Is Your Music Legally Protected?
Recently, a number of companies have been popping up and preying on music creators and rights holders, offering protection for musical works. Here, industry lawyer Erin M. Jacobson explains why the companies are spreading misinformation, and the realities behind legally protecting your music.
Guest post by Erin M. Jacobson, Esq. of The Music Industry Lawyer
Music creators and rights owners ask me on a daily basis about whether their musical compositions and recordings are properly protected by copyright. Lately, there have been some companies popping up claiming to offer protection for musical works, and these companies are promoting misinformation that actively hurts music creators and rights’ owners. In this article, I set the record straight.
When a work created with sufficient originality to qualify for copyright protection and is “fixed in a tangible medium of expression,” it technically has copyright protection under the law. “Fixed in a tangible medium of expression” means that the work has been reduced to a physical format capable of being reproduced, such as writing it down, recording it on an audio or video recording, etc.
However, even though a work may have copyright protection when it is created, registering works with the United States Copyright Office provides certain benefits that one only has with a federal registration. These benefits include:
- Being able to sue in federal court for copyright infringement;
- Public notice of who owns the work;
- Listing in the United States Copyright Office’s online databases;
- A legal presumption of ownership of the work in court (if certain conditions are met);
- Statutory damages and attorney’s fees (i.e. more money!) can be awarded to the winner of an infringement suit (if certain conditions are met); and
- The date of creation listed on a federal registration certificate is the strongest evidence a court will consider.
Let me emphasize two of these points again:
A person (or company) cannot sue in federal court for copyright infringement without a registration with the U.S. Copyright Office, and the date of creation listed on a federal registration certificate is the strongest evidence a court will consider.
The Nature of Copyright “Registration” Companies
To be clear, there are some companies that will provide the service of filing copyright registration applications with the U.S. Copyright Office on a creator’s behalf. While one should still do one’s due diligence on these companies to make sure they are experienced and will file the registrations correctly, the services these companies provide is not the focus of this article.
In this article, I am specifically talking about companies that offer “registrations” with their own service in order to “protect” a work. There are companies offering a “date stamp” – some of them even advertise an encrypted date stamp – to show evidence of the date of creation of a work. These companies charge just a few dollars per registration and make it appear that using their service will save the user a lot of money in comparison to the fees of the U.S. Copyright Office (currently ranging from $45-65 per application).
However, here is the problem:
First, as already explained, the date of creation listed on a federal registration certificate is the strongest evidence a court will consider. While a court may look at other outside evidence, there is absolutely no guarantee they will accept this evidence, and a court will still want the federal registration certificate. When I have inquired with these companies about whether they have any instances of a court accepting the registration they offer as valid, I have not received a response, and the fine print on these companies websites will state there is no guarantee their registration will be accepted as evidence by a court. In other words, the answer here is no.
Second, also as already mentioned, a federal registration certificate is required to pursue a copyright infringement claim in federal court. If one does not have a federal registration certificate and an infringement (or potential infringement) occurs, the owner of the allegedly infringed work will then have to immediately register the work with the U.S. Copyright Office in order to pursue the claim, AND, will have to rush the application to pursue that claim timely. The Copyright Office calls this rushed status “Special Handling,” and charges a fee of $800 to rush the application.
While someone thought spending less than $5 on a “registration” with a private company was saving money, that person would end up having to pay $845-865 just to obtain a federal registration to have the ability to defend an infringement for one work. If the person initially registered the work correctly with the Copyright Office, the fee would have been $45-65, and would have come with all the protections afforded by federal registration, saving that person $800 (plus the money already spent on the other “registration” company).
A Note about Trademarks
Trademarks, which in the music space mostly apply to band names and company names, have a little more leeway here because trademarks can gain protection by use “in commerce”, i.e. out in the marketplace. However, the same benefits outlined for federal copyright registrations apply to trademark registrations as well.
Therefore, while these trademark “registration” services provide an example of using a name at a certain time, they do not provide the good will that can only be built by using the mark in commerce, which could include performing under that name, selling music under that name, etc. Plus, one also cannot sue to protect a trademark in federal court with out a federal trademark registration.
Therefore, the same arguments above also apply here as to why these companies are a waste of money.
What if There Is No Federal Registration?
For both copyrights and trademarks without federal registrations, there may be some protections under state “common” law, however, these protections only extend within a certain state (hugely important in the case of trademarks especially), and provide a much lower level of protection than federal registrations.
Music creators and rights’ owners receive bad information all the time — from friends, other people in the business, and the internet. However, what really makes me mad is when companies – many of them owned by musicians or former musicians – make promises to music creators and rights’ owners under the guise of helping them, when really the “service” they provide does not afford the level of protection suggested and is profiting off the ignorance of music creators who are simply trying to protect their work.
Are these companies malicious in their intentions? Probably not. They probably just saw what they thought was a creative business idea. As I mentioned, the fine print usually indicates that these services only provide an indication of a date of creation and no guarantee of acceptance as evidence by a court, but let’s face it, almost no one is going to read the fine print. Independent musicians already working with smaller budgets do not need to spend money on worthless date notations when they should be putting their money toward receiving all of the benefits afforded by federal copyright registrations.
A person can file one’s own registration applications with the U.S. Copyright Office, and those on a budget may be able to file some applications containing multiple works (if certain conditions are met). However, because the details of such registrations can often become nuanced, one can also hire an experienced music attorney to assist with correctly protecting one’s works.
All music creators and rights’ owners deserve the real and true information on how to protect their works. The correct information is available and can be obtained with a little research or by working with professionals acting in accordance with the definitive procedures provided by U.S. Copyright Law.
Creators and rights’ owners owe it to themselves to protect their work correctly, rather than looking for a cheap solution that will ultimately leave them and their work unprotected when it counts.
This article does not constitute legal advice.
Erin M. Jacobson is a practicing attorney, experienced deal negotiator, and a seasoned advisor of intellectual property rights who protects musicians, songwriters, music publishers, Grammy and Emmy Award winners, and legacy artists and their catalogues through deal negotiations and proper intellectual property management.