proof. (People also ask what happens if someone swipes their song and registers a copyright as if they were the original owner. In that case, not only would they be liable for copyright infringement, but also fraud on the Copyright Office and probably state and federal unfair competition and misappropriation causes of action, to name just a few.)
But this belief in “special” evidence for copyright ownership leads to belief in the “Poor Man’s Copyright.” Poor Man’s Copyright refers to any practice besides official registration that is used to preserve evidence of ownership of a copyright – like mailing a physical copy of the work to yourself and keeping it unsealed. The idea is that, if you ever find yourself in court,you can pull out the unsealed envelope - which was stamped with the date it was mailed - and dramatically open it in front of a judge, proving that you created the work on the date you said you did.
A couple things are wrong with this scenario. First, this type of evidence is very easy to forge (you could mail an unsealed envelope to yourself and keep it around until its needed.) More importantly, if you’ve been paying attention, you’ve noticed that you can’t even get into court without a copyright registration. And, a copyright registration provides prima facie evidence of your ownership - making any additional evidence mostly unnecessary.
I’ve seen online services that claim to provide private “registration” services for copyright owners - upload your song, and it will be “time-stamped” on a “secure server” to provide evidence of ownership and date of creation. Basically, these services are providing a high-tech version of the Poor Man’s Copyright. Again, pretty much unnecessary if you ever find yourself in court. I have yet to find a single case where any version of the Poor Man’s Copyright was needed or used successfully to prove ownership and date of creation. If you know of one, I’d be happy to hear about it!
Important! This section applies only to musicians in the United States. In other countries, especially ones without a government registration process, the Poor Man’s Copyright might provide some benefit in the event of an infringement lawsuit. The Jamaican Intellectual Property Office website, for example, recommends this method for establishing proof of ownership and date of creation.
In many other countries, registration is not required in order to protect your copyright in court. A lot of countries don’t even have a registration process like the one in the US. Some do, primarily for public record and evidentiary purposes. You can look up your country’s copyright laws to see what sort of registration process is available in your specific country. (Check out the links in last week’s post on copyright.)
But what if you’re not a US citizen, yet you are releasing your work in the US (pretty much a given if your work is online)? Do you need to register in the US to protect your copyright?
Under the Berne Convention, “foreign authors are given the same rights and privileges to copyrighted material as domestic authors in any country that signed the Convention.” In the United States, this means that foreign authors are not required to register to receive many of the benefits of registration - including the ability to sue for copyright infringement. A foreign author may still register if he wishes (to establish a public record, for example).
Important! While registration is not required for a foreign author to sue for copyright infringement in the US, it probably is required in order to seek statutory damages and attorney fees. The same time frame for registration applies to foreign authors. This is probably the biggest reason a foreign author should take into consideration when deciding whether to register her copyright in the US. Again - check with a lawyer!
- US Copyright Office Circulars and Brochures - these documents contain a wealth of information about the registration process and should answer many questions that pop up.
- Volunteer Lawyers for the Arts (New York) - Contains a wealth of information and links about copyright and other legal issues relating to musicians and artists.
- VLA National Directory - National directory of organizations that provide low-cost and pro bono legal assistance for musicians and artists. A good place to start if you think you may need an attorney but don’t know if you can afford one.
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