As a songwriter, the most valuable assets you own are the copyrights to the songs you create. As a copyright attorney in Nashville, TN, I am constantly being asked, “How do I protect my songs? How do I keep people from stealing my songs? How do I make money from my songs?”As a songwriter, the most valuable assets you own are the copyrights to the songs you create. As a copyright attorney in Nashville, TN, I am constantly being asked, “How do I protect my songs? How do I keep people from stealing my songs? How do I make money from my songs?”
Unfortunately, there’s more misfortune among the general public than correct information regarding proper copyright protection procedures. This article is not a substitute for a good relationship with a qualified attorney who can properly guide you. However, I can recommend the following three steps for probate and protection.
There are three steps you can take to protect your work and profit. They are:
1) Place the correct copyright notice on every copy of your work, from the rough draft to the finished product.
2) Register your copyright with the United States Copyright Office in Washington, DC.
3) Join a performing rights organization such as ASCAP, BMI, or SESAC.
The first item, placing the correct copyright notice on every copy of your work is extremely important. Under the Copyright Revision Act, publication of a song without the correct copyright notice is not necessarily fatal to your rights, but it certainly hampers your ability to protect them. Learning what a correct notice contains and making sure it appears on all copies of your work is truly crucial to protecting your rights. A correct copyright notice contains three elements:
A. The word “copyright” or a c with a circle around it – ©.
B. The year of creation of the work or year of publication if work is published
C. The name of the owner of copyright. Thus, the correct notice for this magazine article is © 1989 Brian L. Smith, ESQ.
My experience is that most people make mistakes on the proper year and the correct name of the copyright owner. You should place the notice on every copy beginning with the rough drafts and demo tapes. The year to put is the year of creation (if the work is published or unpublished) or the year of publication, if published. There is an obtuse statutory definition of “publication,” which boils down to meaning that a work is published when you give a copy of it away – to anybody for any reason, either by lease, lending, gift, or sale.
Another very misunderstood part of the copyright notice is who the owner of the copyright is. If you have signed a publishing contract, the typical publishing contract calls for the publisher to be assigned all rights to the songs. The contract then contains a contractual obligation to pay the songwriter royalties for the exploitation of the work.
Few budding songwriters are under such contracts. If you are under such a publishing contract the publisher’s correct company trade name would be the correct name for the notice. If you are not signed with a publishing company, then you as an individual are the author, along with any co-authors of the work. The only other scenario which would change the ownership element or the notice would be if you write songs as a part of your employment (or in another capacity) so the work would be a “work for hire.” If so, the employer is considered the author and owner of the copyright. If you have any questions whatsoever about whom the proper owner of the song is, you should contact a qualified copyright attorney or other copyright professional who can help you answer these complex questions.
The second truly necessary step in protecting your rights is to file a copyright registration application with the United States Copyright Office, a division of the Library of Congress in Washington, DC. One of the most damaging items of folklore flooding the streets of Nashville and elsewhere is the concept of the “common law copyright,” otherwise known as placing a copy of your song in an envelope and mailing it back to yourself. At most, this is circumstantial evidence that as of a certain date, a song was placed in an envelope and mailed. This will not give you maximum copyright rights in your songs. You can accomplish the same goal of proving when you wrote a song by filing a correct copyright application. A proper registration requires: 1) A properly completed registration application; 2) two copies of the work; and 3) a ten dollar check payable to the copyright office.
Some writers are scared to show their work to anyone for fear their songs will be stolen. The facts of life are that if you don’t show off your work, no one will know about it and you can’t sell it. By registering your copyright as soon as possible after the song’s creation, and by placing the correct notice on every copy, you will be able to shop your tunes.
A timely registration of your copyright will entitle you to all of the statutory damages, remedies, and rights allowed under the 1976 Copyright Revision Act. The registration must be accomplished before an infringement occurs or within three months of first publication in order to give yourself maximum copyright benefits. Filling a correct registration application on a timely basis is critical to your rights.
I counsel my clients to educate themselves on filling out these government forms so that they can take care of their own registrations. However, these forms are like tax returns – not everybody like to deal with them and you might want to turn to a copyright attorney or a music professional who is skilled in filing and preparing these forms. If you are under a publishing contract, it usually is the publisher’s job to take care of registrations. But don’t assume they are taking care of business. You need to make sure registrations have been filed.
The third major area of concern is profiting from your songs. The music industry has, over many decades, structured itself around the performing rights organizations – ASCAP, BMI, and SESAC. These organizations collect performance royalties from radio, television, performance venues, and other sources, and then distribute money to songwriters. BMI, ASCAP, and SESAC are the true pillars of the songwriting community. They are your best friends. They are the ones who get out and sell licenses and distribute income, and you simply cannot profit form your songs without a relationship with one of these organizations. If you have not been in contact with one of them, you should immediately do so.
I know it’s much more fun to be creative than businesslike, but if you don’t take care of these basic areas of copyright protection then you may as well lose rights to your songs and certainly not have as valuable of an asset as you should have.