Copyrights: Your Sword and Shield

Copyright: Your Sword and Your Shield

Perhaps more than any other element in the overlap between business and art that happens in music, the nature and application of copyrights has spawned endless urban legends and confusion amongst musicians. Copyrights are absolutely essential to an artist being able to assert his rights and ownership over his own art, but few truly understand how they work. Once and for all, let’s put the myths to rest and outline the basics of what copyrights are, how an artist obtains one, and why they matter in the first place.

What The Heck Are Copyrights?

Since cavemen first picked up rocks, mankind has asserted ownership over things – i.e. property. A person’s property includes things like houses, cars, instruments, and his other personal belongings. However, centuries ago people realized that they also own things that cannot be picked up or touched. These intangible pieces of property are just as real as a rock or a car, but you cannot necessarily hold them in your hand, such as logos, an arrangement of musical notes, and the goodwill of a fan. Such items are called intellectual property. Copyrights are a type of intellectual property that a person can own, sell, transfer, and use. Most importantly for musicians, copyrights are the first line of defense in protecting their art and provide the surest way to punish those that would steal that art.

When applied to an artist work like a song, the term “copyright” actually encompasses a bundle of different rights, such as:

• the right to reproduce the work (copy it);
• the right to distribute the work (sell it or give it away);
• the right to display the work;
• the right to perform the work; and
• the right to make derivative works (change it into something new or sample).

Under the law, a copyright vests when an artist fixes an original work in a tangible medium of expression. This legal jargon means that all of the rights and abilities described above are owned by an artist when he makes something new and puts in a form that other people can experience. This could be a new story written down on a piece of paper, a new song recorded on a CD or in a digital file, or even a doodle on the side of the page. Notably, copyrights do not protect ideas, names, logos, and information that is not new. They are intended to protect an individual’s expression of an idea in the medium of his or her choosing.

How Do I Get A Copyright?

A copyright is created at the moment it is fixed, i.e. written down, recorded, printed, etc.. For musicians, the moment that a musical note is recorded or transcribed on a page and the lyrics are written down, a copyright is created. That copyright is owned by whoever created it. A common myth is that the musician needs to mail a copy of the words or a CD to himself and never open the envelope. But, as just discussed, the copyright is created and ownership assigned instantly. Notably, neither the myth nor the reality actually registers the copyright, which is examined later in this article.

A copyright notice is used to tell the world that you are claiming this particular work, be it a song, a painting, etc.. The most common notice is the ©, but for a sound recording, an artist should use ℗. Although it is not necessary to add these symbols for anything created after 1989, they add an additional layer of protection. They take the form:

© year of 1st publication. Owner. All rights reserved.

For instance, when I publish this article, I will add to the bottom:

© 2009. Matthew Nagel. All rights reserved.

Obtaining a copyright for a book or a painting should now seem pretty straightforward – just let your creativity take over and put those ideas down on paper. However, music is a little trickier. A recorded song contains three separate bundles of copyrights: the lyrics, the music, and the sound recording of the lyrics and music together. The rights to copy, distribute, display, perform, and change goes along with each separate bundle, and each bundle can be individually sold or licensed. All of these different rights can produce different revenue streams for the musician. Further, understanding the distinction between the three is important for selling, promoting, and of course registering the songs.

For example, the St. Louis rock band Minotaur just wrote a song called “The Maze” and recorded it at Electric Village Studios. Minotaur owns the copyright in the lyrics to the song. It also owns the music that the band wrote for the song. Finally, it owns the copyright to the sound recording made at Electric Village that encompasses their performance of the lyrics and music together. If Minotaur wants to, it can sell the copyright to the words, release the copyright to the music into the public domain for anyone to use free of charge, and collect license royalties from the sound recording.

What Can I Do With My Copyrights?

In the music business, a copyright is the Holy Grail. A valid, enforceable copyright is the source from which sources of income flow. As Minotaur found out, musicians can copy and distribute the copyright (selling the songs to the public), you can let others perform your songs for a fee (cover song royalties and mechanical royalties), and even sell the copyright or part of it. Television and movies pay for licenses to use the copyrighted songs on their shows, while record labels and publishing companies may buy all the copyrights to a song from the songwriters. These are just a few ways that musicians can use their copyrights, and the opportunities to commercially exploit the bundle of rights and abilities granted within a copyright are continually being expanded in new, creative ways.

While everything reviewed in this article can be accomplished without registering your copyright with the government, full copyright protection requires registration. Registration has two main benefits: the shield and the sword. When a musician registers his copyright with the United States Copyright Office (www.copyright.gov), it is like planting a flag in the sand, claiming that particular piece of property and warning away all comers. In short, it announces to the world which musician owns that particular song and informs all other musicians that this particular song already has an owner. This process acts as a shield, protecting the copyright owner from people who would have never known that arrange or verse had already been claimed. However, registration also acts as a sword, allowing the copyright holder to punish those who would steal his song by filing a lawsuit. Registering the song allows him to win statutory damages and attorney’s fees in addition to the actual damages he suffered and forces the infringer to hand over all the profits made from your property.

A full discussion of royalties, registration, and other details of copyrights are beyond the scope of this article. There are also other aspects of copyright law that are extremely relevant to musicians like co-authorship, works made for hire, and the registration requirements for songs and albums. An entertainment attorney can help you to analyze your copyrights, decide who owns the copyrights, and navigate the registration process. In short, once you understand the true extent and value of your property (that you may have never realized you owned), you can begin maximizing the full potential of that property and open up new doors for your career.

Matthew T. Nagel is an entertainment attorney at Wuestling & James in St. Louis, Missouri and an adjunct professor at Fontbonne University and Washington University School of Law. If you have questions, you can reach him at Nagel@wuestlingandjames.com.

* Articles are primarily educational and do not purport to constitute legal advice. No attorney-client relationship is created between the author and any reader of this article. If you have legal concerns or questions be sure to consult with an attorney licensed to practice in your jurisdiction.