Composing

Copy Who?

By Jonnae Miller
Juris Doctor Candidate 2021, Southern University Law Center

From beautifully composing musical pieces, endlessly traveling the world for performances, and earning extensive studio fees, to making intimidating courtroom visits, life as a musician can be extremely rewarding, yet tough. Unfortunately, quarrels in the courtroom may be inevitable for those who experience copyright infringement of their works, but by performing due diligence and properly protecting your works, much money, time, and stress can be saved.

The blurred lines of copyright infringement can place any musician or composer, no matter how big or small, in a frantic state. For example, in 2018, a California federal appeals court upheld a $5 million judgment rendered against singer-songwriter Robin Thicke and his co-writers Pharrell Williams and Clifford “T.I.” Harris of the megahit, “Blurred Lines.”  Thicke’s song, which sold the fastest of any in digital music history, was created with the intent to “evoke an era” but subconsciously copied the “feel” of Marvin Gaye’s 1997 hit, “Got to Give it Up.” The estate of Marvin Gaye filed suit for copyright infringement against the “Blurred Lines” writers even though there was no direct sampling or precise copying of Gaye’s composition, musical phrases, or lyrics.  After a lengthy trial, the writers of “Blurred Lines” were found strictly liable for copyright infringement of “Got to Give it Up.” As a result of the Gaye estate’s successful litigation, it was awarded damages in the amount of $5 million, as well as 50 per cent of future royalties from “Blurred Lines.”

Although most copyright infringement cases are settled outs of court, songwriters should take the steps necessary to protect their works from infringers, since appropriation of even a few notes or lyrics from a copyrighted song may constitute copyright infringement, which can lead to much distress. So how do musicians ensure that their musical compositions are original and can be protected, in hopes of preventing spending hours, days — maybe even years — defending their original works in the courtroom?  Avoiding certain things and registering one’s works with the United States Copyright Office, while not absolutely required, is a great way to protect and prove ownership of works.

To begin, what exactly is copyright and what does it protect? Copyright law, simply put, prohibits individuals from copying someone else’s work without permission. Copyright, a form of protection engraved in the United States Constitution, extends to published and unpublished works alike. The copying of someone else’s work, without getting proper permission from the owner, may result in an individual being held liable for copyright infringement. Copyright laws are governed by Title 17 of the United States Code, which encompasses numerous chapters that deal with an abundance of copyright topics, ranging from broader subjects, such as copyright ownership and infringement, to more specific subjects, such as sound recordings and music videos. A revision of Title 17, as provided in the Copyright Act of 1976, establishes the basic framework for current copyright laws. The provision of the Constitution that ensures artists the exclusive right to their work is Article I, Section 8, Clause 8. This provision serves as the foundation for national copyright law, and reads, “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”

In order to gain the full protections associated with Title 17 of the United States Code, music must be copyrighted. Furthermore, to establish a copyright infringement claim, “[a] plaintiff must prove that it possesses a valid copyright and that the defendant copied elements of its work that are original and protectable.” These protections ensure that others cannot use your music without your permission. An individual’s copyright protections begin at the moment the work is created in a tangible form, irrespective of registration of the piece. However, copyright registration  is recommended, in part because registration is required in order to bring a copyright infringement suit, and a registration provides documentation that one is in possession of a valid copyright. The timing of registration may allow for more successful litigation as well, resulting in an award of statutory damages without the need to prove actual damages, and attorney’s fees. The official website of the United States Copyright Office is www.copyright.org.  One may navigate and access the tools necessary to obtain a certificate of copyright registration on this website and thereby have the ownership of one’s works listed in the Library of Congress. This certificate may also be used in court as prima facie evidence that one is copyright owner of the work in question.

The United States Copyright Office is obligated, by statute, to register claims and record documents pertaining to copyright; furthermore, it must examine all works submitted for registration in order to determine their copyrightability, i.e., whether they meet the legal and other formal requirements of the copyright statute and regulations. To obtain copyright rights to music through the Copyright Office, one must complete an application, which is available via the copyright.org website, by requesting it through e-mail, phone, the U.S. mail, or by visiting the Public Information Office in Washington, D.C. Copyright Office applications can be used to register most works, including original, derivative, or collective works, or a compilations of works.

One must first determine which application suffices for the work in question. There are standard applications available for literary works (Form TX), for visual arts works (Form VA), for performing arts works (Form PA), for sound recordings (Form SR), as well as a group, or collection of works, application. The standard application is used when an individual is seeking the copyright of only one original work.

The collection of works application is generally used to register up to ten unpublished works that are created by the same authors and/or co-authors. In regards to sound recordings, 20 works are allowed. There are several eligibility requirements that must be met for a group of unpublished works to be registered with the Copyright Office via a Collection of Works application. (1) All the works must be unpublished. The publication of a work is established when a work is distributed, sold, ownership is transferred, it is rented, leased or lent, or when an offer to distribute copies of the work is made to a group of individuals for further distribution, public performance, or public display. (2) You must submit the same types of works, i.e., each work must be registered in the same administrative class (VA, PA, SR, or TX). (3) All works must be created by the same author or joint authors, (4) All of the authors must be named as copyright claimants, (5) You must identify the authorship that each author or joint author contributed to the works, and all claims must be the same, (6) You must provide a title for each work, and (7) the application must be filed on-line and digital copies of the work must be uploaded. There is also an option available for authors who prefer to remain anonymous. If any of the requirements are not met, the Office may refuse the registration claim submitted.

The basic steps to complete a copyright application via the website are as follows:  (1) provide required information on the application form; (2) Pay the required filing fee associated with the application; and (3) Upload or mail in a copy of the work associated with the claim. As mentioned earlier, the type of work being submitted must be detailed in the application process. According to the Copyright Office, musical works, such as songs, musical compositions, and screenplays, fall within the category of works of the performing arts. Musical works refers to the lyrics and music involved, while a sound recording of them is recognized as the performance of a song. To register the “sheet music” for musical works or songs, the performing arts (PA) form would be chosen, whereas, when registering a sound recording of a musical work, the sound recording (SR) form is the way to go. Once the type of work is selected, the year in which the works was completed is the next information to provide. If the work has been completed over an extended period of time, the most recent date suffices. If there are any registered pre-existing works, or previously published works incorporated within the work being submitted, then the registration number and year of registration must be provided. Next, contact information is of the author(s) is necessary for display in the Office’s on-line records in case visitors of the website would like to get permission to use the work in question, as well as information on an individual who can answer any questions that may arise during the examination process. Once the application is submitted, it cannot be changed, so it is imperative that all information submitted is accurate and up-to-date.

The Copyright Office typically e-mails confirmation of receipt once everything is received. Unfortunately, the processing time of copyright applications varies based upon the difficulty of review, the number of registration specialists available to review applications at a particular time, the mode of submission chosen, and the amount correspondence back and forth. According to the Office’s website, on-line applications are recommended over mail submissions, as the e-service lowers the average processing time from eight months to three months. An expedited copyright application is available to reduce the wait time to as little as five days. The fee associated with such is over $800 per work.  In addition to saving time with electronically submitted claims as opposed to mailed submissions, the fees associated drop to $45 from $125 for a single author, same claimant, one work, not for hire. All in all, e-filing can save creators both time and money. After all the hustle and bustle of submitting the application and application review, successful registrants will receive a certificate of registration, recognizing them as the owner of their works, and this ownership will be recognized in the Library of Congress.

Recent litigation, such as “Blurred Lines” and a lawsuit accusing Justin Bieber and Usher of illegally copying the hooks in “Somebody to Love” from an identically titled song by Devin Copeland and Mareio Overton demonstrate the continuous evolution of copyright infringement jurisprudence, which may expand to an unpredictable degree. Courts have ruled that portions of works used that are relatively small in proportion to the entire work can be found to have the necessary substantial similarity to the original work if found qualitatively important to the piece, and therefore can be considered infringing. While some litigation is unavoidable, time in the courtroom can be less stressful and chances of success higher with the proper steps being taken.  As the answer to what constitutes copyright infringement seems to get blurrier, musical artists should do their best to remain proactive and to protect their works. By following the steps outlined above, musical artists can make their journey through at least the legal aspects of the music field as peaceful and harmonious as possible.