Performing uncopywrited music?

Discussion in 'Band Management [BG]' started by RicPlaya, Apr 30, 2004.

  1. RicPlaya


    Apr 22, 2003
    Whitmoretucky MI
    We have our first original gig set up for next month. We are all very excited but we haven't gotten any songs copywrited yet. We are still having difficulty dealing with the government getting our band named service marked. What a pathetic uncompetant office of the US government, if anyone has any suggestions on getting that done please fill me in. Anyway I know a lot of bands plat their stuff and don't protect it. I'm thinking about cancelling our set maybe because of it. We already played a few tunes and had people trying to copy our riffs already. I am very leary am I over reacting?
  2. SmittyG


    Dec 24, 2003
    Texarkana, Texas
    There is a story about how Eddie Van Halen used to turn around, with is back to the audience, during solos so that the guitarists out there wouldn't steal his licks. If you have heard any band from 1978 forward, you know how well that worked out for him.

    Copyrighting your songs does one thing, and one thing only, for you: it gives you a stronger legal leg to stand on if someone tries to claim they wrote/own one of your songs. It will not stop folks from playing the song (I would be flattered if folks wanted to play my songs.) It will not protect "signature" riffs or licks.

    The bottom line is: why did you write the songs to begin with? I wrote mine to share my music with others. You can't do that if you are constantly afraid someone is "stealing from you". I'd say play the gig, and any others you can get, and the next time you are checking out another local band and they play some of your stuff, smile with pride over your accomplishment.
  3. canopener


    Sep 15, 2003
    Isle of Lucy
    Maybe you could transcribe the songs and mail them to yourself, somewhat like a generic patent? I don't know if the same thing applies for copywriting...
  4. Music Attorney

    Music Attorney

    Feb 22, 2004
    Let’s start by being clear about when an author’s work is copyrighted in the United States. Under the 1976 Copyright Act, copyright subsists in "original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device." Feel free to consult 17 U.S.C 102(a) if you want to check that language. For example, if you sing an original song into a portable tape player, copyright subsists in your song at that moment. Not after you file appropriate paperwork, not after some government agency tells you so, but at the moment your number one hit song was reduced to a “tangible medium of expression.” Notwithstanding SmittyG’s comment, there are a number of reasons why you want to file copyright registrations, but copyright ownership is not one of them.

    Please understand that there are words in that statutory language (e.g., “original,” “authorship,” etc.) that require a treatise to fully explain, but for purposes of this discussion it is probably not necessary. Bottom line: just have the band record each song on a tape, CD, etc. Assuming the other statutory criteria are met regarding your recordings (i.e., “originality,” “authorship,” etc.), then copyright exists in your work once it’s recorded. Registration is important for certain things (e.g., litigation), but not copyright itself.

    The comment about “transcribing” your songs could also work. As far as the musical composition goes, the only two things that are copyrightable are the lyrics and the melody. You could write a lead sheet with the melody and the lyrics underneath and that should suffice. Of course, the song must still meet all the other statutory requirements such as “originality.”
  5. SmittyG


    Dec 24, 2003
    Texarkana, Texas
    Cool; a chance to learn something new. Other than giving you stronger legal "proof" of ownership on the off chance you have to go to court over one of your songs, what are the reasons to file? I knew that ownership existed without it, but having ownership and being able to prove it in court are two different animals. I had always thought the copyright provided that proof and had no other real function.
  6. If I'm not mistaken, lyrics and music can be viewed as seperate products for the purpose of establishing ownership. You can easily see the need if you think about lyricist/musician collaborations. Each has their own contribution to the song and each can claim ownership of their part seperately from the other. I would suspect that if you've written your lyrics out, that would satisfy the "tangible medium of expression" criteria that the barrister has mentioned. The music, on the other hand, would need to be recorded or written in some sort of recognizable notation to meet the same specs.

    Music Attorney, how'm I doin'?
  7. RicPlaya


    Apr 22, 2003
    Whitmoretucky MI
    Thanks everyone, thanks MA! I'm gald you pipped in!
  8. Craig Garfinkel

    Craig Garfinkel

    Aug 25, 2000
    Hartford, CT
    Endorsing Artist: Sadowsky Guitars
    A service mark for your band name can be easily obtained online here . However, it costs $355, and a complete waste of your money at this point. I'm sure Music Attorney can explain this to you better than I can.

    Also, some recommended reading for any musician is "All You Need To Know About the Music Business", by Donald S. Passman. Very well written in non-lawyer speak (even though Passman is a well-known attorney)'s even funny.

    Do you think a really big advance on a recording contract is a good thing? Which do you think is better for a newly-signed band, a seven record deal or a three record deal? Who gets paid royalties, and how much, when a CD is sold? How do you get paid when your song is played on the radio? Once you record your album, who's allowed to record their own version of your song, and when can they do it?

    You'll find all these answers in the book.

    Pick up the book and you'll be hip.
  9. Music Attorney

    Music Attorney

    Feb 22, 2004
    You go to law school for 3 years and spend a bunch of money when the only thing you really learn to say when someone asks you a question is: It depends ;-)

    To fully address your question would require a small treatise. This is an area of copyright involving “joint works.” A joint work is defined in the 1976 Act as: "a work prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole." That language, for the intellectually curious or for those who have trouble sleeping, can be found at 17 U.S.C. 101. Therefore, to establish that the contributions of two or more authors constitute a joint work (and, therefore, co-ownership of the copyright), it is essential the parties INTENDED the creation of a joint work at the time the work is created.

    Whether a work qualifies as a joint work is critical because Section 201(a) of the Copyright Act provides, in part, that “the authors of a joint work are co-owners of copyright in the work”. Thus, absent a contrary written agreement:
    1. The only duty co-owners have to one another with respect to the joint work is to account for profits from its use.
    2. All joint authors share an equal percentage of ownership in a joint work.
    3. All joint authors share an equal percentage of ownership even if the respective contributions of each author to the joint work are not equal.
    4. Each joint author may license an entire joint work, on a nonexclusive basis, without the consent of a co-author.

    Look at #3 and #4. #3 says if someone writes 90% of a song and collaborates with someone to finish that last 10% and INTENDS for the other person’s 10% to merge into his 90%, then each writer owns 50% of the song unless there is something to the contrary in writing and signed by both authors. #4 says that each joint author may license the entire work without the consent of the other co-author which means one writer could license the work for use in a porno film, religious themed film, or other situation that a co-author finds objectionable.

    Let’s look at another example. If someone writes a piece of poetry with no INTENTION of having that poetry become lyrics and (1) a musician comes along and wants to write music and use the poetry as lyrics and (2) the author of the poetry grants the musician the right to add music to the poetry, then the author of the poetry retains a separate copyright interest in the words with the musical collaboration becoming a “derivative work” and the copyright interests in the derivative work being agreed upon by the poet and the musician. Here, the poet is control and (1) does not have to grant permission for the use of his poetry as lyrics; (2) has control over how much of the copyright in the song he wants to give the musician; and (3) since the musician only has a copyright interest in those elements which he added to the poetry, the musician cannot license the whole song like in the joint work scenario above.

    Now let’s say a lyricist writes lyrics with the INTENT of combining them with music at some later date. One day, the lyricist happens upon the TB message boards and thinks a certain TBer has it going on musically so the lyricist mails the TBer the lyrics with the INTENT to create a composition with the TBer. The lyricist lives in CA and the TBer lives in New York. The TBer writes music for the lyrics. At this point it becomes a little like scrambling eggs. The egg whites and the egg yolk become mixed and it’s a little hard to undo. What if the lyricist doesn’t like the music? It’s probably a little grey, but the courts seem to say that as long as the lyricist INTENDED that the lyrics would be merged with music at the time the work was created, then I’d say you probably have a joint work with all of the rights set forth above (i.e., #1-#4) unless there is some agreement to the contrary in writing.

    If it’s not clear by now, your question totally depends on the facts of the situation and the INTENT of the authors involved.
  10. I wouldn't worry about it. It's just a financial hassle getting all that stuff lined out and unless you're making serious money with the band then it's not worth it.
  11. Transverz

    Transverz believer of the Low End Theory

    May 3, 2004
    Los Angeles, CA
    BTW, just to let you guys now, the old (AND WAY UNTRUE)" mailing yourself something blah blah" is just a myth some guy probably started and thought he was cool. Sorry...It does not do anything but mail yourself something. Although that could be fun at times...yeah!

    But seriously, think about it: Anyone could mail themself an empty and OPEN envelope and then insert whatever they wanted in there at any time. End of myth.

    And as for NOT playing the gig due to copyright reasons, I'd say that is a bit paranoid. Unless you have industry people banging down your door saying you got a hit song on your hands, I'd say perform it with pride and let the suckas get laughed at if they dare perform the same sounding song. Besides, I'd be more worried about problems with your band name being the same as somebody else's first. You'd be amazed at how many bands all have the same name! And making it big for people to take notice of your songs is hard enough already. I'd say kick @$$ in that department first!

    Just my opinion...