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Writing your own songs and making recordings are two ways that musicians can literally make money while they sleep, that is because payments from licensing can keep automatically appearing in your mailbox whether you are performing or not. Every time your song plays on the radio, at your favorite restaurant, or as part of a commercial, you (as a copyright owner) can get paid licensing fees. Publishers and organizations like ASCAP, BMI, SESAC, Harry Fox Agency, and SoundExchange all collect license fees and distribute the money to songwriters and bands. Copyright is vital to musicians, and this series of articles will break down everything you need to know about copyright and your band.

What you can copyrightAccording to the U.S. Copyright Office, U.S. copyright protects original works of authorship including literary, dramatic, musical, artistic, and certain other intellectual works. So as a songwriter your song lyrics and melodies are protected by copyright, and as a recording artist your recordings are also protected by a separate copyright. Being granted copyright gives you the right to prevent other people from using your lyrics, music and recordings, but more importantly copyright gives you the ability to earn money from your music.

Your (copy) rightsCopyright actually involves a divisible bundle of six rights that allow you to control how other people use your songs. As a copyright owner you have the exclusive right to allow or deny the (1) adaptation, (2) display, (3) performance, (4) distribution, (5) reproduction, and (6) digital transmission of your songs. And since the rights are divisible, you can allow someone to perform your songs but deny them the right to record them: it’s up to you how your song is used. But perhaps more important than control is the fact that copyright ownership gives you the potential to make money every time someone adapts, performs, prints, makes and sells recordings, and broadcasts or digitally transmits your songs.

LimitationsCopyright has its limitations, and although you can copyright your songs it does not protect ideas, the titles of your songs or the name of your band. Because copyright is designed to encourage the creation of new works, allowing people to copyright individual words and short phrases could ultimately prevent creativity; just imagine if greeting card companies were able to copyright the phrase “happy birthday!” But don’t be discouraged, your band’s name may qualify for trademark protection. Trademark law is designed to prevent marketplace confusion and can stop other bands from stealing your fans by copying your name. For more details on how to register a trademark visit the website for the U.S. Patent and Trademark Office.

How to copyright your songsThe good news is that in the U.S. if you have written your song down on paper or made a recording of it, known in legal speak as making a tangible fixation, then the song is already copyrighted. In the U.S. copyright occurs at the moment the song is fixed in some way that allows others to read or hear it without you pulling out your guitar to give a live performance. In the U.S. a song doesn’t need to be published to gain copyright: it’s automatically granted when you fix the song in some tangible form.

It is important to carefully choose who you share your song ideas with before you write them down or record them because the author, for the purposes of copyright, is the person who actually makes the first tangible copy of the song, not necessarily the person who came up with the idea. Keep written and/or audio records of your songs and protect yourself! Affixing notice of copyright and registering your song with the U.S. Copyright office can offer you even more protection.

Notice. One way to make people aware that your songs are copyrighted is to affix them with a notice including ©, or circle p in the case of recordings, followed by the year of publication and your name.

Writing your own songs and making recordings are two ways that musicians can literally make money while they sleep. Payments from licensing can keep automatically appearing in your mailbox whether you are performing or not. Every time your song plays on the radio, at your favorite restaurant, or as part of a commercial, you (as a copyright owner) can get paid licensing fees. Publishers and organizations like ASCAP, BMI, SESAC, Harry Fox Agency, and SoundExchange all collect license fees and distribute the money to songwriters and bands. Copyright is vital to musicians, and this series of articles will break down everything you need to know about copyright and your band. (Part Two)

RegistrationAlthough you don’t need to register your songs with the copyright office, registering offers you much more protection in the event that someone else tries to claim them as their own. In order to sue someone for infringing on your copyright you will first need to register the song. Depending on when you register you might be entitled to legal fees if you win the lawsuit. Upon registration your songs will also be deposited with the Library of Congress, making it harder for plagiarizers to claim that they didn’t know your song existed. 

In order to register songs and recordings visit the U.S. Copyright office website for details. Once there you can complete an online copyright registration, which will require a form, fee, and copy of the song you want to register. Currently copyright in the U.S. lasts for the life of the author plus 70 years. After copyright expires songs enter the public domain and no longer require permission and/or license fees to be performed. But don’t assume that all Public Domain works are free to use, because newer edited versions of public domain works can gain new copyright protection, making it possible for new editions of works by Mozart to earn licensing fees for their editors.

International copyrightUnfortunately there is no such thing as a universal international copyright registration and laws about copyright vary by country. If you want protection for your songs in another country you will need to follow the procedures set by their government.

Simplifying ownershipAs a singer-songwriter/recording artist you probably work with other musicians and band members to write and record your songs. Copyright ownership can get tricky when multiple people are involved in the creative process, especially since copyright materializes at the moment you put pen to paper or push the record button. When multiple people are involved in the creative process they may gain joint ownership in the songs and recordings, giving them the right to veto certain decisions about what can be done with the songs and recordings in question. Consolidating copyright ownership will make your life easier.

Working with session musiciansIf you hire ringers for a recording, make sure they sign a session release form before you start recording. These forms release the musician’s right to control the fate of the recorded songs, and since copyright ownership can only be transferred in writing, if you fail to get a session release form from a musician they may automatically become a joint owner of the recording copyright. But just because someone isn’t a copyright owner doesn’t mean they can’t share in the economic success of the recording: if musicians are hesitant to sign a session release form you can still offer them a percentage of royalties in exchange for control of the rights.

If you don’t make sure that the band consolidates copyright ownership then licensing and record companies might be wary of making a deal with you. No one wants to chase all over the country trying to get permission from the drummer on track 3 of your demo, and failing to control all of the rights might cause you to be passed over when it comes time to sign the record deal.

Having the talkEveryone hopes that their band has what it takes to endure, but even the most amiable bands may have members that leave to pursue other gigs or interests. When band members leave they may retain joint ownership in the songs and recordings you created together, which means you might owe departed band members money years after they’ve left, and even worse: you may need their written permission to make a record or publishing deal.

Imperfect copyright ownership (when you do not control all of the rights) can scare off publishers and record companies and generally make your life difficult. Consider setting up an LLC or other business entity to be the owner of the copyrights, with written agreements about revenue sharing and what happens when band members leave or join the group. This consolidation of ownership makes it easier to license your recordings, although as a singer-songwriter you may want to keep ownership of your songs and grant your band permission to perform and record them. As with all legal matters, you should consult an attorney specializing in entertainment law to advise you and help you set up a business entity and written agreements. Although you may be reluctant to spend the time and money early on, remember that it’s much easier to come to an agreement while you are all still friends.

SummaryUnderstanding copyright and licensing can help you have a more lucrative musical career. Copyright is automatically created when you fix your songs in a tangible form, making it vital to consolidate copyright ownership through written agreements before undertaking activities such as recording. Consolidating copyright ownership of both your songs and recordings will make it easier for your band to take advantage of new opportunities to spread your music

Stay tuned next time for more on royalties and how to make money from your copyrights through licensing.

DisclaimerThis article is for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. The opinions expressed in this article are the opinions of the individual author and may not reflect the opinions of the SonicBids.

© 2013 Jamie Davis-Ponce