Feb 26, 20204 min read

How to copyright music | 5 requirements for copyrighting music for artists, producers & songwriters

Updated: Mar 14, 2021

How to copyright music | 5 requirements for copyrighting music for artists, producers & songwriters In this episode we explore 5 requirements that make a copyright valid. These requirements include the copyright notice, copyright registration, copyright publication, original works of authorship, and fixation in tangible form.

Introduction

Copyright law began in England with the first printing press. The Statute of Anne was the first English copyright enacted in 1709. The term of it was 14 years from the date of publication, 14 years on renewal term and it provided for fines and forfeiture of infringing copies.

The american copyright law soon followed, on May 31st 1790, as a federal copyright law and it was basically the same as the English law.

Until the 1976 Copyright Act, protection of unpublished works were almost entirely the province of state common law. The 1976 Copyright act changed all this by eliminating common law copyright for most purposes and making federal copyright attach not from the moment of a work’s publication, but from the moment of its first fixation in tangible form.

After more than a century outside the oldest and most important international copyright convention, the United states adhered to the Berne Convention for the Protection of Literary and Artistic Works, effective March 1, 1989. This will be the grounds for our overview of Copyright Law.

Requirements for Copyright

1. Notice

Notice was required on publications of phonorecords and fixed mediums pre 1989 Brene Convention Statutes. The 1989 Berne Convention made the affixation of copyright notices optional rather than mandatory.

New subsections of the copyright statute provide as a general rule that if notice appears on the published copy or phonorecord to which the infringer had access, a court shall give no weight to a defense that innocent infringement should lessen the actual or statutory damages

2. Publication

Publication is the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental, lease, or lending.

The offering to distribute copies or phonorecords to a group of persons for purposes of further distribution, public performance or public display, constitutes publication. A public performance or display of a work does not of itself constitute publication.”

3. Registration

The 1976 copyright act offers several incentives to prompt registration. First, section 410(c) automatically makes registration certificates sufficient evidence for the validity of the copyright and the facts stated in the certificate but only if registration is made before or within five years after the publication of the work.

Second as a general rule, section 412 provides that no award of statutory damages or attorneys fees can be made for

(1) any infringement of copyright in an unpublished work commenced before the effective date of its registration or

(2) any infringement of copyright commenced after the first publication of the work and before the effective date of his registration unless such registration is made within three months after the first publication of the work.

Examples of how those damages work.

Statutory damages are usually between $750 and $30,000 per work, as determined by the court and can be increased up to $150,000 per work if the infringement is found to be intentional. If the infringement is “innocent,” meaning the infringer did not know they were violating copyright law, the damages can be reduced to a minimum of $200 per work (IF THE WORK DID NOT CONTAIN PROPER COPYRIGHT NOTICE).

Example 1: An author published her work on January 1, 2020 and registered her work on March 31st 2020 (91 days after publication). If someone infringed the work on March 30th 2020 and she wants to sue them, will she be eligible to receive statutory damages?

Answer: No, she did not register the work WITHIN THREE MONTHS OF PUBLICATION, and the infringement began before the registration.

Example 2: A songwriter published his work on January 1st, 2020 and registered his work on March 30th 2020 (90 days after publication). If someone infringed the work in February and he wants to sue them, will he be eligible to receive statutory damages?

Answer: Yes. Even though the infringement started before the registration, because he registered WITHIN THREE MONTHS OF PUBLICATION he is eligible for statutory damages.

Example 3: A producer published her work in January 2020 and registered her work in October 2020. If someone infringed the work in December 2020 and she wants to sue them, will she be eligible to receive statutory damages?

Answer: Yes. Even though she registered well after the three-month period, she registered BEFORE THE INFRINGEMENT STARTED, so she is eligible for statutory damages.

Statutory Subject Matter

4. Original works of authorship.

The main two fundamental criteria of copyright protection is originality and fixation in tangible forms. Original is just that, how simple can you get?

5. Fixation in tangible form.

Fixed — a work would be considered fixed in a tangible medium of expression if there has been an authorized embodiment in a copy or phonorecord and if that embodiment is sufficiently permanent or stable to permit the work to be perceived reproduce or otherwise communicative for a period of more than transitory duration. In the case of a work consisting of sounds, images, or both, that are being transmitted (TV Shows, live performances filmed or live broadcast) the work is regarded as fixed if a fixation is being made at the same time as the transmission.

Thank you for watching, reading and listening to the show!

Books & Free Guides

The Musicians Self Publishing Guide #1 -

http://bit.ly/PublishingGuide1

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