Question: Last issue, you said that copyrighted songs are supposed to be deposited with the Library of Congress and that two copies had to be deposited with a copyright registration. But I only had to file one copy. What gives?
Answer:Copyright law does require that you deposit a copyrighted work within 30 days of publication. Remember, an original song is copyrighted as soon as it is "fixed" in some tangible form - sheet music, tape or compact disc recording, or saved onto a computer disk. However, it is not "published" until, in essence, it has been offered for sale to the public.
You may register the copyright of an unpublished song, i.e., one that you have recorded but not offered for sale to the public. Registration for unpublished works requires that you submit only one copy.
However, if you do not register a copyright until you offer your song for sale to the public, then copyright law requires two copies be submitted to the Register of Copyrights. This submission would then satisfy the requirement that you deposit a published, copyrighted with the Library of Congress.
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Question: My buddies and I formed a band and played locally a few years before splitting up. I want to form a new band but use the name of my old band. Is there any legal reason I can't do that?
Answer:There are some legal considerations that should not be ignored but for most local bands, the problems are largely of the non-legal variety. You may want to use your old band's name to re-establish yourself with your fan base. However, if your first band had developed a loyal following, a new band using the same name could cause some confusion. Fans of the first band may wonder why the sound is different or the style of the band is not the same.
These problems are fairly minor, unless another member of your first band also decides to form a band and use the original name, or something close to it. The confusion it would cause would be exacerbated.
If your first band had a partnership agreement governing the use of the band name, or the name was a registered trademark, there would be legal issues that need to be addressed. For the most part, these problems would be avoided by creating a new name for your band. The change could be subtle if you want your fans to make a connection between you and your old band. For example, if your old band was called the Renegades, you could call your new group the New Renegades.
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Question: Who pays royalties on the music played at clubs, bars and other venues? Does it matter whether the music is live or recorded?
Answer: The club, bar or other venue is responsible for paying the royalties or fees for the music played there. The fees are collected by three performance rights organizations - BMI, ASCAP, and SESAC. By far, BMI and AS CAP are the two major organizations.
The fees collected by BMI and ASCAP from radio and television stations and networks, as well as nightclubs, discos, hotels, bars, restaurants and other venues, are distributed to the songwriters and music publishers registered with these organizations. A songwriter can be affiliated with only one organization or the other. The performance royalties are generally paid half to the music publisher and half to the songwriter.
Performance royalties are just one means through which a song can earn money. Other methods include mechanical royalties, licensing, and sync payments if used on television or in commercials.
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Question: I'm recording a CD and want to include a song written by a family member who is sometimes difficult to get in touch with. The copyright for the song is registered. Do I have to get permission to use the song on my CD? Do I have to pay to use it?
Answer: You haven't indicated whether the song has been previously been released to the public. If the song has been recorded on an album and released in this country for sale to the public, you must send the copyright owner a Notice of Intention to Obtain Compulsory License. The notice provides certain information to the copyright owner including who will be recording the song, its expected date of release and a statement that the statutory mechanical license rate will be paid.
The compulsory license can only be used if the song has been previously recorded and if you will not be changing the basic melody or lyrics to the song. The song owner need not sign the compulsory license.
If the song has never been recorded or published, you will need to obtain what is known as a Mechanical License and Authorization for First-Time Recording of sing. This special license is obtained from the song owner, usually the songwriter (but not always). This license must be signed both by you AND the song owner. In other words, the song owner must agree to the recording.
The statutory mechanical royalty rate for a song is currently 8.5 cents or 1.65 cents per minute of playing time or fraction thereof, whichever is greater. In effect, the 1.65 cents per minute rate would only go into effect if the song were longer than 5 minutes. The statutory rate is pef number of copies pressed. So assuming the song you want to record comes in at approximately three and one-half minutes and you press 1000 copies, you would have to pay the song owner $85.
If you personally know the song owner, as in the case of a family member, you may be able te get a waiver of the royalties. Alternatively, if the song owner wants payment but is willing te negotiate, you may negotiate as smaller amount per pressing. The song owner may also be willing to pay based on the number of copies actually sold. This latter method requires
more bookkeeping on your part and you may have to agree to make periodic payments
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Question: I've written a song and the working title I have is 'Do You Love Me.' I know there is a song from the sixties by that title and was wondering if the copyright for that song is still good. Assuming that it is, do I have to rename my song?
Answer:You are most likely thinking of the song by the Contours, which was first released in
1962, becoming a #3 hit for them. The Dave Clark 5 released a cover version in 1964. The
Contours re-released the song in 1988 to capitalize on its newly gained popularity thanks to
being featured in the movie, 'Dirty Dancing.'
Regardless of the copyright status of that song (it is still under copyright protection, by the way), you will be glad to know that titles are not eligible for copyright protection. Therefore, if the title 'Do You Love Me' is appropriate for your song, then by all means use it. There may be pros and cons to using a familiar title as the title of your song. However, from a copyright standpoint, there is no prohibition.
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Question: What is the proper way to show that my song is copyrighted?
Answer:The use of a copyright notice is no longer required under U.S. law since the United States adhered to the Berne Convention on March 1,1989. Nonetheless, use of the notice is important because it informs the public that your work is protected by copyright, identifies you ~ the copyright owner, and shows the year of first publication. Furthermore, in the event that your work is infringed, if a proper notice of copyright appears on the published copy or copies, it may make it more difficult for a defendant in a copyright infringement suit to claim the
infringement was innocent or unknowing.
To properly give copyright notice on a cheat sheet or sheet music, you must have all three of he following elements:
1. The symbol ) (a 'c' in a circle), or the word 'Copyright,' or the abbreviation 'Copr.'; and,
2. The year the work was first published; and,
3. The name of the copyright owner.
For example, if John Smith writes and publishes a song this year, the following copyright notice would be proper: Copyright 2005 by John Smith.
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Question: I've written and co-written a number of songs and would like to copyright them. However, at $30 per song that adds up. Do I really have to copyright them? Is there a less expensive method?
Answer:You will be glad to know there is indeed a less expensive method but first, a little refresher on copyrighting is in order, especially for those who are new to this column. Most people are actually thinking of copyright registration when they use the term "copyright".
Neither publication nor registration with the Copyright Office is required to secure a copyright. A work is copyrighted automatically when it is created, and a work is created when it is fixed in a tangible form for the first time. Copyright registration is a legal formality intended to make a public record of the basic facts of a particular copyright. However, registration is not required to create a copyright.
Registering your copyright is important because it does serve to protect your interests and by registering with the Copyright Office, your preserve certain legal remedies and become eligible for statutory damages which may be more substantial than actual damages. As you note, however, at $30 per song those fees add up.
If you have written several songs, you may want to consider registering them as a collection. Certain rules must be met, however. First, all of the songs must have been written by one songwriter or, in the case of collaboration, one of the songwriters must have written a part of each song. Next, the songs in the collection must be either all published (made available to the public) or all unpublished (not yet made available to the public) at the time of registration. Finally, the rights to the songs should have the same status, that is, you should not have transferred the rights to some songs but not others.
The following example will help explain how this method works and how ii will save you money.
B.J. Smith has written six songs by himself, three in collaboration with his ~and mate, Bob Jones, and one with both Bob Jones and Keith Jagger. B.J. Smith can register all 10 songs as a collection on Copyright Form PA. In space 1 on Form PA where it asks for the title of the work, Smith would right something like "10 Songs By B.J. Smith & Friends" or "Songs For Our Next Album." The rest of the form would be filled out as usual. B.J. Smith then mails the Form PA, along with a recording of the collection and a check for
$30.
Later, after the registration is accepted, B.J. Smith then files a Form CA. Taking all the relevant information from the Form PA, such as title of the work, Smith fills out the Form CA and where it says "Amplified Information," the titles of the 10 songs comprising the collection are now provided. Once this information is received and accepted, B.J. Smith's ten songs are registered and listed with the Copyright office.
The fee for filing a Form CA is $100. However, if each of the ten songs were individually registered, Smith would have paid $300. Using the method outlined above, Smith pays $130 and saves $170.
Registering a song as part of a collection may not always be the best method to use. However, for the prolific songwriter, it is certainly worth considering.
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Question:I've heard there is something called "the Poor Man's Copyright." What is it
Answer: First and foremost, the Poor Man's Copyright is largely a myth. That's not to say that people haven't tried using it. But in terms of it being an effective means of protecting your rights, that is a myth.
The Poor Man's Copyright is supposed to work like this: You mail a copy of your work to yourself, then retaining the sealed, postmarked envelope as proof of the date of your authorship. A variant of this method would have you mail the work certified mail, return receipt requested.
The theory is, if someone steals your work (infringes on it), you can sue and establish proof of your authorship.
The problem is, there are no reported cases where this method of establishing authorship has been successfully used - or used at all. Furthermore, as fool proof as it may seem, it is easily challenged because that type of "proof' can be easily fabricated. (For example, try sending yourself an unsealed envelope, hold onto it for a while then copy someone else's work, put it into the envelope and seal it; result - "fake proof'.)
U.S. Copyright Laws now require registration as a prerequisite to bringing a suit for infringing on a copyright. There are other advantages to registering a copyright. If you are successful, you may be entitled to statutory damages and attorney fees from the infringing party.
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Question:I am financing the independent production of a CD And would like to register the whole CD as a single collection. My dilemma is that the lyrics to twelve of the 13 songs were written by the same artist. The 13th song, "How Great Thou Art," is a world-famous hymn. My research indicates that most of it was written by Carl Boberg in 1886, but later a Reverend Stuart K. Hine translated three (of the original NINB!) stanzas into English from the Russian version, and added his own words as a fourth verse. This is the lyrical construction of the song as it is currently known.
Who owns the rights to such an old song? How do you find out who owns songs or where do I go to do the research? Is it still copyright protected?
On this CD, the lyrics are in tact as translated by Hine but the music is new (although the artist is modest and keeps calling it a "variation on the original theme," but don't hear any similarities).
Answer: The copyright to the song "How Great Thou Art" is owned by:
Manna Music, Inc.
P.O. Box2l8
Pacific City, OR 97135
You state that on the artist's recording, the lyrics will be the same, but the music will have a variation on the original theme. The question is, how original? It is likely it would not rise to the level of originality to claim authorship, in part, of the song. Please be aware, however, that, I make this statement without the benefit of hearing his work.
What he may have, however, is an arrangement of the song that can be copyrighted, giving credit to the original authors and copyright holders (Manna Music, perhaps), and noting it is an arrangement by him. So what you then want to do is, register the 12 original songs as a collection. Register the arrangement of the 13th song separately.
This may not be the most desirable situation, because, once all thirteen songs are on one CD and the CD is released, i.e., made available to the public, the CD in its entirety should be copyrighted separately.
Yes, it is a wild and wacky world of copyrights.
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Question:: I'm a newbie at songwriting, and came across a phrase I'd like to use as a title and recurring phrase through the chorus:
"Something Borrowed, Something Bluegrass." I've searched the phrase on the web, and discovered that it was used as a subtitle to a banjo instrumental entitled Auld Lang Syne (Something Borrowed, Something Bluegrass). While the most common verse of Auld Lang Syne is sung, the phrase is never used in the piece. Would I be able to use the phrase as the title to my song?
Answer: You will be glad to know that titles cannot be copyrighted. So even if the phrase "Something Borrowed, Something Bluegrass" were used as a subtitle for another song, it would not prevent you from using it for your song.
So write away and please do not hesitate to drop a line if you have additional questions.
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Got Questions?
If you have a legal question concerning songwriting, copyrights, publishing rights, band agreements, etc., send them to Bill Graham at esquire@nycap.rr.com.
Want to Know More About Songwriting in General?
Then on first Monday of every month, come to the meeting of the Songwriter's Workshop at 7pm at 375 Broadway in Schenectady. Share songs, experiences and good times with others of a like interest.
