Copyright FAQ – with a Lawyer!

Copyright is one of those things that any composer, songwriter, or recording musician/producer has to deal with; you know you need to have it for your songs and recordings, and we all basically understand the idea of legally protecting our music, but when it comes down to the specifics of copyright, there can be a lot of questions. When I released my EP, Foundation, last year, a number of those questions came up. There’s a lot of information out there on copyright, some of it “internet knowledge” and some of it indecipherable lawyer-speak. I contacted my good friend — and music/arts attorney — John Bradley of the Bradley Legal Group PA, to get real, understandable answers from a reliable source.
1. Isn’t my music copyrighted as soon as I create it? Is there really an advantage to registering it with the Copyright Office?
The United States Copyright Law says that “an original work of authorship” is entitled to copyright protection once it has been “fixed in a tangible form.” As with any legal definition, there are a number of components there. 
First, it needs to be “an original work of authorship.” That means it cannot be a mere duplicate of someone else’s work or something the author already owns. 
The second part of the definition is that the protection starts once something is fixed in a tangible medium or form. That means that the author needs to do something to embody or preserve the creation of the original work. That can include something simple like writing down the words and the chord progressions or recording an acoustic performance on a cell phone, all the way up to full-blown studio recordings of a song. Once that happens, the US Copyright Law protects your new original song creation.
However, the scope of that protection is limited without a copyright registration. Without a registration applied for before infringement occurs, an author can only recover actual losses proven as a result of the infringement, and an infringer can be ordered to stop infringing.
A US Copyright Registration provides an author with more protection, in addition to the rights the author already has for an unregistered work. By obtaining a US Copyright Registration, the author does not have to prove when the work was created in a claim for infringement. In addition, when a song is registered, the author can demand the payment of statutory damages (minimum and maximum money damages laid out in the Copyright Act) instead of having to prove actual damages (the specific amount of losses the author suffered as a result of the infringement). Lastly, when a work is registered, an author can demand a payment of the author’s attorney’s fees in a lawsuit for infringement. None of these rights are available when a registration is not present. However, it is crucial to apply for the registration before the infringement occurs — it’s too late to get these benefits if the infringement occurs before you register the song.
2. Can I just mail myself a sealed envelope with a postal date on it and consider it copyrighted?
Definitely not. All the registration rights only apply when the Copyright Office registers a work. The old “envelope” tale, also known as the “poor man’s copyright,” may be helpful in trying to establish a date of creation of the work, but compared to the ease of registration, it is not anything a smart author should ever rely upon. Applying for a US Copyright Registration is fairly straightforward and cheap.
3. Can I copyright under my name, or do I need to have a publishing company to copyright my music?
An author certainly can register a song in the author’s name. Use your full name, including a middle name or initial, to avoid confusion with others who may have the same name. An author can use a publishing company, but most do not need to do so in the early parts of their career. It is not until the author starts to do business related to the particular song that a publishing company is important. As well, once an author wants to start using a publishing company, the author is going to have to follow local laws on setting up a business entity like a corporation or LLC, or even a fictitious name as a “d/b/a” (doing business as), and may need to deal with taxes and annual fees for that business.
4. Do I need to be a business, with a business address/PO Box and bank account, or can I copyright as just an individual?
There is no requirement for a business address when registering a copyright. An author can certainly use a home address. Some choose to use PO Box addresses so that they can keep their address out of the public records. The state and local laws where an author lives will determine whether an author needs to come up with a business address if the author sets up a business entity. However, most authors, in the early part of their career, can simply register in their own name at their own address.
5. What if someone else has already copyrighted a song with the same title as mine? Can I still copyright mine?
Yes. Song titles are not subject to copyright protection. In fact, there are many songs registered with the US Copyright Office with the same title. This makes it important to provide the Copyright Office with the full and correct information, including author’s full name and year of birth.
6. What if someone has the same name as me? Do I have to use a different name to copyright my music?
Definitely not. Once again, there are many works of authorship registered with the Copyright Office. Oftentimes, the authors’ names are the same or similar. Therefore, using a full name, including middle name or initial, and a year of birth, helps to distinguish the works of different authors.
7. Do I need a lawyer to handle the copyright process?
It depends. If an author provides all necessary information correctly to the Copyright Office, then there is no issue. However, when the song information gets more complicated, including multiple authors, samples, translations, covers, etc., it is more likely for a registration to have errors. What our office often does is charge a client for filing one copyright application and show them the basic process. After that, we answer questions as needed, while the client registers additional copyrights on their own.
8. What is the difference in copyrighting the music versus copyrighting the recording? When should I use each? Do I need to do both?
These two differ greatly, and some education on the basics of music copyright is required. There are two protectable copyrights in each recorded song.
The first is the copyright in the underlying musical composition. An author only needs to “fix in a tangible form” the words and music to an original work to protect the rights in the musical composition. That “fixing” does not necessarily even require a recording and can be as simple as writing the chords and lyrics on a piece of paper. The musical composition can be protected by a registration filed using Form PA with the Copyright Office. 

However, given the ease of making some type of a recording today, the use of a recording in filing the copy of the work in a recording format (for example, MP3) also serves to protect the sound recording, as it is registered with the Copyright Office. Thus, an artist can get a “two-for-one” by using Form PA and submitting a sound recording of the work.
The United States Copyright Law also protects a sound recording of a musical work. Of course, there can be many recordings of a particular musical composition, often by artists and record companies that do not own rights in the underlying musical composition. This is commonly referred to as a “cover” recording. In this circumstance, the party creating (or paying for) the recording is the owner of the master recordings and the sound recording copyright.
9. How does it work when two (or more) people cowrite a song and want to register it for copyright?
When two or more people coauthor a song, they are each entitled to their respective percentage of ownership in that musical composition. The natural question is always: “What percentage?” The answer can be different in each circumstance. For instance, if one coauthor made a couple of lyric changes in a song, the other author(s) might believe that should warrant a small percentage. This circumstance might be different if the small lyric changes produced the hook in the song. Sometimes a very smart band works using a written agreement, which sets out what percentages of original songs each band member owns. It can be an “all-for-one and one-for-all” approach, where songwriting percentages are equal or not.
We encourage our clients to utilize a simple coauthor songwriters’ agreement during all cowrite sessions. At the end of each session, everyone signs and sets out the various percentages of ownership of everyone in the session. This is a great practice for a number of reasons. First, coauthors must have a writing signed by all coauthors if the percentages are not equal. Second, everyone’s memory is best at the time of the event. Third, money is typically not an issue at that point. When money plays a bigger role later, everyone’s memory has a tendency to change. Don’t worry if the song isn’t done or if it has no title. Give it something generic with the date in it (example: Song020118), but sign a coauthor agreement right away.
Finally, copyright registrations act differently. If coauthors are listed on a registration, the Copyright Office (and a judge relying on such registration) will presume that the percentages of ownership are equal. If not, there must be something in writing confirming that to be the case, thus the need for a coauthor agreement.
10. How does it work when a band records one of my songs on their album? Who does the copyright?
When a band makes a cover recording of one of your songs that has already been released and registered, they are required to obtain a compulsory license to do so. It is compulsory because the Copyright Law requires an author to allow this to happen in order to promote the arts, provided a statutory royalty is paid.
The only copyright that the cover band (or its record label) is able to register is in the sound recording, as the cover band is not the owner of the underlying composition, even though they (hopefully) have a compulsory license to allow the recording.
11. What do I need to submit for copyright? I don’t read or write music; do I need sheet music? A CD? An MP3?
A US Copyright Registration of a musical composition can be based on a simple set of lyrics with the chords written on it. However, this method may make it difficult to convey all that is going on in the song. The Copyright Office encourages registrations by uploading a digital file onto their server. The most common way to do that is to upload an MP3 file. The recording does not need to be elaborate: a simple cell phone recording is adequate. However, a more advanced recording can capture many different elements of the subject work. Remember, if someone infringes an author’s work, the recording submitted has to be sufficient to demonstrate those distinct elements.

12. If I copyright a sound recording, how do I copyright it before the album comes out so I can put the copyright notice on the album?
An author need only submit an application for registration before the record release. Remember, an author owns the copyright for the composition and sound recording at the moment they are fixed in tangible form. Thus, it would be accurate to reference the typical language on the cover art “Copyright Mitch Gallagher 2019.”
13. I wrote the songs in 2016, but the album wasn’t finished until the next year. When should I copyright? Do I do two copyrights?
The question revolves around whether the musical compositions have been “published” before the album is released. In today’s world, that would include posting them anywhere on the Internet or sending recording copies around to third parties for their review, consumption, etc. If the compositions had not yet been published, the author would use the year of release of the album.
If a song was published earlier, that fact must be reflected on the registration of the underlying composition. Although it may not ultimately be a big deal, the author needs to make sure the composition is registered correctly.
14. Is it better to copyright a collection or a single song? If I copyright a collection, can I still release a single or change the songs on the album?
The best practice is to register each song separately, but it is also the most expensive. It is the best practice because if a song is infringed and the author brings an infringement action, the author can seek recovery of the greatest amount of money damages. If a song is registered as part of a compilation (group of songs), the author is faced with a defense in court that the damages for one song must be limited fractionally based on the total number of songs in the compilation.
As a practical matter, many authors register their songs in groups called compilations. A compilation allows an author or identical group of authors to register a number of compositions that share identical characteristics. Those characteristics would be same author(s) and same year of first publication (or all works being unpublished). As long as all of those characteristics are the same, an author can protect, in more of a blanket fashion, a group of compositions. The author does not need a formal title for the compilations, and we often suggest something as simple as, “Mitch Gallagher Songs 2014.”
15. If I move or change contact information after I copyright a song, do I need to change the copyright or update it?
The practical answer today is that most people don’t do that. Certainly, an author can update information by filing a “CA Form” allowing “correction” of certain data. However, with social media and registrations with performing rights organizations, it is easy to track down a songwriter.
16. If I sign up with ASCAP or BMI, do I still need to copyright my songs?
Yes. Registering with a performance rights organization (PRO) like ASCAP or BMI does not give the author any of the rights provided by a copyright registration. Registration with a PRO allows the PRO to collect royalties on behalf of its member authors for the public performance of their songs on radio, films, television, and commercials. It can also be a place where those who wish to make a cover recording can find information sufficient to make that cover recording, license samples, obtain/authorize translations, etc.

It’s a good idea for serious songwriters to affiliate with one of the organizations, as they offer a lot of benefits to their authors, including events throughout the year that can be very beneficial to authors.
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