SCOTUS, Copyright, Sex, and Beer

Disclaimer: I am not a lawyer, I do not play one on TV, but like Jay-Z, I know a little bit…

You know you can’t mail yourself a recording of your song to get copyright protection, right? I mean, readers of this fine magazine know that; and we don’t have to go into all the crappy horrible legal advice. So, I’m going to skip that part. The basics: you are granted a “copyright” automatically whenever your creation is put into a ‘fixed form.’ In music, that means the composition is copyrighted when you write it out on a lyric sheet or a napkin, maybe put some chords on there, or sing a melody. That’s it. It just needs to be tangible, not in your head.  

However, having a copyright and registering a copyright are different. Registering a copyright is what the Copyright.gov office is for. It makes your creation a public record, preserved for all time, and provides a layer of protection on your creations. From time to time, the rules change.

The Supreme Court of the United States (SCOTUS)  just made one of those rulings that results in a massive change affecting all copyright holders, including music creators and writers.

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Here’s the gist.

The ruling does not change the nature of copyright at creation –  you still have a copyright the moment your creation is in a ‘fixed form’ – and you still have the power to use it for DMCA takedowns, assign or license it for monetary value, or to send cease and desist letters to parties you deem misusing your copyright. However, the new ruling states that in order to sue for infringement at all, you must have already applied and received (or been rejected initially) registration of a copyright.

This is huge. This changes the law massively. It used to be you could sue for infringement regardless of registration of copyright, you just couldn’t collect lawyers’ fees or statutory damages. That is no longer the law.

If you ever need to sue for infringement specifically, you must have registered your copyright with Copyright.gov. If the infringement has already occurred and you need to sue for infringement, you can still file an expedited copyright registration for upwards of $1000 ($800 in addition to the original fee, and $50 for each claim using the same deposit), but cannot go forward with standing until it is accepted or rejected (sometimes in cases of mistitling or other administrative error). This matters because the registration process can sometimes take many, many months, even over a year for the Office of Copyright to determine a registration.

Here’s the kill shot from the ruling and the majority opinion written by Justice Ruth Bader- Ginsburg: “§411(a)  bars a copyright owner from suing for infringement until registration…has been made.”

The ruling came in the case No. 17–571 Fourth Estate Pub. Benefit Corp. v. Wall-Street.com, which was actually about a licensing agreement between two companies covering articles. Strange how licensing of anything can change everything.

What does it all mean? You basically can no longer go without registering copyrights if you ever need to sue for infringement. This ruling makes it clear that the federal law will probably be the determinant in these cases, not the State of California, or New York, which have sometimes taken the lead on this issue.

What about the “Sex and Beer” in the title?

Well, honestly, it’s the only way to get you to read this far in a boring old copyright article. Copyright is sexy. File a registration and get a beer.

Here’s are the copyright basics.

Go to Copyright.gov – read through the circulars, seriously, you don’t need a lawyer to do this. If you are the author and the owner of the work or masters, this is really easy. (Also, this is where the split sheets I always talk about become very handy)

There are basically two forms for musical works – The PA (Performing Arts) and the SR (Sound Recording).

Use the PA form to register your songs (compositions) – meaning music, including any accompanying words.

Use the SR to register the recordings of your songs – this is usually the master you intend to sell or stream, not a demo.

Now, if you are doing an album or EP, and the owner of the copyright (author and sound recording) is exactly the same, you can use the SR to register both the underlying composition AND recording.

Fees are proposed to change in May 2019, but currently, if you file online, it’s $35 per each standard application, and $55 for all others. Add to that the “collections” exemption, where you could file multitudes of songs under one registration for a low price, will be limited to only 10 titles beginning in March 2019.

Going forward, the result of this SCOTUS copyright opinion will inevitably mean much, much longer registration times and a heavier workload for an office not known for being adequately budgeted or efficiently staffed. Remember, this will affect all copyright registrations. That means not just music but photography, plays, screenplays, treatments, serials, choreography, motion pictures, TV shows, stand-up routines, newspapers, journals, TV and radio broadcasts, audio books, serials, AND music performances, songs, live recordings, remixes, well… you get the idea.

Did I mention the MMA will complicate this too?

Hang in there. Go educate yourself. You can do this.

Plus, trust me, when you get an official copyright registration, it’s kind of a proud moment as a songwriter and musician, and well worth the time, money, and effort.

Here is the ruling, with all the fantastic boring legalese that you might not read, but probably should: https://casetext.com/case/fourth-estate-pub-benefit-corp-v-wall-streetcom-5

ABOUT THE AUTHOR

Michael St. James is the founder and creative director of St. James Media, specializing in music licensing, publishing, production and artist development.

U.S. Supreme Court photo by Patrick Thibodeau, used under a Creative Commons license.

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