Copyright

Copyright

Amidst the tedious writing, relentless performing, and unyielding self-promotion, local performers tend to overlook an element of the entertainment industry that can later prove to be detrimental…copyright protection.

In that respect, present US copyright law provides that a work is automatically protected by copyright when it is first created. In other words, from the moment a work is “fixed” in a copy or phonorecord it is deemed created and as such, protected by the US copyright law. That being said, neither registration in the US Copyright Office nor publication is actually required to obtain copyright protection. However, there are multiple advantages to actually registering your work with the US Copyright Office. Namely, the establishment of a public record of your copyright claim (thereby providing public notice) and the ability to ensure a broader range of remedies available should an infringement suit later arise.

17 USC § 102(a)(2) of the U.S. copyright law provides copyright protection for musical works, including any accompanying words, that are fixed in a tangible medium of expression. This protection applies to both original compositions and original arrangements or new versions of earlier compositions to which copyrightable authorship has been created.

Once acquired, the owner of a musical work copyright bears several exclusive rights, including the right to make copies, prepare derivative works, sell or distribute copies, and to perform the work publicly. Thereafter, anyone wishing to use the work in a similar manner must seek permission of the author or someone who has derived rights through the author. However, although a musical work copyright includes the right to make and distribute the first sound recording, others are permitted to make subsequent sound recordings by compensating the copyright owner of the musical work under the compulsory licensing provision provided in 17 USC § 115.

Registration procedures are relatively simple, but it is imperative that you properly prepare and submit your application materials in a timely manner to ensure full protection. More specifically, remember to file your registration immediately following creation of your work, give clear and accurate information, and to either prepare the appropriate online fill-in form, type, or complete the application in black ink before submitting same. Also, you must properly prepare and complete the correct application form along with two non-returnable deposits of the “best edition” of the work to be registered with the Library of Congress (typically a compact disc). Coupled with this submission is the requirement of a non-refundable filing fee in the form of a check or money order payable to the Register of Copyrights for each application. The recent fee schedule, applicable forms and additional information regarding same is available on the US copyright law website located at www.copyright.gov. These items can be mailed to the following address:

Library of Congress Copyright Office 101 Independent Avenue SE Washington, DC 20559-6000

To determine which form provides the copyright protection you are seeking, you must be able to decipher the differences between a musical composition and a sound recording. A musical composition includes the actual music and the accompanying words (if any), and the author is generally the composer and the lyricist (if any). A sound recording results from the fixation of a series of musical, spoken or other sounds. Under these circumstances the author is typically the performer(s) whose performance has been fixed or the record producer who has processed the sounds and has fixed them in the final recording, or both.

Remember that copyright registration for a sound recording is neither the same as, nor a substitute for, the registration of a musical work recorded. As such, you should register the underlying work (Form PA) separate from any recording of the performance. However, a musical composition and a sound recording may be registered on a single application if the ownership of the copyright in both the musical composition and the sound recording are the same (under these circumstances you would submit the Form SR). Registration becomes effective the day the Copyright Office receives your application materials. Typically within four months thereafter, the Copyright Office will forward the registrant a Certificate of Registration for same. For works created on or after January 1, 1978, the current U.S. copyright law adopts the basic “life-plus-seventy” formula to determine the duration of a copyright’s protection. In other words, from the moment a work is first fixed in a tangible medium, it is automatically protected for the life of the author plus an additional 70 years after the author’s death.

Also, keep in mind that within three months of publication you are required to deposit a certain number of copies to the Copyright Office to satisfy the mandatory deposit requirement with the Library of Congress. Publication is defined as 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.” These deposit copies can be sent to the following address:

Library of Congress Copyright Office Attn: 407 Deposits 101 Independent Avenue SE Washington, DC 20559-6000

These few, relatively simple steps, can help ensure avoidance of a slue of “hazardous” issues arising from the lack of or improper protection of your creative work. All too often artists become engulfed by the glitz and glamour of the entertainment industry and in doing so they lose sight of what’s most important—the musical works themselves. If it’s really “about the music” as several musicians and performers claim, then make it about the music by properly protecting, monitoring and enforcing what’s yours.

PLEASE NOTE: The US copyright law is constantly being amended and quite often being challenged. As such, the governing laws, regulations and rules tend to vary dependent on individual circumstances. Further, copyright law extends beyond the US Copyright Act and includes numerous other acts that may bear on your copyright protection (e.g. The Digital Millenium Copyright Act or DMCA). Therefore, it is strongly recommended that you consistently and continuously visit www.copyright.gov for frequently asked questions, circulars, announcements and other related materials. If you have general questions you may also contact the Copyright Public Information Office at (202) 707-3000 between 8:30 a.m. and 5:00 p.m. EST, Monday through Friday.

As a side, names, titles and short phrases and expressions are not subject to US copyright protection. In other words, typically you cannot register the name of your band, even if it is novel or distinctive. However, some names and slogans can find protection under US and Illinois Trademark laws. Trademark law will be addressed in later Chicago Music Guide articles. However, if you are interested in gaining some insight on Trademark, please contact the Patent and Trademark help line at (800) 786-9199.

By: Michelle M. Wahl, Esq.


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Michelle is a Partner at Swanson, Martin & Bell, LLP and is licensed in Illinois and Indiana state and federal courts. With a Masters of Law in Intellectual Property, Michelle is the Vice Chair of the firm’s Entertainment and Media Practice Group and a member of the firm’s Intellectual Property Litigation and Transactional Services Practice Group. Her copyright and trademark practice focuses on intellectual property prosecution and related transactions, including performing trademark availability searches and providing advisory opinions, as well as preparing and filing trademark applications with the United States Patent and Trademark Office, and copyright registrations with the United States Copyright Office. Michelle also assists with the oversight of the firm’s extensive trademark docket and conducts required monitoring and maintenance of clients’ trademark portfolios, as well as provides clients with corporate counseling and innovative corporate solutions to address their respective needs. Michelle further provides comprehensive representation in the drafting, negotiating and executing of various entertainment-related contracts and licenses, including but not limited to band member agreements, artist management agreements, session player agreements, performance agreements, publishing agreements, sound engineer agreements, recording and personal services agreements, and licensing agreements. As a former artist manager, she has implemented many facets of national and regional tours, assembled benefit and charity concerts, communicated with various industry personnel, facilitated radio and internet publicity campaigns, arranged radio, print and internet interviews, and assisted in the development of press kits and websites promoting local talent. Michelle has also guest lectured on entertainment and intellectual property-related topics at The John Marshall Law School and the DePaul University College of Law, as well as served as a panelist on various other entertainment-related continuing legal education courses. Michelle has written for the ABA’s Entertainment & Sports Lawyer Journal and has also had numerous articles published by the Chicago Music Guide. In addition, Michelle serves as Chair of Swanson Martin & Bell, LLP’s Community Service/Pro Bono Committee and proudly volunteers her time as Vice President of the Associate Board and as a pro bono attorney to Lawyers for the Creative Arts, a non-profit organization that provides free legal services to eligible clients in all areas of the arts. She recently served as Chair of the Young Lawyers Division for the Illinois Association of Defense Trial Counsel, where she was recognized as the Rising Star recipient and received a Meritorious Service Award and President’s Commendation. She is currently serving on the Illinois Association of Defense Trial Counsel’s Board of Directors.

DISCLAIMER: The information contained in these articles constitutes general information and guidance and shall not be construed as legal advice applicable to or provided for any particular person or entity, and shall not be deemed to create an attorney-client relationship between Ms. Wahl and anyone who elects to read and/or rely, to any extent, on the material provided herein. In that respect, Ms. Wahl hereby expressly and specifically disclaims any such legal relationship, but encourages any person or entity seeking a legal advocate pertaining to the issues addressed and discussed herein to contact her directly for further information. Ms. Wahl may be reached at Swanson, Martin & Bell, LLP (330 N. Wabash, Suite 3300, Chicago, IL 60611 or via telephone at her direct line: (312) 222-8585 or e-mail at: mwahl@smbtrials.com.

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