Welcome to this week’s installment of The Composer’s Guide to Doing Business. This week, I’d like to continue our discussion of copyright, and cover the whys and the wherefores of registering your copyrights with the U.S. Copyright Office.
Before we get started, though, I’d like to remind everyone that I’m not a lawyer or a law professional, just a composer with an obsession with the practical aspects of having a career in music. This Guide shouldn’t be interpreted as “legal advice”, but as observations based on experience and (extensive) research.
On to the fun stuff!
Thanks to the Copyright Office’s new online system, registering your copyrights could hardly be easier. The first copyright I registered was back in 1998 – one of my very first compositions, which I guarantee will never see the light of day until some lucky doctoral student decides to write their dissertation on my juvenalia decades from now. My Sonata in C#-minor (yeah, I know) was the first thing I’d written that I’d taken the pains to notate, and it was such a special occasion for 16-year-old me that I raced out to get it copyrighted as soon as possible.
Even then, having to fill out the paper form and mail it off, it was an easy process – so long as you had the right form – and I had no difficulty at all, even at such a tender age. With a little poking around online with my family’s AOL account (who’d have thought the internet could ever have been that young?) I found Form PA, printed it out, and set about registering my very first copyright. The form itself was only two pages (it still is, and hasn’t changed a lick in the intervening years), and took a matter of minutes to fill out. I’m sure I spent infinitely longer looking over the form again and again to make sure I hadn’t overlooked something or misread the instructions. Imagine my surprise to learn that such a fabled thing – a COPYRIGHT – was so easy to register!
Off the form went in the mail with a photocopy of the manuscript and a check for $65, and a few months later (no one ever accused the government of working quickly) my form showed up again in my mailbox with the “Do not write above this line” section filled out with my registration number and effective date. Bliss!
Now there may not have been much call to register the copyright for that particular piece, especially since no one has seen it (and I’ve barely thought of it) since the late ’90s, but by going through the process, I learned a very valuable lesson: things like this tend to be a lot easier than they seem.
Even though the thought of bureaucracy and filling out forms can be daunting to some, registering your copyright is a very simple thing to do. And it’s something that every composer should do, for a number of reasons.
Why Register Your Copyrights?
A few months ago, a friendly acquaintance on Twitter weighed in on my earlier post about copyright, and said that he didn’t think that the government should be the arbiter of copyright at all. I kept my snark to myself, being the polite, gentle soul that I am (*wonders of anyone actually believed that last bit*).
Of course, I wanted to give my acquaintance a light smack on the head.
Government is the arbiter of copyright. And there’s no other arbiter even remotely possible.
Well, let’s look at some of the benefits of registration, and go from there.
The primary benefit of registering with the U.S. Copyright Office is so that if your copyright is infringed upon, you have clear redress to the situation.
The first step to take in case of an infringement is to get a lawyer. Your lawyer will draft a letter informing the person or business:
a) that they are infringing on your copyright, and
b) that they must stop their use of your materials at once.
The second step is to drag their sorry asses to court. Now, in some instances, the infringement isn’t severe enough to bring to this point. Some people just plain won’t have known that what they were doing was illegal, and will be mortified, and stop what they were doing right away. Chances are, these people won’t have done enough damage to warrant taking to court.
But other people…
Sometimes the other party just won’t stop. Either they don’t care, or they think you don’t mean business, or they’re just black-hatted, mustachioed arch-villains bent upon the destruction of society through their disregard of intellectual property laws. Y’know. The founders of Napster. (I kid, I kid.)
In this situation, your registration with the copyright office will be immeasurably in your favor, because you can’t even file an infringement suit without a registration! Without a registration, the only redress you have is to write letters and cry into your pillow.
If you decide to wait until someone has already infringed on your copyright, you’d better be quick about registering.
Copyright holders who register in a timely manner are entitled to significantly greater damages in infringement suits. Many victims of copyright infringement are only entitled to actual damages – the amount of money the other person gained from the infringement. This usually isn’t much at all, so the costs of filing the suit will far outweigh the damages that you’ll be paid in this instance.
However, when you register in a timely manner and successfully sue the infringer, you’re also entitled to what are referred to as statutory damages, as well as court costs and legal fees. This is a HUGE incentive to register your works.
If your work is published – and, considering as most of us self-publish these days, it probably is – you have two chances to register in what is considered a “timely manner”. Your registration is considered timely if it’s done either:
a) within three months of publication, or
b) before the infringement first occurred.
If your work is “unpublished”, you must register before the infringement occurred in order to be eligible for statutory damages (which can be as high as $150k!), court costs, and attorney fees.
If you didn’t already, I hope you’re starting to see how government can be the only arbiter of copyright. Registration incentives aside, copyright and intellectual property laws define the scope of the protections that you’re entitled to in the event that your music is stolen or used without your permission. Remember from last week that copyright was written into the body of the Constitution – it was deemed more important than the Bill of Rights as evidenced by the fact that it’s not an amendment – in order to “promote the Progress” of the arts. Without these laws in place, there could be no enforcement of any kind of protections, or limits on the usage of another person’s intellectual property.
So while it may feel nice to think that in a perfect world all artists and their works would be protected without the need for government oversight, the cold hard fact remains that copyright is governed by a series of laws; so if you want some redress in the even that your intellectual property is stolen, get thee to Form PA.
But How Do I Register?
As I said earlier, copyright registration could hardly be easier.
Whereas a composer used to have to get Form PA (for Performing Arts, which we shared with playwrights, filmmakers, choreographers, and recording artists), there’s now one online form for most types of registrations, Form eCO.
The advantages of eCO over the paper forms are pretty huge. First and foremost is the lower filing fee. Remember how I said earlier that I paid $65 for the registration of my Sonata? The paper version is still $65, but the online form is a whopping $35. Much easier on the pocketbook!
There’s also a much faster processing time thanks to the lack of paper. Transmission is immediate, nobody needs to sort through stacks of mail and forward them to the appropriate department, and there’s no sloppy handwriting to decipher. Everybody wins! Except maybe the post office….
You can also track the status of your registration, which is nigh on impossible with paper applications.
I just took a moment to go through Form eCO with one of my recent compositions, and it took me a whole five minutes to get through the registration. Definitions and instructions abound, and are very, very, very readable – they’re there to help you understand what you’re doing, not confuse you – and the form tailors itself to your needs – almost nothing is extraneous.
Alas, and alack, I would not recommend (again, this ≠ legal advice) registering works as a collection, unless they are unpublished. (If your works are available to the public, including through your own website, they are considered published.) The Copyright Office’s various publications and sets of instructions repeatedly say not to do it. That said, if you feel compelled to register your separately-published works as a collection, be it on your head.
To learn more about copyright and registration, check out the various publications available at the U.S. Copyright Office website. Also, I highly recommend Stephen Fishman’s The Copyright Handbook, available from the excellent Nolo Press. The ebook version of The Copyright Handbook is on both of my computers, my phone, and my tablet so that it’s available any time I might have questions. I’m a big fan of Nolo, which is a great online legal resource, with many free articles and lots of information. In fact, tonight, one of my favorite online book stores had an amazing sale, so I snagged a handful of Nolo’s books to add to my collection.
The Poor Man’s Copyright
“But $35 to register each work is still too expensive,” I hear you say. “Can’t I just use the Poor Man’s Copyright?” To which I repeat: copyright registration is required in order to file suit for copyright infringement.
For those of you unfamiliar with the term, the poor man’s copyright refers to the practice of sealing a newly-finished work in an envelope and mailing to yourself. The postmark on the envelope, according to this myth, establishes the date of copyright so that anyone attempting to infringe on the copyright at a later date will be foiled in court when the postmarked envelope containing the copyrighted work is produced as evidence.
All well and good, but again: without registration, there can be no infringement suit. And with registration, you’ve only wasted a perfectly good envelope and the cost of postage.
So let us hearken back two weeks to my exhortation to think like a business. Your registration with the Copyright Office is two things: an investment and insurance.
You’re investing in your security as a business, and in the future of your works. You’re also insuring – for a one-time fee, rather than a monthly premium – that should the unthinkable happen, you’re protected against the bulk of your loss. You may, in fact, come out ahead financially, depending on the severity of the infringement and the damages that you are awarded.
If you have catching up to do, do it. Do one piece a week if you can, or one a month, or one every other month. But get it done – protect yourself and your work.
Make copyright registration a part of your self-publishing process. And if you’re nervous about the forms, do a couple of dry runs first – fill some out for different works in your catalog, but don’t submit them, just shred them before doing it for real
So who’s registering works this week? I know I have a bit of catching up to do.
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Hey, I just went on and registered my string quartet after reading this. I like the one a month idea to get through my “back catalog” without spending a ton at once. Nice.
Hey, Nick! Glad to hear it! I’ve got a bit of catching up to do, myself, so I’ll be following the twice-a-month schedule til I’m caught up. Kind of obsessed lately with the idea of amortizing expenses – so much simpler than dropping a ton of money in one go.
I really appreciate this series and your work on it, but in this case I’m going to disagree with your premise. It’s vanishingly unlikely that any given piece would be used in a way to which a lawsuit would be the best response.
Aside from file sharing, the most common copyright-abuse scenario is a small non-profit like a dance or theater company using a recording of a piece without any attempt to license it (either willfully or in ignorance). The most consistently productive response to that is contacting them and insisting on a retroactive licensing fee. Suing them would be enormously counterproductive in career terms.
I am constantly hearing stories of composers successfully interacting with users who didn’t know they needed a license. Those users need a push, not a lawsuit.
(At least in concert music, I have *never* heard any modern example of the copyright theft of popular imagination — someone just claiming they’re the actual creator of another person’s score.)
Registering copyrights at $35 a pop feels to me less like insurance and more like entering a vague lottery in which the prizes/payoffs aren’t defined or realistically imagined.
You are totally right that the most egregious thing we’re likely to run into in our careers is an unlicensed performance, or a dance company or non-profit using our work without asking. And the best way to handle that is probably a phone call or an email. Lawyering up at the drop of a hat certainly isn’t the way to go, but we should be prepared to protect our interests in the event that something major does happen. The phone call/email/asking gently option was quite the oversight on my part, and one that I’ll address more fully next week – so I sincerely thank you for pointing it out!
I still think it’s important to register your copyrights for the same reason I think it’s important to have home or renter’s insurance. Most of us (knock wood) won’t have to deal with the heartbreak and anxiety of losing everything in a flood or earthquake or fire or other disaster. And most of us also won’t have to deal with any sort of major copyright infringement. But it’s not unheard of, even in our industry. I’ve got an example in mind that was related to me, in which someone did put their name to another person’s score, but I don’t want to share it here until I check that I’ve remembered the details correctly. I’ll post it here when I’ve heard back.
Also – thanks so much for commenting! I’m glad to hear that you’re enjoying the series!