By Kennedi Harmon
Texas Southern University School of Law
Juris Doctorate Candidate, 2024
Copyright is one of the most familiar types of intellectual property. Copyright holders have the exclusive right to use or allow others to use their works on agreed-upon terms. Copyright rights apply to music, writings, motion pictures, architectural designs and other creative works. Notice these are all tangible works; ideas are not suitable for copyright protection. The rights of authorship in these creations emanate entirely from their originator. Copyright rights last for the creator’s lifetime plus 70 years for a person and for 120 years from creation or 95 years from first publication whichever is shorter for a company.
As a copyright holder, you have the ability to permit or deny:
• the work’s reproduction in all forms;
• the work’s public performance or communication to the public;
• the work’s broadcasting;
• the work’s translation into different languages; and
• the work’s adaptation (such as turning a book into a movie).
Perhaps the best part about copyright is that once you create a work in fixed form that falls within the scope of copyright protection, your work is protected under U.S. copyright law. But even though your work is protected when you create it, your journey should not end there. It is essential to register your work with the Copyright Office, for unless you do that, you cannot sue someone for infringement.
Using Another Owner’s Copyrighted Work
Musical works are one of the most common types of copyrights that are obtained by artists. Therefore, rather than researching whether or not you have the right to use a song, it is safe to assume that it is already protected. In order to use the song, a license will likely be required.
For music, there are two basic types of copyrighted works: those for the musical composition (lyrics or musical notes) and those for the sound recording (what is being heard). A synchronization license, or “sync license” in common parlance, allows you to use the musical composition in an audio-visual work. Synch licenses allow you to record covers of a popular song within that context, but they don’t give you the right to use the sound recording first made popular by the recording artist. In order to use that recording, you’ll need a master use license. Armed with a master use license and a sync license you will be able to add others’ recorded songs to the broader content you create, such as a film.
You don’t necessarily have to contact famous musicians directly in order to obtain these licenses. There are several music rights organizations that can grant those licenses, or provide contact information for a music publisher or record label that can do so.
What To Do If Your Work Is Infringed
If your work has been infringed, there are several steps you can take. Under the Digital Millennium Copyright Act (DMCA), if you learn that unauthorized use of your musical work has been made on a website like YouTube, a notice can be sent to the site demanding that the offending work be taken down. These are referred to as DMCA takedown notices, or DMCA notices, and your notice should be made as follows:
• Take a screenshot of the material in question. This must be done first because after the notice is sent out, the infringing work should be removed, and a screenshot cannot be taken once the material is removed!
• Draft a notice that includes details on the material being infringed, your contact information, digital signature, and where the infringement is located. It is crucial to use a phrase along the lines of “I have a good faith belief” that the material in question is not authorized. This statement should be made under penalty of perjury so that the claim is taken seriously.
If DCMA notices do not work or apply, and/or you want to take other action, one option can be to ask the website to add a credit linking the work in question back to the original creator’s website. A more serious approach would be taking legal action starting with a cease and desist letter demanding that the website owner and/or the party that uploaded your work pay you for using the material. If these approaches still don’t work, retaining an attorney is advised.
Accused of Infringement?
If it looks like you may be infringing another’s work and a notice is sent to that effect, it is important that you remove the content in question immediately. Waiting to remove the content could push the owner to take further legal actions which can include hefty monetary damages. Once taken down, you can begin your own investigation to ensure that the author indeed has pertinent copyright rights to the work and that you really are in violation. Once you have confirmed these things and if you are interested in continuing to use your work in question, you can contact the content owner and try to reach an agreement. It is possible they will let you use the content without penalty or under a reasonable licensing arrangement. If a DMCA takedown notice was filed against you and your work was taken down even though your investigation revealed that you hadn’t in fact been violating any legitimate rights, you can always file a counter-notice with the website. This process is somewhat similar to the one used if someone had infringed upon your work.
Artists are often inspired by other creators’ works. It is acceptable to use and draw ideas from these works, as long as permission is granted. Having an artist’s permission to use their work as reference, prior to you releasing your work, creates an easier process for you to produce and even monetize your creations. Permission is almost always necessary for using another’s musical work, so stay ahead of the curve by getting it before creating your own work.
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