This is a two-part article. The second part is here.
The world of Copyright Law is shrouded in all kinds of myths, rumors and half-truths. When you’re a high flyer you’ll have a team to take care of all your legal needs, but in the meantime it’s worth getting some basic principles straight.
First, an obvious disclaimer included at the insistence of my lawyer friends: this is obviously not legal advice. I’m just a guy who writes songs trying to help you all out. If you need proper advice, hire a professional.
The concept central to Copyright Law is that of Intellectual Property, or IP.
It works pretty much the way ordinary property works: to avoid society descending into chaos, humankind developed the concept of ownership. Loosely put, if I own a T-shirt, a ham sandwich or a bronze statuette of Napoleon Bonaparte I’m at liberty to decide what happens to it. I can choose to give or lend it to someone, with or without taking money in return. If someone else does something with it I don’t approve (such as taking it without permission) I’m entitled to object and, in serious cases, even have that person taken care of by our legal system.
The difference between IP and regular property is that you can’t touch IP. It’s made up of ideas, creativity and expression. Some people find it hard to equate the value of these intangible things to actual objects, but there’s a really important concept behind it: namely, that ideas are really important.
Cast your minds back to the Fifteenth Century. America wasn’t even called that yet. The Black Death was doing away with a third of Europeans. The Mongols and The Chinese continued their decades-long lovers’ tiff. And to add insult to injury, there was no idea of Intellectual Property. You could spend years developing the latest in dung cart technology, but the second you sold one to some shabby peasant from down the block, they could make their own and rake in the profits off the back of all the hard work you did.
Luckily for us, with the Fifteenth Century came the Renaissance, an explosion of innovation in the Art, Science and Philosophy, and the first seedlings of what we would come to call Intellectual Property Law. In short, this means that today if you create something original you are entitled to own it in a way very similar to the way you might own an actual object you could touch.
Intellectual Property rights cover a handful of different things, including Patents, Trademarks and Trade Secrets. But of most interest to artists is Copyright: Intellectual Property tied up in an original creative, intellectual or artistic work.
Copyright is the right of whoever owns the IP in such a work to decide how the work is used. It’s an exclusive right, which means that they’re ultimately the only person who gets to make that decision. The word ‘Copyright’ obviously comes from the right to copy a given work, but it also includes other rights, such as the right to distribute, the right to perform, the right to adapt or make derivative works (such as a song cover).
For work you create today in the USA or most of Europe, generally speaking this is your right (or the your legal heir’s right) until seventy years after you die. If there are multiple authors, the Copyright lasts until seventy years after the last author to die.
There are, however, plenty of exceptions to this rule. Some are interesting if mostly insignificant: in France if you die in active service for your country your Copyright protection is extended by thirty years. Vive la Republique! Some are more significant for songwriters: sound recordings and video material are usually counted as seventy years from the date of release or broadcast, irrespective of how long you live for. For general interest information you can check Wikipedia. For serious legal information, well, you know the drill: hire someone.
What is protected by Copyright?
An important concept of Copyright Law is that ideas and information cannot be copyrighted in themselves. I can’t copyright the note middle C, nor can I copyright the idea of using a major key, nor the historical fact that Marilyn Monroe died in tragic circumstances in 1962. But I can combine all of these separate ideas and express them in a specific and personal form, call it ‘Candle in the Wind’, own the Copyright in that specific work and make millions from it.
The key here is expressing something in a specific form or manner. If you make a song from a story you overheard on the bus, the Copyright in that song belongs to you. If you pull up a newspaper article and get inspiration for a new song, again, the Copyright in that song is entirely yours. However, if the newspaper article opens with a four-line poem that you quote verbatim in your song, then you are required to seek permission from the Copyright Holder before using it.
One important implication of this in the highly collaborative world of songwriting is that people who throw around ideas for your song are generally not entitled to any stake in the Copyright. Producers may give you song ideas. Singers may have a better idea for a riff. These people can suggest as many ideas as they like, but whoever (you and/or your collaborator) is the final decision maker on what goes in the song is its creator and thus the owner of the related IP.
A common myth is that you have to do something to make sure your work is protected by Copyright. But as you guessed, it’s a myth. Once you fix your work in some kind of tangible form – originally this meant putting it down on the page, though now it also includes setting it down electronically – your work is protected.
So don’t worry about that old trick of mailing a copy to yourself. Though this has occasionally been used as evidence in court hearings, it’s not a flawless system anyway: if the postmark isn’t across the seal there’s nothing to stop you mailing yourself a blank envelope and sealing it shut with something at a later date. In most cases if someone is ripping off your work, given the state of technology today, proving the exact date you created it is the least of your worries.
Under current law there are no significant consequences of leaving off Copyright notices, but they serve as a helpful reminder to people dealing with your work. They look like this: © 2015 Joe Bloggs. If you like, you can even add All rights reserved. Sound recordings are marked with a capital P in a circle (for Phonorecord) instead.
In the US, it is possible to register your work with The Library of Congress. Those guys love to collect new work. Again, this isn’t necessary to own the Copyright on what you create – documenting it on a page or in computer memory takes care of that. Registering, however, does bring you certain advanced protections – making things easier in particular if you have to file an infringement action later down the line. So realistically it’s worth doing only if your work is going to be distributed publicly. Otherwise you might as well save yourself the fifty bucks. You can find out more and register at www.copyright.gov.
British writers can register at www.copyrightservice.co.uk. Writers from other countries can find their Copyright office by searching Google. The good news is that the vast majority of countries are signatories to the Berne Convention, which means all these countries elect to honor the Copyright Laws of all the others.
There we have it. That’s the basics of your rights as the person who creates an original artistic or literary work. In Part Two, we’ll take a look at what happens when other people get involved, delving into such saucy topics as Work for Hire, Collaboration and Copyright Infringement.
Ready to go? Let’s do it.