Enforcing Your Rights

Many songwriters and artists believe the myth of the “poor man’s copyright.” As the myth goes, an author places a copy of his work in a self-addressed envelope and mails it back to himself.  When the author receives the envelope with a dated postmark, an enforceable copyright registration is created in the work. This is a myth because it does not jibe with what it takes to bring a lawsuit for copyright infringement.

If you obtain a certain level of success or exposure with your songs, you may indeed encounter an issue with copyright infringement. I am not talking about the loony “Garth Brooks stole my song!” type of copyright infringement. Rather, I am talking about solid cases of copyright infringement, like when a rapper samples your music without permission or an advertisement for dish soap exploits your song without permission.

The primary purpose of copyright law is to protect the interests of the authors. Therefore, authors (as copyright owners) must have a mechanism to enforce their rights to the copyright.  That mechanism is the Copyright Act, which allows you to sue – or threaten to sue – the copyright infringer.

Many songwriters don’t understand the process of securing copyright protection. In general, copyright registration is a legal formality intended to make a public record of the basic facts of a particular copyright. Even though registration is not a requirement for protection, you will have few enforcement tools without a copyright registration. A poor man’s copyright does not affect the registration of a work, nor does it provide you with any real benefits.

Let’s pretend the dish soap commercial used your song without permission. After you see the bubbly housewife scrubbing dishes and singing your song during the middle of the big game, you decide to contact an attorney. If you have a valid copyright registration, you (1) have prima facie evidence of a valid copyright (if registration was made within five years of publication); (2) you can sue immediately for damages and a court order to halt the infringement; (3) you can get statutory damages up to $150,000 if the infringement is willful; and, most importantly, (4) you can seek to recover your attorney’s fees. In the copyright infringement suits I have been involved with, the fear of being hit with an attorney’s fee award is typically the most effective tool in collecting a big award from a copyright infringer, especially if the infringer is a major company.

Let’s examine the other side of the coin. What if you simply claim a poor man’s copyright without a registration? As an initial matter, you will not be able to sue for copyright infringement; a valid copyright registration is required if you want to sue for infringement.  Without a valid copyright registration, the case will be dismissed; a federal judge will not substitute a “poor man’s copyright” for a federal copyright registration. Moreover, you will not be able to seek attorney’s fees or statutory damages of up to $150,000. Instead, you will be left seeking actual damages and profits of the infringer – which can be low – and you will have to pay your own attorney’s fees. The chances of coming out ahead in a lawsuit after paying an attorney are slim.  Consequently, if you rely on a poor man’s myth instead of paying thirty-five dollars to register your copyright through the Copyright Office, you will continue to be a poor man if someone infringes your copyright.

Often, the devastating effect of claiming a poor man’s copyright is not realized until a problem arises.  Nonetheless, no excuse exists for failing to register your copyrights. In fact, the Copyright Office recently introduced a new application in an effort to make it easier for songwriters (and other authors) to register their individual works. The new application allows individual authors to register a single work, like one song, through a simple online form located at www.copyright.gov/eco.

Howell O’Rear is a lawyer at McInteer & O’Rear PLC, www.mcolawfirm.com, which is based in Nashville. His practice focuses on litigating business disputes, including copyright, trademark and Internet matters. E-mail him at [email protected].

Disclaimer: This article does not constitute legal advice – it is only background discussion about copyright issues. The author recommends contacting a lawyer with questions or concerns.