By Edward (Ned) R. Hearn
One question most frequently asked by songwriters* is “How can I keep my work from being stolen and how can I prove my ownership in the songs I have written?” There are various ways that proof of ownership can be obtained. The best form of proof is registration of your copyright claim with the Copyright Office in Washington, D.C. This article explores Copyright Office registration and alternative forms of proving ownership and the merits of each of them.
OBTAINING COPYRIGHT DISTINGUISHED FROM REGISTRATION OF COPYRIGHT
Before discussing Copyright office registration procedures and alternatives, it is important to understand the distinction between obtaining a copyright and registering or otherwise proving your claim of ownership. There are three steps to distinguish when discussing copyright protection: (1) creating and fixing the work – this gives you copyright protection; (2) placing the copyright notice on all publicly distribute copies of the work – this process puts the world on notice of your copyright; and (3) registering the copyright claim with the Copyright Office – this procedure establishes your best proof of ownership.
Obtaining your copyright is a very simple and easy process. Simply by creating the work (such as composing a song), and by “fixing” it in a tangible medium of expression (such as writing it down or recording the song on CDs, hard drives, or other recordable medium), you automatically obtain copyright protection under the federal law. Your claim of copyright does not have to be registered with the Copyright Office (or anywhere else) to obtain the copyright. The Copyright Office does not issue copyrights; it registers copyright claims.
By putting the proper copyright notice on the copies of the work that are publicly distributed, the writer tells the rest of the world that he/she is the creator and copyright owner of the song, and satisfies the customary practice that the copyright notice be placed on all published (that is publicly distributed) copies of the work.
The copyright notice consists of three elements: a copyright symbol, the year of publication, and the identity of the owner. For all copies of the work (except sound recordings)
*The text of this article applies as well to other forms of work entitled to copyright protection, such as sound recordings, paintings, dramatic works, and literature.
the symbol is either the word “Copyright”, the abbreviation “Copr.” or the symbol “Ó”. The use of the “Ó” (along with the other two (2) elements) also meets the notice requirement in certain foreign countries and under international treaties so its use is recommended over the use of the word “Copyright” or the abbreviation “Copr”.
For sound recordings., the first element of the notice is the symbol “è”. The rest of the elements are the same.
The second element in the notice is the year in which the work is first published, for example, 2010.
The third element in the notice is the name of the copyright owner. The name used in the copyright notice should be the current owner of the composition and not someone who may have been the copyright owner at a prior time.
By adding the words “All Rights Reserved”, additional international copyright protection is secured in Latin American countries that are signatories to certain treaties.
If you publish the work without putting the copyright notice on the copies of the work, you run the risk of placing the work into the public domain. Under the former copyright law, the omission automatically would place the work into the public domain. Under the current law, curative steps can be taken when the copyright notice is defective or is omitted. Briefly, these steps provide that when the name or date or the entire notice is omitted, or the information is erroneous, copyright protection still can be obtained if:
(i) the notice has been omitted from no more than a relatively small number of copies distributed to the public;
(ii) the work is registered no later than five (5) years after the publication without notice and a reasonable effort is made to add the notice to all copies distributed in the United States after the omission has been discovered; or
(iii) the notice has been omitted by another in violation of an express agreement to place the notice on all publicly distributed copies.
The major problem with this curative provision is that the language does not have clear meaning. Until the language has been clarified, you cannot be certain that an omission of the copyright notice falls within the scope of this provision. Consequently, you should make every effort to place the proper notice on all publicly distributed copies of the work. For that matter, even if you do not plan to publicly distribute the copies, you should place the notice on the work anyway. It costs nothing to take such a precautionary step and does not result in any lessening of your rights.
ALTERNATIVE WAYS OF PROVING OWNERSHIP
Since the owner of the composition obtains his/her copyright protection simply by creating the work and ensures that protection by placing the proper copyright notice on all copies of the work that are publicly distributed, what then is gained by pursuing some method of registering the copyright claim?
The principal reason to register a copyright – claim is to obtain independent proof of ownership apart from the testimony of the songwriter. This independent proof is extremely useful in supporting an ownership claim in any infringement action initiated by the copyright owner.
There are certain important benefits made available to a copyright owner by registering the copyright claim with the Copyright Office. The primary benefit is actually more in the nature of a requirement- an owner is not permitted to file an infringement action until the copyrighted work has been registered with the Copyright Office, even if the work is being infringed. Once the copyright claim has been registered with the Copyright Office, then the statute authorizes the owner to file suit.
The statute gives the owner what is known as a “prima facie” presumption of ownership. Essentially, the statute authorizes a court to presume that the registered copyright claimant is the actual owner of the copyrighted work and the burden of proof is shifted to the infringer to disprove the ownership of the copyright claimant.
The Copyright Act grants additional incentives to register a copyright claim before infringement. First, the statute authorizes a court to award statutory damages rather than actual damages to a successful copyright claimant. In an infringement action when a plaintiff sues a defendant for money damages, the plaintiff must prove by documented evidence exactly what his/her damages were in dollars and cents. That sum would be actual damages. Proof of actual damages can be time consuming and therefore costly, since lawyers generally charge by the hour. If, however, the plaintiff is entitled to statutory damages, then the plaintiff only has to document the infringement and ownership and the court is then authorized to find a damage award for plaintiff in an amount no less than $750.00 per infringement and no more than $30,000.00 per infringement. If willfulness is proven, (that is, the infringers knew they were violating your copyright but did it anyway), then the ceiling on the award increases to $150,000.00 per infringement. The dollars to be awarded therefore can add up very fast and the costly need to prove actual damages is eliminated. With an award of statutory damages, the burden is on the defendant to persuade the court that any damages suffered by the plaintiff were too small to justify any award above the minimum. By placing this burden on the defendant, his/her costs of defense are also increased. Of course, to award damages the court must first find copyright ownership and an infringement.
Another advantage of registering before any infringement is that the plaintiff, on a successful verdict, is allowed to recover reasonable attorneys’ fees and costs, with the unsuccessful defendant being required to pay for those fees and costs. It is easy to see that there are some very real benefits to be gained from registering a copyright claim with the Copyright Office.
As an aside, if the infringement occurs within three months after the publication of the copyrighted work but before registration, then so long as the registration is made before the end of that three month period after publication the additional benefits described above will still be available.
Registration of a copyright claim with the Copyright office is very basic. To register the copyright claim in a musical composition, the claimant must complete and file a Form PA (performing artworks). Form PA and the other paper version of the registration forms (for example, Forms SR (sound recordings), VA (visual artworks), and TX (literary works)) may be obtained from the Copyright Office at no cost. These paper forms are not accessible on the Copyright Office website; however, staff will send them to you by postal mail upon request. The telephone number for the Copyright Office in Washington is (202) 287-8700. Most major cities have a federal building which includes an office that handles government publications. Along with the completed registration form send a check or money order in the amount of the current filing fee of $85.00 (do not send cash) and one (1) copy of the work if it has not been published, and two (2) copies of the work if it has been published. In the alternative to using a designated form, for example, Form PA, you instead may use a Form CO, which applies to many different kinds of creative works. The current filing fee for a Form CO is $55.00, and you can get the Form CO in PDF form (paper filing with 2-D barcode generated form) from the Copyright Office’s website, www.copyright.gov.
The Copyright Office website contains full details on the registration process, and should be reviewed carefully before you proceed with the registration of your work.
The Copyright office defines a copy of music as the best copy of the work that you have, in the following order, transcribed lead sheets or compact discs.
The regulations of the Copyright Office permit the owner of songs to register a number of those songs in one filing for a single current filing fee of $65.00, whether by lead sheet or compact disc. If you select this process, the following procedure is recommended (note, there is a statement in the instructions on the Copyright Office website that the Form CO cannot be used for certain group registrations):
(a) If you use compact disc, identify yourself on the compact disc by name; indicate the number of songs that are on the compact disc; recite the number and title for each song before recording it on the compact disc; perform the song; when finished, state that the song is completed; recite the number and title of the next song; repeat the same procedure until you have recorded all the songs you wish to register.
(b) You will have to identify the compilation of songs by a single title on the Form PA. For example, “Collective Compositions of S. Hitmaker, Series I”. The Form PA has a continuation sheet (“___/CON”) with blank spaces that can be downloaded from the Copyright Office website. It is recommended that the titles of the individual songs be listed in the bottom blank space in the same sequence they are recorded on the tape. Next to each song title you could parenthetically reference the year in which the song was created. On the front page of the Form PA in block #3 where you indicate the year of creation, you should put down the year for the most recently created song. The Copyright office will not accept an application which recites in that space a year date for each of the individual songs listed on the continuation sheet. If you use the Form CO and process it on the Copyright Office website (the current filing fee for which is $55.00), you will be able to select an option to list the individual song titles (see Paragraph 3(e) below).
If you want to file a claim of ownership in a sound recording along with your songs and you are the sole author, you could register your songs and the sound recording, identifying yourself as the author of the sound recording, words and music. You can use the Form CO for this combined filing online, for a current filing fee of $35.00 (single author, same claimant, one work, not for hire). The current fee for all other online filings is $55.00.
This procedure will work only if you are the owner of all the songs on the CD (and the owner of the sound recording if you also are registering your copyright claim in that property). You cannot group different owners of different songs on the same CD. If there is more than one owner of the songs (and if relevant the sound recording) and they are the same owners for all the songs (and sound recording if relevant), then you can still use this procedure, naming all such claimants.
Some attorneys and music publishers are not in favor of this process because it may complicate segregating one of the songs from the group of songs on a subsequent copyright transfer of just one of the songs, such as under a publishing agreement. On the surface, this may be a problem. Careful drafting, however, specifically identifying the song to be transferred can eliminate that concern. Further, the listing of separate titles on the continuation sheet of the registration form facilitates the process of transferring only one song. In the meantime, you will, for a very small number of dollars have obtained the benefits of registering your copyright claim in a number of compositions.
One other drawback with this procedure is that the titles of the individual songs will not be indexed and cross-referenced to your name as author. Consequently, somebody trying to identify you as an author of one (1) of the songs listed as a group would not be able to locate you because the song itself is not separately indexed. One (1) way of overcoming this situation is to do a follow-up registration on what is known as a Form “CA”. On this form, you can request the Copyright Office to separately index the titles of each of the songs listed in the earlier registration and have that separate indexing cross-referenced to your name and the number assigned to that earlier registration. You must wait, however, until you receive the initial Form PA (or Form CO) registration from the Copyright office so you can refer on the Form CA to the registration number issued by the Copyright Office on the Form PA or Form CO. The current fee for this procedure is $100.00. Even with the additional filing fee: the aggregate cost generally will be less than registering each song separately if you have many songs that you are registering as a group.
Make certain that you keep a copy of the registration form for your records. Do not be discouraged if it takes some time before you get a response. The Copyright Office is backlogged. It will take many months to receive the registered form.
The day of registration is the date on which the materials are received and accepted by the Copyright Office. That date will appear on the registration certificate you receive. For your own peace of mind, you can submit your package to the Copyright Office by registered mail, return receipt requested since the return card is mailed to you much sooner than the certified registration form. At least you will know that the Copyright Office has received your materials.
At your option, you can include lyric sheets with your Form PA or Form CO and compact disc. Make certain that all the elements, the tape, the registration form and the registration fee (and lyric sheets, if any) are securely fastened together so they do not get confused with another person’s package.
Also, if you complete a Form CO online, the Copyright Office will issue you a 2D bar code for that registration, which you can submit online, and you can print-out a shipping label with that same 2D bar code to send in to the Copyright Office with the two required deposit copies of the songs/recordings if they have been published (i.e., made available for public distribution, including online digital downloads). On receipt, the Copyright Office will match the 2D bar code on the shipping label with the 2D bar code assigned to your online registered Form CO.
The Copyright Office website has clear tutorials on how to register your work electronically (“eCO”), so there is no need to repeat those instructions here. You are recommended to review them online at the Copyright Office site. A brief overview of the relevant information, however, is as follows:
(a) Anyone can use eCO to register basic claims to copyright, even those who intend to submit a hard copy(ies) of the work(s) being registered.
(b) One of the requirements for establishing an eCO account is to provide an e-mail address. That e-mail address is not available on the public record.
(c) Currently eCO accepts basic registrations only, including: (i) any single work; or (ii) a collection of unpublished works by the same author and owned by the same claimant; or (iii) multiple published works contained in the same unit of publication and owned by the same claimant.
(d) Registering a claim to copyright through eCO involves three steps in the following order:
(i) Complete an application.
(ii) Pay the associated fee (pay online with credit/debit card or ACH transfer via Pay-gov, or with a deposit account).
(iii) Submit your work.
(e) A collection of works may be registered with a single application if either of the following requirements is met:
(i) The collection is made up of unpublished works by the same author and owned by the same claimant; or
(ii) The collection is made up of multiple published works contained in the same unit of publication and owned by the same claimant.
(iii) When using the online eCO registration process, and you want to list the titles of the songs on the album, list the overall album title as “Title of Larger Work”, and also the individual track/song titles by selecting “Content Titles” as the “Title Type” category.
(f) You can upload an electronic copy of your work in eCO.
(g) The “Electronic Deposit Upload” window in eCO enables you to browse for and select files one at a time, then upload them as a group in one “session”.
(h) To register works that require hard copy deposits to satisfy Library of Congress deposit regulations, submit an application and payment in eCO and then create and print a shipping label to be attached to the hard copy(ies) of your work for delivery to the Copyright Office by mail or courier.
To avoid damage to your deposit due to Copyright Office security measures, package the following items in boxes rather than envelopes for mailing to the Copyright Office.
(i) Electronic media, such as audio cassettes, video cassettes, compact discs, and DVDs.
(iv) Slick advertisements, color photocopies, and other print items that are rubber- and vegetable-based.
Also, note that compact discs/DVDs packaged in standard full-sized jewel boxes are more likely to survive the mail radiation process than those packaged in slim-line case.
The use of the poor man’s copyright entails mailing yourself a copy of a compact disc or other media or lead sheets of your song by certified mail. On receipt of that certified mailing, the addressee (you) does not open it. Instead, the package is put away. If an infringement action is ever filed and the case goes to trial, the plaintiff can introduce the sealed package as evidence of ownership. This approach has some merit in that it does provide a form of documentation of a claim of ownership as of a point in time. The court must first be convinced, however, that you properly mailed the package to yourself and that it had never been tampered with or opened while in your possession. In effect, you must rely solely on your own testimony, without benefit of third party testimony, which would be provided by a private registration service, or the “prima facie” proof of ownership recognized by registration with the Copyright office. Also, none of the benefits of Copyright Office registration discussed earlier in Section A1 would be available to you in a litigation context under a “poor man’s” copyright.