1. How can BMI help me?
Musical copyright is complex and often confusing to the new songwriter. BMI’s Writer/Publisher Relations department is available to help you over the rough spots and answer any questions you may have about your songs, compositions and copyright. For our phone numbers and addresses, click here. Many of the most frequently asked questions are addressed below.
2. How does my song become copyrighted?
Do not confuse acquiring a copyright with registering your claim to copyright. You acquire copyright (legal protection of the law) automatically when your work is “created,” which is defined as being “fixed” in a copy or recording for the first time. For example, the moment that you lift your pen off the finished lead sheet or turn off your PDA after saving your composition, the song is deemed “created” and the copyright begins.
Registration of your copyright is recommended (but not required) and is accomplished by filing a Form PA (paper) or a Form CO (paper with a barcode) with $45 and one copy of your unpublished song on a record, tape or lead sheet, two copies if the song has been published. (As of August 1, 2009, the fees will be increased to $65 for a Form PA and $50 for a Form CO). Online registration is available at a reduced rate of $35 and allows submission of an electronic copy of your work. Song lyrics without music can also be registered, whether they are published or not. (A song is considered to have been “published” when lead sheets or printed copies of the music, or copies of a record, tape or digital medium containing the song, are distributed to the public by sale or other transfer of ownership, or by rental, lease or lending. Public performance of the song, however, does not by itself constitute a “publication.”)
Registration is effective when the Copyright Office receives your application, copies and fee, not when you receive your certificate back, which could be many months later. Although it is not necessary, if you send your Form PA with the proper copies and fee to the Copyright Office by certified mail, return receipt requested, the date stamped on your certified mail receipt can serve as evidence of your effective date of registration and you can thereafter send your song to prospective publishers without worrying about proof of registration in the event of infringement before you receive the actual certificate.
Information about obtaining Copyright Office forms and procedures for online filing can be accessed here.
Registration of your copyright is usually necessary in order to go into court and sue for copyright infringement, has a bearing on the award of certain damages and may carry some weight as proof of time of creation, but it is not a condition to the existence of your copyright.
Registration of a published work also fulfills the legal requirement (with a few exceptions) that two copies of every work published in the U.S. be deposited in the Library of Congress for its collection within three months of publication. Failure to do so can result in fines, but will not cause you to lose any copyright protection. Deposit (accomplished simply by mailing the necessary copies to the Copyright Office indicating they are for deposit) is required even if no registration is made of the work, but registration as indicated satisfies deposit.
3. Can I register more than one work at one time for one fee?
Yes. The Copyright Office will accept registration of an unpublished collection of works for a single $65 fee if all of the following requirements are met:
a) You put all the works together in an orderly manner with a single title. (Any title describing the collection is acceptable, even one as general as “The Works of [Your Name].”) If you send lead sheets, you should fasten them together or put them in a folder. However, you can send a record or tape containing all of the songs instead.
b) The copyright claimant for every selection and the collection is the same.
c) All of the selections in the collection are by the same author or, if they are by different authors, at least one of the authors has contributed copyrighted material to each selection.
Only the title of the collection, not the titles of the individual works, will appear in Copyright Office records. However, once you receive the copyright registration certificate for the collection, you can then file Form CA, listing the individual titles in the collection, and for another $100, your works will be identified individually in the Copyright Office records. Form CA is also used to correct mistakes on an earlier registration.
A published collection may be registered under its title for a single fee if all of the works are owned by the same copyright claimant.
4. Must I still put a copyright notice on published copies of my song?
No. Putting a copyright notice on visually perceptible copies of a published (publicly distributed) work is purely voluntary. Its omission will not cause a loss of copyright protection. However, if a copyright notice is in fact put on the work when it is published, anyone who is accused of infringing it cannot raise the defense that he was “innocent” and lessen the amount of damages for which he would be liable. Before your songs are published, you might indicate “Unpublished [year] by [Your Name]” on copies of your works to alert prospective publishers as to their status.
Although it is not required, since notice identifies the copyright owner and year of first publication, it is a good idea to include it. Notice should appear in the following form: [”(c)” or “Copyright” or “Copr.”] [year of first publication of the work] [name of copyright owner].
5. How long does a copyright run?
A copyright that is not registered anonymously or under a pseudonym and that is not in a work made for hire runs for the author’s life plus 70 years after his death.
6. If I collaborate with one or more writers, how is the term of copyright measured?
As long as you and your collaborators do not work for hire, the 70-year period is measured from the date of the death of the last surviving collaborator.
7. If someone hires me to write a song for them, who owns the copyright and how long does it run?
For such “works made for hire,” as they are called, the employer is considered the author, and the copyright, which the employer owns, runs for either 95 years from the time the work was first published or 120 years from the time you created it, whichever is shorter. (That is the same copyright term for an anonymous or pseudonymous work.) In order for the work to be considered “made for hire,” it must be prepared by an employee in the scope of his employment under a traditional employee-employer relationship, or else it must be commissioned as one of several special categories of works (such as part of a motion picture or other audio/visual work) with there being a written agreement between the parties that it is to be for hire.
8. Are song titles copyrightable?
No. However, sometimes a particular title becomes connected with one particular song (such as “Fergalicious”). In that case, anyone else attempting to use that title for their song would likely be in violation of property rights in the title, which belong to the copyright owner of the first song because of its notoriety.
9. If I have works in my desk drawer that have never been published or registered with the Copyright Office, are they still protected by “common-law” copyright?
No. In 1978, common-law copyright was abolished for all works in existence that was of the kind that could have been registered for copyright. As long as the work was never copyrighted, has not fallen into the public domain and was created before January 1, 1978, on that date a statutory copyright automatically attached to the work for the author’s life plus 70 years. If an unpublished song that otherwise would have expired was published before December 31, 2002, the copyright extends to December 31, 2047. These rules hold true as well for works of deceased authors that have not been published or copyrighted or fallen into the public domain.
10. If I assign my copyright in a song to a publisher, can I ever get it back?
Yes. Regardless of anything in your songwriter agreement with the publisher, a work not made for hire that was assigned by you on or after January 1, 1978 can be reclaimed by you (or your copyright-entitled heirs) 35 years after the work is published or 40 years after the assignment, whichever is earlier.
The law specifies the mechanics of giving notice to the publisher in order to accomplish this. Detailed instructions can be found in the Code of Federal Regulations, Section 201.10.
11. How is the copyright assigned?
By written instrument to the party to whom you are making the assignment. You cannot validly make an oral assignment of copyright.
12. Does the copyright in a record protect the copyright in the song, too?
No. The sound recording copyright, registered on a Form SR and indicated on the label by the letter “P” in a circle, is for protection of the sounds on the record and usually belongs to the record company. The song copyright is registered on a Form PA and shown on copies of the work with a © or “Copyright” or “Copr.” [year, Name of Owner], and usually belongs to the publisher. But if the same persons own the recording and the song, one registration on an SR form will cover both. It is always a good idea for copyright owners of songs being recorded to ask that their copyright notice be carried on the record label for identification purposes. Errors in or omissions of the notice, however, have no effect on copyright protection.
13. What is the difference between a performing right and a mechanical right?
Both the performing right and the mechanical right are granted to a copyright owner by law as two of the distinct parts of a copyright.
The public performing right entitles the copyright owner to receive royalties when his song is sung or played, recorded or live, on radio and television, as well as through other surveyed media such as the Internet, live concerts and programmed music services. Such royalties go to both the composer and publisher through their performing rights organization, which grants licenses to perform the music in their respective repertoires to thousands of users of music in public places, such as broadcasting stations, hotels, clubs, colleges, restaurants, stores, etc. More details about the responsibilities of music users can be found in BMI’s brochure, “The Legal Aspects of Performing Copyrighted Music.”
The “mechanical” right is really the right to reproduce a piece of music onto records or tapes and certain digital media. (Non-mechanical reproduction includes such things as making sheet music or printing songbooks, for which royalties are paid by the publisher to the composer.) When reproduction of music is made onto a soundtrack of a film or TV show, the reproduction is called “synchronization,” and the license that the TV or film producer needs to obtain is called a synchronization or “synch” license. Mechanical royalties and synchronization fees are paid by record companies, digital media providers and film and TV producers directly to the copyright owner, usually the publisher. The Harry Fox Agency (601 West 26th Street, Suite 500, New York, New York 10001, (212) 834 0100, harryfox.com) represents over 30,000 U.S. publishers in granting mechanical licenses and collecting fees for them from the record companies and digital media providers who need them.
14. When is a mechanical license required to be issued?
Any time a recording has lawfully been made with the permission of the copyright owner, anyone else has the right to make another recording of that work (hence the term “compulsory” license) as long as they pay at least the statutory royalties. But the copyright owner can deny permission to anyone seeking to make the first recording of the work.
15. What are the current statutory royalties for making and distributing phonorecords and permanent downloads and ringtones (“mechanical” royalties)?
For the period 2008-2012, the mechanical royalty rate is nine and one-tenth cents (9.1¢) per song for each copy of the record or tape made and distributed, or one and seventy-five hundredths cents (1.75¢) per song for each minute of playing time, whichever is greater. The mechanical royalty rate for a ringtone is 24 cents.
16. I have songs that were in their first term of copyright under the old copyright law. Do I have to do anything in order to get the additional 47 years of protection provided by the current Copyright Act?
No. Thousands of songs were in their first copyright term under the old law when the current law became effective. In order to receive copyright protection beyond the first term, all works originally copyrighted prior to 1964 had to be renewed in their 28th year or they fell into the public domain.
Unfortunately, many important works lost their copyrights because an author, his heirs or the copyright owner forgot to file the renewal form on time. To remedy this situation, Congress amended the law to provide that all works originally copyrighted between 1964 and 1977 were extended for an additional 67 years automatically - no registration form needed to be filed in order to renew them.
17. One of my songs fell into the public domain because it wasn’t renewed on time. Can copyright protection for it ever be revived?
Unfortunately, no. Once a song has become part of the U.S. public domain, it doesn’t regain protection and can be used for any purpose by anyone without the need to pay compensation to the composer or previous copyright owner. However, it probably is still protected in foreign countries, since for a long time most other countries have had a single term of copyright based upon a number of years beyond the life of the author, such as now is the case in the U.S. However, certain works that originated in foreign countries and fell into the public domain in the U.S. because, among other reasons, legal formalities were not followed, have had U.S. copyright protection restored.
18. I have works that are already in their renewal term. Do I have to do anything to get the extra 39 years of protection the law provides?
No. The law automatically extended them to December 31 of the 95th year from the original copyright date.
19. I assigned the renewal rights in my song to a publisher when I first wrote it and the publisher renewed it for me. Was that valid?
Yes. The assignment of the renewal term is considered to carry with it a power-of-attorney in the assignee to register the renewal copyright in the name of the author. The renewal registration is still effective if the publisher did it for you.
20. I assigned my copyright to a publisher under a contract that did not mention the renewal term specifically. Did he get it anyway?
No. It is generally accepted that in order for the original publisher to have acquired the renewal copyright, the grant to him had to specify that the assignment from you included copyright renewals. If it did not, you own the renewal copyright and can assign it to a different publisher. However, this only applies to United States renewal rights. Even if the original assignment was silent on renewals, the first-term publisher will continue to control the work for the rest of the world, because of the single copyright term in effect in most other countries.
Even if the publisher were granted the renewal term, if the granting composer died during the first copyright term, the publisher’s U.S. rights are cut off in favor of the composer’s heirs, who can make a new grant of the renewal copyright to whomever they choose, or keep it for themselves. If the composer’s death occurred in the 28th year of copyright after Form RE was filed, however, the renewal rights remain with the publisher.
21. I signed a songwriter agreement with a publisher some time ago giving him the right to my copyright renewal term, among other things. Since the law would have given me 39 extra years of copyright if I had kept the renewal term, can I get back those 39 years from my publisher?
Yes! If you signed away the renewal term of your copyright before January 1, 1978, the law provides a detailed procedure by which you can retrieve the last 39 years of it, allowing you to make a new deal with the same publisher, assign it to a new publisher or keep it yourself. Be aware that your assignment of the renewal term assigned the full 67 years. The 39 retrievable years must be recaptured specifically as the law requires or the publisher keeps them. Detailed instructions can be found in the Code of Federal Regulations, Section 201.10, which you can access here.
22. How many bars of a song can I copy without permission?
There is no special number of “free” measures that can be used without authorization. Whether or not an infringement of copyright is committed when a portion of someone else’s copyrighted work is taken without permission depends upon whether the test of “fair use” is met. The factors determining if the use is fair include the purpose and character of the use, the nature of the copyrighted work, the amount and substantiality of the portion used in relationship to the copyrighted work as a whole, and the effect of the use on the potential market for or value of the copyrighted work. In addition, the U.S. Supreme Court has stated that, in analyzing these factors, courts should focus on whether and to what extent the new work is “transformative,” that is, it alters the original work with new expression, meaning, or message. The more transformative the new work, the less will be the significance of other factors that may weigh against a finding of fair use.
The fair use test is what would be used in order to determine whether a “sampled” portion of a song or record constituted copyright infringement.
23. I assigned my copyright to a publishing company who never acquired a recording of my song. I would like to get it back and assign it to another, more active publisher or obtain a recording myself. However, I cannot locate the original publisher, who has gone out of business. Can I go ahead and re-assign the copyright?
Not unless you have a clause in your agreement with the original publisher that revested the copyright in you if he did not acquire a recording after a certain time period that has now passed. If no such clause existed, your assignment to the publisher probably was unconditional, and you have no right to treat the copyright as your own. Even if the company is out of business, the copyright may have been assigned to another publisher or to the owners of the original company. Remember that if you assign the song to a new publisher without telling him you do not really own it, you may be exposing yourself to liability if the original publisher or his assigns discover your attempted assignment of their copyright.
Because of this kind of “lost publisher” situation, it is recommended that you try to obtain in all songwriter agreements you sign an automatic revesting of copyright in you in the event that the song is not recorded within a specified time.
24. What are the penalties for an infringement of copyright?
For each work that the defendant is found to have infringed, the plaintiff copyright owner is entitled to receive its choice of:
a) the actual damages suffered plus the infringer’s profits that were attributable to the infringement
b) “statutory damages” in an amount between $750 and $30,000 (or up to $150,000 if willful infringement is found), as the court considers just. The U.S. Supreme Court has ruled that the amount of statutory damages is to be decided by a jury.
25. Where can I find out more information about copyright?
Visit the website of the U.S. Copyright Office at copyright.gov.
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