Guide Through the Legal Jungle

How to Copyright Protect Your Work. Part Two.

In Part Two of this blog series, I discuss special circumstances that apply to copyright registration of online works and I provide resources for additional information.

Special Considerations and Group Registration for Online Works
Normally, registration covers your work in the form it exists on the registration date as reflected in the deposit. For basic filings, registration does not cover revisions. Registration for revisions requires an additional application with an additional registration fee. This is a disadvantage for online works with frequently changing or rotating content.

A potential solution to this problem is using group registration. Group registration is a single registration covering multiple works, multiple versions of a work, or multiple issues of a series. You file group registrations on one application and pay one filing fee. Under certain circumstances, you can register your online work as an automated database or as a serial. The group registration methods can minimize the number of applications you must file and the filing fees you must pay.

Currently, online registration is not available for group registration. You must file your group registration application on paper forms via mail. This situation may rapidly change as the Copyright Office expands its online registration capabilities. I discuss group registration further in my book, The Cyber Citizen’s Guide Through the Legal Jungle.

For Additional Information on Copyright Registration

Copyright Office. The Copyright Office publishes several information circulars about copyright registration. You can get the information circulars by visiting www.copyright.gov or by calling the forms and publication hotline at (202) 707-9100. In addition, the Copyright Office's information specialists are available at (202) 707-5959 on weekdays from 8:30 a.m. to 5:00 p.m. EST to respond to basic questions concerning copyright registration.

The Cyber Citizen’s Guide Through the Legal Jungle: Internet Law for Your Professional Online Presence includes an in-depth discussion of copyright registration for online works (including an explanation of the advantages and requirements for group registration). The Appendix includes fully annotated examples of completed copyright registration applications for a blog, website, podcast, and online newsletter. You can view the full table of contents along with an excerpt here.

How to Copyright Protect Your Work. Part One.

Registration Is Not Required For a Valid Copyright
First, understand that you don't need to register your copyright with the United States Copyright Office in order to have a valid copyright. You have a valid copyright as soon as your work is "fixed in a tangible medium of expression". This is a phrase used by the Copyright Act and means that your work must be written down or recorded.

Although registration with the Copyright Office is not required to have a valid copyright, registration does provide several benefits:

• the establishment of a public record and evidence of your claim as the valid copyright owner of your work

• the ability to file a federal lawsuit against someone who uses your work without your permission

• eligibility to receive statutory damages and attorneys' fees in the event you file and win a copyright infringement lawsuit

The Registration Process
Registering your copyright is fairly straightforward. To register your copyright, you must submit three items to the Copyright Office:

1. A completed application. The Copyright Office encourages copyright owners to use online registration for all filings for which online registration is available. To register online, you first create a free account on the Copyright Office’s website.

2. A deposit of your work. A deposit is a copy of the work you are registering. If your work is published both online and in the form of physical copies offline, you must follow the deposit rules applicable to the physical version.

3. The filing fee. Filing fees change periodically and you should verify current fees at the website of the Copyright Office prior to filing.

Processing time varies depending on the Copyright Office’s backlog of applications. Processing time may take several months and sometimes up to or over a year. However, the effective date or your registration is the date on which the Copyright Office receives your completed application.

 

 

 

Copyright Office Investigates Termination Gap

If you sell your book or song or movie, the Copyright Act’s termination provisions give you an opportunity to re-claim it after a period of years. The termination provisions are among the most complex and confusing provisions in the Copyright Act. Here’s an oversimplified rendition of the primary termination provisions:

Section 203 Termination Provision.
Section 203 of the Copyright Act provides that you may terminate an assignment and reclaim ownership of your copyrighted work after thirty-five years for any assignment you make on or after January 1, 1978. January 1, 1978 is the effective date of the current Copyright Act.

Section 304 Termination Provision.
Section 304 of the Copyright Act provides that for any copyrighted work that was existing as of January 1, 1978, and that was assigned prior to January 1, 1978, you may terminate the assignment after fifty-six years.

The Gap.
There is a gap in termination rights for a situation in which the assignment was made prior to January 1, 1978 but the work was not created until after January 1, 1978. Here’s an example of how that can happen.

Example: Suppose John Writer signs an agreement with a publisher in 1977 to deliver a mystery novel. John Writer delivers the novel in 1979 and the mystery is published in 1980. The mystery is a classic and is still a best-seller in 2010. John Writer wants to re-claim the rights in his mystery novel by terminating the assignment to the publisher.

Does John Writer have the termination rights to do so? It’s unclear. Section 203 arguably doesn’t apply because John Writer executed the publishing contract prior to January 1, 1978. Section 304 arguably doesn’t apply because the copyrighted work (i.e., John Writer’s mystery novel) did not exist as of January 1, 1978.

Copyright Office Action. It doesn’t seem logical that Congress deliberately excluded a group of creators from the ability to re-claim their works. That’s why the Copyright Office is attempting to sort through the situation now. The gap is one of many problems for Section 203 terminations, the first of which will begin in 2013 (i.e., 35 years after 1978).

I smell litigation wafting gently through the air.

Your Right to Re-Record a Popular Song

A Guide Through the Legal Jungle Trivia Question

If you hear a song on the radio that you like, do you need to obtain the permission of the song's copyright owner before you can record your own version of that song?

1. Yes
2. No

The correct answer is No.

You do not need permission if the recorded song you heard on the radio was commercially released with the permission of the copyright owner. If that's the case, the song qualifies for compulsory mechanical licensing. The compulsory mechanical license, a creation of copyright law, allows you to make and sell your own recording of any previously commercially-released song. Your only obligation to the copyright owner of the song is payment of the compulsory mechanical license fees set by copyright law.

For more information on the compulsory mechanical license, see Part Two of the blog series, How Your Songwriting Generates Income.

No European Love for Google Street View Program

Europe has not been a big fan of Google’s Street View Program.

What Is Street View

Street View is a web application that allows you to take a virtual tour of a city and feel as though you are standing right on the streets of that city. Google gathers the pictures for Street View with vehicles driving on public roads and equipped with advanced imaging technology. Several European countries were not thrilled by Google’s filming of people’s residences and private property without their permission.

Another Street View Misstep

Evidently, while driving the city streets collecting digital photographs, Google inadvertently collected personal data from unencrypted Wi-Fi networks. News reports suggests the collected data includes information such as email and bank account numbers.

Google wanted to destroy the data after conducting an internal audit to correct its data gathering practices. However, European privacy regulators were outraged at Google’s mistake. Germany, Spain and France have demanded that Google provide them with copies of the mistakenly collected data. And who knows where the European investigation will go from there.

Part Four. How Your Songwriting Generates Income.

In this Part four of this blog series on songwriting revenue, I discuss synchronization, print, and foreign licenses.

Synchronization Licenses

Through a synchronization license, you authorize someone to use your song with visual images. The visual images might be from a commercial, film, video, television show or other audiovisual production. Synchronization fees are subject to negotiation and vary according to the popularity of the song and the importance of the song in the visual piece. For example, the synchronization fee to use an entire song in a major motion picture might be in the $50,000 to $75,000 range while the synchronization fee for use of a song as background music in a television show might range from $1,000 to $2,000.

Print Licenses

A print license authorizes the sale of your song in printed form. Printed music is sold as single song sheet music or as part of a folio, which is a book containing a collection of songs by one or more songwriters. Print licenses are generally issued to a company that manufactures and distributes printed music. The manufacturer then pays a royalty to the songwriter or his music publisher for each unit of sheet music and each folio that is sold.

Foreign Licenses

The same licenses discussed in this blog series - mechanical, performance, synchronization and print - are also issued in foreign countries. Songwriters or their music publishers typically retain an agent located in each of the foreign countries where the song is exploited. These sub-publishers - as they are frequently called -collect royalties generated in their country, retain about 15-25% as their fee, and pass the remainder along to the songwriter or U.S. music publisher.

Part Three. How Your Songwriting Generates Income.

In this Part Three of this blog series on songwriting revenue, I discuss performing rights licenses.

Performing Rights Licenses

Each time your song is performed in public, you are entitled to receive royalty income for that public performance. It doesn't matter whether your song is performed by a live band, or if a recorded version of your song is played. Both can qualify as a public performance. That means your song is performed publicly when a recording of it is broadcast on a radio station, when it is played as part of a television program or when it is played in a nightclub. To comply with copyright law, the radio station, television network, or club must have a performing rights license authorizing the public performance.

No General Public Performance Right for Sound Recordings

With some limited exceptions, performing rights apply only to the song and not to the sound recording. Each time a song is performed publicly, the songwriter - but not the recording artist singing the song or the record company that released the record - is entitled to receive compensation. There is a public performance for sound recordings played online and by other digital means. Some are trying to extend this limited sound recording public performance right as a method of getting more revenue for recording artists.

Role of Performing Rights Societies

To eliminate the need to negotiate a separate license with each radio station, night club, and restaurant that wants to perform their song, songwriters or their music publishers affiliate with performing rights societies. ASCAP, BMI and SESAC are the performing rights societies in the United States. These associations specialize in negotiating performing rights licenses and collecting performing rights revenues. The societies often negotiate blanket licenses with radio stations, television networks, and restaurants that allow those organizations to perform any song in the catalog of the performing rights society issuing the blanket license.

Part Two. How Your Songwriting Generates Income.

In this Part Two of a blog series on songwriting revenue, I discuss mechanical licenses.

Mechanical Licenses

A mechanical license gives a record company or other party the right to reproduce your song onto a record. You might negotiate this license directly with the person who wants to record your song. Alternatively, the person who wants to record your song may obtain a compulsory mechanical license.

The compulsory mechanical license is a creation of the United States Copyright Act. Here's how it works. Once a song has been commercially released, anyone may make another recording of that song and sell copies of his recorded version as long as he pays the song's copyright owner the license fees set by copyright law. In order for a compulsory mechanical license to be valid, the copyright owner must have authorized the commercial release of the song, and the song must be non-dramatic.

The Copyright Office periodically modifies the compulsory mechanical license rate. The current compulsory mechanical license rate, also called the statutory rate, is 9.1¢ per song per record for recordings of up to five minutes. If the recording is more than five minutes, the rate is 1.75¢ per minute per record.

Despite the existence of the compulsory mechanical license, most mechanical licenses are in fact negotiated. Many songwriters or their music publishers use the Harry Fox Agency to negotiate and issue their mechanical licenses, and to collect the corresponding license fees. The Harry Fox Agency charges a fee equal to four and a half percent of the mechanical license fees they collect.

Part One. How Your Songwriting Generates Income.

As a songwriter, you earn money by licensing your songs for various uses, and collecting the corresponding license income. This process of generating income from your songwriting is music publishing. To understand music publishing, you should understand the distinction between a song and a sound recording. You should also understand the exclusive rights a copyright owner holds in his songs and sound recordings. I discuss these issues in the blog posting, "What Exactly Is a Music Copyright?"

While some songwriters choose to handle their own music publishing by forming their own music publishing company, many songwriters work with a music publishing company. Music publishing companies are important in at least three areas. Naturally, their most important function is marketing and promoting your songs. Second, the music publishing company handles all the administrative paperwork involved with copyrighting, licensing and collecting royalties for your songs.

Finally, a music publishing company may help you develop as a songwriter by finding other songwriters and lyricists with whom you can collaborate. In return for its services, the music publishing company generally receives 50% of all songwriting revenue. The most significant revenue for the typical songwriter comes from issuing the following licenses:

• Mechanical Licenses
• Performing Rights Licenses
• Synchronization Licenses
• Print Licenses
• Foreign Licenses

In my next blog postings, I’ll discuss each one of these licenses.