KEYWORDS:
Understanding Music Law
“I’m not going to fight for my rights anymore, I’m going to claim them!”
-Flower Frankenstein; Writer/Novelist, Founder of Sugar Valley Street Faire, Large Scale Outdoor Sculpture/Installation Artist
Intellectual Property
By Paul Zollo
People often speak about the nature of the ownership of songs with language such as “Who can really own a song? A song is ethereal, ephemeral. It belongs to nobody.”
Wrong. A professional songwriter makes his living by writing songs, and the ownership of that song is directly defined by proof of authorship. Without authenticated authorship of the song, the songwriter cannot have the song published or performed and earn performance royalties from it. A song — like any artistic work — is considered an intellectual property. And fortunately for us in America, there is protection under law that governs the authorship and ownership of Intellectual Property.
The entire concept of intellectual property and the rights thereof is one that has emerged in recent years, though the product of intellectual properties have been with mankind for centuries. Intellectual properties are creations of the mind, and are often non-physical in nature. An idea is an intellectual property, as is the plot of a book or movie, and certainly a song. A song is non-physical — it exists in the mind of the creator, the songwriter, until that songwriter or another performer performs the song and that performance is recorded. The record of that performance is then physical, and exists in our material world, but the song itself — the creative fusion of words and melody — are non-physical. A song can also be made physical by a transcription of the music with the words. But it’s precisely the song’s non-material nature that has led many to believe that it belongs to no one — how can somebody own something which exists only as an idea — something which is mental but not physical? This is where the law of intellectual properties comes in , to offer legal protection for those properties, so that creators can secure their rights of ownership and authorship of those intellectual properties.
So technically intellectual property Is a legal field that refers to creations of the mind — this includes songs and all forms of music, as well as literary and artistic works and also inventions, symbols, names, images and designs used in commerce. These include copyrights, trademarks and patents. Under intellectual property law, the holder of one of these properties has designated exclusive rights to that property.
For our purposes here, we are dealing mainly with songs as intellectual properties — and the authorship and ownership of songs as they are exploited commercially is a copyright. A band’s name, however, is protected as a trademark. Let’s first look at copyright protection for songs, and how it works in the American legal system.
The official registration of a song — the definition of its ownership — is a copyright. Copyright protection is the means by which a songwriter can protect and preserve his ownership/authorship of the song. We will explain what that is, and how you get one, later. But it’s important to understand that while you can get copyright protection for the song itself (and a song is defined legally as the combination of two elements — lyrics and melody), you cannot register a copyright for a song title. And for this reason, there can be hundreds of songs with the same title.
Officially, according to Copyright Law, a copyright for a song goes into effect the instant a song is put into a fixed form. The fixed form can be a musical transcription of the song with lyrics, or a recording of the song. However, if authorship of your song is challenged, you must prove that you are the holder of the copyright, and to protect your ability to do this, it’s advised to register your copyright. Registration of a copyright does not offer added protection for a song; it’s a way of establishing a public record of your claim of authorship and the date of creation. Though registration is not required, it is encouraged. Registration will establish solid evidence of ownership and validity of your copyright if it is made within five years of the creation of the song. Registration will ensure the receipt of any licensing fees pertaining to your songs. This means that if your song gets used in a movie or a TV show, you will be insured, as the registered writer, to receive any money that is generated.
To register a copyright, you must first fill out Form PA from the Copyright Office, – you can attain this directly from the Library of Congress via mail or download a PDF file of it from their website. Then you fill it out, and send it with your fee (which is presently $45 per song) and a recording or transcription of your song to the Library Of Congress, the address of which is:
Library of Congress
Copyright Office
101 Independence Avenue, S.E.
Washington, D.C. 20559-6000
For more information, you can go to their website, which answers all these questions clearly or call 202-707-3000.