This is a guest post written by Juan Lopez, a legal consultant at Avenant Law, and co-founder of www.musiclawcontracts.com.
The purpose of this blog post is to clarify several common misconceptions about music industry law that are often discussed amongst musicians on the internet.
MYTH 1: Songs must be registered for the copyright to be protected
Copyright is an automatic right of the author… meaning that as soon as you make a tangible copy of a work (i.e a recording of your song or a transcript of some lyrics) – then you own the copyright.
Although the common practice of posting a copy of your material to yourself has nothing to do with securing copyright, it does however establish the date of when you created the work. This is very important, because should anyone later decide to use your material without permission, then you are protected, as this process is regarded as proof of when the work was written and by whom.
In the US, registering the Copyright grants you certain legal advantages (which you would be missing out on if you don’t register) – including the following:
1. Being able to collect compulsory license royalties
2. Being able to file infringement action for damages and injunctions; you are also able to recover attorney fees (if you win).
3. In the event of an infringement dispute in court the burden of proof is put on the party allegedly infringing your copyright.
MYTH 2. If I write the lyrics in a song I can later on take those lyrics and use them again
This is actually true in the UK – but only when the portion of the work written is sufficiently distinct and identifiable from the other parts of the co-written work with someone else.
In the event that a co-written portion of the work is not distinct from that of the other(s) all of the owners would have to agree to a request if someone wants to copy or use the work or a portion of the work of joint ownership, including the very same authors.
In the US this is not true. According to US copyright law even if two people create separate, distinct parts of a work, they each own and interest in the whole copyright, not just their contribution. For example: if two collaborators get together and one writes the lyrics and the other writes the music, either author can grant non-exclusive licenses for the entire composition (provided they pay each other their share of income) BUT neither is allowed to just pick their bit in the composition and leave the other without continuing to pay their percentage of the song.
MYTH 3. You don’t need to clear a sample if it’s very short
As ruled in Bridgeport Music v Dimension Films (2004) “any sampling of a master, even if it’s unrecognisable is an infringement of copyright”. The sample in question in this case was a two-second guitar chord with the pitch lowered and looped five times. This was all done without the owner’s permission or compensation paid. The court ruled the owner of the copyright on a work had exclusive right to duplicate the work and therefore usage of any section of a work, regardless of length, would be in violation of copyright.
MYTH 4. A group’s name belongs to whoever started using it first
This is only true for unregistered marks for which considerable goodwill and reputation in the market has been built in respect of the brand itself.
If someone is using your unregistered brand name you will have to show that they are trading on your reputation by passing off as you – thus causing confusion in the mind of the public ‘and’ diverting custom. This last part is very important because if there is no loss of income attributable to the unauthorised use the claim is likely to collapse.
Registering a trademark has, on the other hand, clear advantages as it allows you to stop any and all uses considerably quicker and cost-effectively.
MYTH 5. Being offered a five album deal by a record company means the company is committing to record and promote your next five albums
Recording agreement terms are traditionally structured in options periods. A five album deal may in reality be a five options deal (in favour of the label) in which the label gets to decide at their sole discretion whether or not to extend the Term after the end of each period for a further (option) period.
If the label does not extend the Term for a further option period then the agreement can be terminated and then you, the Artist, can be ‘dropped’.
In general, recording agreements impose the smallest obligation on the label in terms of releasing albums, while keeping the option to get as much content as possible.