Music Business 101 - Copyright Registration

Guilty J

www.GuiltyJ.com
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.

Foreign Authors

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!

More Resources

  • 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.
Previous posts in this series

 

Code Black

Call Da Bomb Squad!!!
Great stuff! i will make sure not to miss upcoming articles. and i am in south africa so i will find out exactly how everything operates over here
 

Caesar Balance

Redefining Aristocracy
Oh man this is a great article again. Thanks Galactic and Guilty J.

@ Code Black. Yo, what part of South Africa you from homeboy?

I'm from Jozi dude.
Awe.
 

pharaoh1tay

New member
Sup y'all

How many instrumental tracks can I place for copyrights? Like can I submit 15 tracks on a CD and call it a day?

Thanks
 

FPDataminer

New member
Problem with the copyright office is that it takes at least 4 months. Submission <> Acceptance of submission.

BMI offers free registration but you have to be a BMI member.

What about services offered by private companies?
 

galacticboy

Registered Loser
Problem with the copyright office is that it takes at least 4 months. Submission <> Acceptance of submission.

BMI offers free registration but you have to be a BMI member.

What about services offered by private companies?

That's only a problem if you're in a jurisdiction that only grants subject matter jurisdiction for an infringement suit after a determination on your application AND an infringement occurs before that determination. Most jurisdictions follow the rule that jurisdiction is predicated on mere acceptance of the registration materials by the Copyright Office (a rule that is more in line with the governing statute).

BMI does not do copyright registration.

Private companies do not do copyright registration. They ostensibly provide evidence of date of creation - evidence which, in the US, has yet to be tested by the courts. Regardless, you can't bring an infringement suit in the US without registration through the Copyright Office, which in and of itself establishes prima facie evidence of date of creation and ownership, so the value of what private companies provide is negligible at best.
 

WatchWhatHappens1204

"Now you's can't leave."
damn... i want to find out the cost of such activities... this thread makes all the other information so much easier than even the original copyright info provided online.

possible to get a price check on aisle 5?

do they accept data CDs? (<<< that's that slick $hit right there)
 

galacticboy

Registered Loser
damn... i want to find out the cost of such activities... this thread makes all the other information so much easier than even the original copyright info provided online.

possible to get a price check on aisle 5?

do they accept data CDs? (<<< that's that slick $hit right there)

http://www.copyright.gov/docs/fees.html

Online registration - $35
Form CO registration - $50 (The new, universal form)
Form SR/PA registration - $65 (Older forms, slowly being decommissioned)
 

raspy123

YoUnG WhitE
I need help understanding the online copyright form. I'm trying to copyright music online and I need help with understanding it. Am I supposed to fill out individual titles for my instrumentals on the registration page and upload them later on, or am I to make one (1) general title of my instrumentals on the "Title of Works" page and upload my instrumentals later on under that one general title?
 

hilos20

New member
So I have a question, I've got a friend who has problems with giving me mp3 copies of works that we've done (which most of the time I do about 80% of the track). On a few seperate occasions he's copywritten works that we've done but I think he just copyright's them under his name. Why is it that I feel like he's screwing me in the long run? What if he sells one of these tracks? How do I even know? Do I continue to work with him? Do I tell him he needs to give me copies of sessions and mp3's when even I leave the studio to be safe? He's a little shady and I just need to know if thats how ISH should be done or not? What do you dudes think? I'll be more then happy to post a track so you can see I'm not garbage. lol
 
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