How to Copyright Your Catalog

[Tony]

I’m in the process of building my music catalog. So far, I have about 30 tracks. How should I go about copyrighting tracks?

I was thinking to send tracks in for copyright every time I finish 10 tracks. Is this a good way to copyright my catalog as I slowly build it?

I want to be able to showcase my catalog as I build it but I want to make sure my music is protected while I’m doing that.

Thanks

[Art Munson]

This might help.

Copyright Questions

[Tony]

Thanks Art. I read the thread that you posted. It seems like there is a debate going in regards to whether it’s better to copyright individual works or a collection of works.

What I gathered from the debate is that I should copyright each individual work so that I can register each work at a PRO and collect royalties if the work is used.

However, I don’t think this is correct. For example, if I register 10 works as a collection under Form SR for copyright, I can then register each individual work at a PRO. I don’t see what the problem is with saving money to do this.

Under Form SR, you give your collection a title name and on the second line underneath, you list your individual song titles. Then under Nature Of Authorship, you write “all music and sound recording.” This covers all areas of the copyright.

So unless someone can convince me otherwise, I will be copyrighting a collection of works under Form SR everytime I complete 10-12 works and I will then register each work with the PRO.

 

[MichaelL]

Hi Tony,

Let me simplify…

The issue with registering as a collection arises when you wan to split the collection among different publishers because a collection is a single work. Splitting up the collection among different publishers would be like having Random House publish a few chapters from a book, and Knopf publish a  few more chapters, and Penguin publish some more chapters….

Registering a collection is not a problem if YOU are the only publisher. For example, you put all of your tracks into different RF libraries and DO NOT assign them publishing.

Registering a copyright DOES NOT protect your work. It is merely a threshold requirement to get into federal court if YOU want to sue someone for infringement. If your work is not registered and some one copies it, you will have no legal recourse. That said, the damages threshold to get into federal court is $75,000. Very few library cues ever get close to making that kind of money.

Another consideration: if you put your tracks into re-titling libraries and some one “steels” your music, it’s very unclear whether your copyright would have any value, especially if you registered a collection, and then put it into multiple re-title libraries. The re-titled version of your music is NOT REGISTERED and therefore not eligible for federal court. If I was defense counsel I would immediately file a motion for dismissal  on the basis that the work in question was not registered.

And one final consideration, beyond the 75K threshold, set aside 100K for legal fees. Copyright litigation is very expensive.

Cheers,

MichaelL

Yeah, I am a lawyer and I should start charging for advice  🙂

 

[MichaelL]

AND….I know somebody is going to say that you can just re-register a part of the collection if an exclusive publisher wants it later. Maybe….

That might work if you have been the only publisher, but NOT if you’ve already put the track into multiple libraries and/or  it’s been retitled.

Bottom-line: for  copyright to be of any value, you’ve got to play by the rules. The government isn’t very flexible that way.

Why is it that people go to a doctor when they’re sick, but are quite comfortable at guessing how the law works?

_MichaelL

[Tony]

Thanks MichaelL. Ok, so basically my copyright for a track would be worthless if someone re-titles my track and uses it. Isn’t that how certain tv networks get away with not having to pay royalties to the composer if a work is used for a show? The sync fee is the only thing paid for.

The only thing that was unclear was your 2nd paragraph. I own my tracks 100% including sync and publishing.  What do you mean by putting all of my tracks into different RF libraries and DO NOT assign them publishing? What do you mean by “assigning” them publishing? I think it most music library deals, the composer keeps the publishing. Please explain.

Does this mean I will not be entitled to collect royalties because my tracks are part of a collection? How can that be if I register each individual track to BMI?

[Advice]

Question for MichaelL… (And it IS a question, not a statement.)… I always understood that you don’t copyright TITLES, you copyright the underlying work. Obviously, there are many copyrighted songs with the same title.

So, I’m confused as to why your track in multiple re-title libraries would have any impact on a copyright infringement claim. There is material on deposit with the LOC that shows exactly the music, lyrics, etc. If a library place your music on a TV show under some title that doesn’t match the copyright title, wouldn’t the acutal music itself be the item to consider?

Just curious…

And given that you need substantial damages to file a copyright claim lawsuit, I think many songwriters and composers just plain worry too much about this. We have to weigh the cost of filing fees against potential earnings. If I were to file every track as an individual item, I’d spend $35 each. Not very cost effective for an extremely low risk scenario.

Thanks Michael. I always appreciate your input!

Happy Holidays!

[MichaelL]

@Tony and @Advice…

I’ll answer your questions tomorrow morning. Gotta get some sleep now.

Hang in there until tomorrow.

_Michael

[MichaelL]

I think it most music library deals, the composer keeps the publishing. Please explain.

@Tony, no this is not correct. As I’ve stated before the music library business is a tiered business.

1) The top level exclusive libraries, that operate under the traditional business model, most often acquire music on a work-for-hire, or buyout basis, where the composer transfers copyright ownership to the library.

2) Re-titling libraries operate in a legally gray area. The composer does not transfer any ownership rights to the re-titling library. Instead the re-titling library changes the title slightly or adds a code, so that it can register that title with a PRO, as the publisher, and collect royalties. So, some writers put the same track into multiple re-titling libraries. As a result, the same piece of music, gets registered with your PRO many times under different titles. Broadcasters do not like this practice, among other reasons, because they end up paying for the same piece of music multiple times, when they should only pay once, under their blanket payment to your PRO. I’m not going to argue or debate the merits of the practice. Suffice it to say that many re-titling companies see the writing on the wall and are developing exclusive catalogs.

3) Royalty Free libraries generally do not re-title, and they generally do not act as publishers. It might be easier to think of royalty free libraries really as “stores” where you sell your music.

AudioSparx offers the option of administrating writers’ publishing, in which AS essentially acts as the publisher. This AS option is not a retitling scheme, and it can be non-exclusive. In other words, you can put your tracks in as many other RF libraries as you want (except the “banned” list). This is not legally gray because there is only one publisher…AS.

SO, to finally answer your question, what I mean is that if you are going to register your works (copyright) as a collection there must be single copyright owner. Whether, you act as publisher, or you let a company, like AS, administer your publishing, you still own the copyright.

@Advice…the copyright in your music is established at the moment your work is contained in a fixed medium, be it a recording or on paper. A copyright registration is your ticket into federal court (which is where infringement suits must be filed). You are correct, that you cannot copyright titles. It is the underlying work that is “protected.” However, when a library re-titles, and does not reregister, no registration exists in the new title.  

One of the most likely scenarios in which someone may copy your music occurs when a composer is given a temp track to work from. That is a nearly standard practice in the industry, where an editor cuts a film, or TV show with temporary music.

I’ll give you a typical law school hypothetical:

You write a song called “Blue Sky” and you register that title with the copyright office. Great. Then you give it to retitling libraries A, B, & C. A retiles it “Blue Skies.”  B retitles it “A Very Blue Sky.” C retitles it “Blue Sky C-101.”  The retitling libraries do not register the new titles with the copyright office. That would be illegal because they don’t own the copyright.

All of the libraries send out their catalogs gratis on hard drives. PlaidBoy Hipster, the editor for XYZ productions is working on a new reality show about tragic holiday cooking accidents called “Deep Fried Turkeys.” PlaidBoy puts “Blue Skies” from library A into his temp track. XYZ Productions then has a composer write music for the show, based on the temp track.

One night you’re watching “Deep Fried Turkeys” and you hear a piece of music that sounds an awful lot like “Blue Sky.” But, nothing shows up in your tunesat report. No cue sheets are filed with your PRO. You wait 6 months and no backend money arrives (but you already bought that new car!) Outraged, you call an IP attorney and convince him, or her, that you’ve sustained 75K in damages. You give the IP attorney a 10K retainer to file suit in federal court (meanwhile the meter is running).

In response to your suit, XYZ Productions hires a ruthless (me for example) attorney. I depose PlaidBoy who swears under oath that he used “Blue Skies” from library A in the temp track. He’s never heard of you or “Blue Sky.” Next, I depose the composer. He says that he was inspired by “Blue Skies” from Library A on the temp track. But, he says, “Blue Skies” contains so many commonly used loops and sounds that it’s almost generic.

Next, I search the Library of Congress for the title “Blue Skies” and find only one song registered under that title and its by Irving Berlin…not you. So, I immediately file a motion to dismiss your suit on the basis that you have no standing, because there is no registration for the title “Blue Skies” in your name. We never get to hear the underlying work because the judge grants the motion.

Alternatively, the courts agrees to proceed, at which point you write your attorney a check for another 10K. We enter a lengthy process involving expert testimony on both sides comparing your song “Blue Sky” to what XYZ’s composer wrote. Our experts successfully convince the court that numerous composers using the same loops and sounds has resulted in a proliferation of fairly generic music, that all sounds alike, and it would be nearly impossible to prove that XYZ’s composer copied any single work. As evidence we site the number of times fingerprinting detects the wrong title.

Next, I call you as a witness to explain to the judge why you registered your works as an unpublished collection to save a money, but then you published your works using a re-titling scheme, hoping that you’d make more money that way.

Finally, I introduce XYZ’s composer’s PRO statement into evidence, which shows that he made $2.25 for the 20 seconds of music you thought sounded like your song. Upon seeing that your liquidated damages are $74,997.75 short of the federal threshold, the judge dismisses the case. At which point, your attorney hands you a final bill for another 25K including his fees and expenses (experts aren’t cheap).

OK…that was a long winded, but hopefully humorous look at why gambling with copyrights and re-titling may not be such a hot idea.

Now to clarify a few legal points:

There are two ways to copyright a collection. Here’s the language from the law.

(A) In the case of published works: all copyrightable elements that are otherwise recognizable as self-contained works, that are included in a single unit of publication, and in which the copyright claimant is the same; and
(B) In the case of unpublished works: all copyrightable elements that are otherwise recognizable as self-contained works, and are combined in a single unpublished “collection.” For these purposes, a combination of such elements shall be considered a “collection” if:
( 1 ) The elements are assembled in an orderly form;
( 2 ) The combined elements bear a single title identifying the collection as a whole;
( 3 ) The copyright claimant in all of the elements, and in the collection as a whole, is the same; and
( 4 ) All of the elements are by the same author, or, if they are by different authors, at least one of the authors has contributed copyrightable authorship to each element.

Note that in both cases, the copyright claimant (owner) must be the same. If you register an unpublished collection you can break-up the collection and reregister the works singly later.

You may find this helpful. http://www.copyright.gov/circs/circ01.pdf

I’m not going to debate retitling, and/or registering works as a collection. I register works as a collection when I am acting as the publisher, or if I am assigning the collection to only one publisher.

It’s time to go on “sabbatical” now. I’ve got a house to sell, a new studio to build, and a catalog in desperate need of attention.

HAPPY HOLIDAYS TO ALL

MichaelL

 

[Advice]

Thanks and Happy Holidays, Michael! 🙂

[Tony]

Thank you MichaelL for such well-though out explanation. The part that I would like to focus on is this one paragraph that you wrote:

“Next, I call you as a witness to explain to the judge why you registered your works as an unpublished collection to save a money, but then you published your works using a re-titling scheme, hoping that you’d make more money that way.”

Based on your hypothetical, I don’t see how copyrighting “Blue Sky” would have produced a different outcome in the case compared to having “Blue Sky” being a part of an unpublished collection.

Based on your hypothetical it doesn’t seem like it matters. Apparently what matters is that I have 100% publishing rights to my music and that I own 100% of my music.

I don’t think there’s anything we composers can do if a production company uses a temp track as inspiration for a new piece of music composed by someone else.

@MichaelL…thank you and Happy Holidays to you! Hopefully I’ll see you here after the new year.

 

 

[MichaelL]

“Based on your hypothetical, I don’t see how copyrighting “Blue Sky” would have produced a different outcome in the case compared to having “Blue Sky” being a part of an unpublished collection.”

@Tony…good observation. Part of the point was to illustrate the potential risks of retitling. Suppose that the composer registered Blue Sky didn’t put “Blue Sky” into a re-titling library? The most important difference would be that he would now have access to federal court.
The rest of the argument was typical legal hypothetical BS made up of potential defense arguments based upon the premise that so much music sounds alike these days, that sometimes even technology can’t tell one from the other.  But, if that wasn’t the case, if “Blue Sky” didn’t use loops, and was very original, it might be obvious that XYZ’s composer infringed on your copyright. What then?
That’s my next point. The reality is that 99.9% of the hundreds of thousands of library cues out there will only make the composer a few hundred, or at best a few thousand dollars, if any, over the course of the life of the cue. So, even if someone obviously plagiarizes a cue, the chances of reaching the 75K damages threshold are minimal at best.
There are exceptions. Trailer cues that can command up to 20K in licensing fees, for example. Once in a while, lightning strikes and a cue like “Mind Heist” can be worth well over six figures. That’s the stuff dreams are made of. For 99% percent of the writers (including me) uploading tracks to RF libraries and to other non-exclusive libraries it’s only a dream.

Based on your hypothetical it doesn’t seem like it matters. Apparently what matters is that I have 100% publishing rights to my music and that I own 100% of my music.

Does that mean that you shouldn’t register your music with the copyright office? No. I would never recommend that. What matters, if your going to register your copyrights as a collection, is that you do it properly. If not, you could be wasting your time, and jeopardizing the validity of  the copyright.
People mistakenly assume that you can copyright a collection, and then put the tracks into different libraries (that each act as a publisher). That’s not what the law allows. The collection has to go to one publisher. The publisher can be you, or it can be a library. BUT…if you registered the copyright as an unpublished collection, you might theoretically be able to divide the collection later among different publishers, but you would have to reregister each component.
Bear in mind though, that the minute you upload a track to a library, you have published it, so then it’s really not an unpublished collection.
In the case of most , not all, RF libraries, you keep 100% of the publishing. In the case of re-titling libraries, and exclusive libraries, they take 100% of the publishing.
There are any number of pitfalls that you need to watch out for when registering as a collection.  For example, technically, in order to qualify as a collection the music needs to be organized in a way that makes sense as a collection, kind of like an AudioSparx soundpack.

I don’t think there’s anything we composers can do if a production company uses a temp track as inspiration for a new piece of music composed by someone else.

Unless you can prove 75K in damages, that is a sad reality. The other thing is that it is extremely expensive to pursue copyright litigation, so you need have a very good case. Which, brings me to the final point that I was making. The backend for 20 seconds of music on your typical reality or cable show pays relative pennies, so to speak. (I highly recommend Michael Nicholas’s pamphlet/guide on the subject for an eye-opener). A good sale from an RF library will net you $50 -$100…all of which is a long way from 75K.
So. Tony, I can see why you might think it’s pointless to bother registering your cues. But, what if you didn’t and someone copied your cue, AND it became the next lightning bolt, the next “Mind Heist,” and you had no ticket to get into court, because you never registered your copyright?
When writing  becomes your business, registering copyrights is part of the cost of doing business. It’s a business deduction. 🙂
I must say, all of this copyright talk, and the ongoing debate about retitling, has inspired my legal brain. You’ve motived me to join the Copyright Society, where I can discuss these ideas, and the state of the law, with other attorneys. Thanks. (I mean that)
For now. I’ve got a lot on my plate..selling, buying, moving, studio and catalog building…things that will take up a chunk of 2013.  Maybe down the road, I’ll incorporate a copyright blog into my website..stay tuned.
For now, Merry Christmas, Happy Holidays, and a Happy, Safe and Prosperous New Year!
MichaelL

[Michael Nickolas]

>I highly recommend Michael Nicholas’s pamphlet/guide on the subject for an eye-opener<

Thank you Michael. Art – I hope you wont mind if I mention it’s still available at http://www.guidetopricingmusic.com  Thanks.

[flac]

ok let me break it for you guys cause im reading and i see alot of information is missing but im not surprised because in the music industry theirs alot of mis leading information theyll never tell you the correct info and youll never find out unless you do your research. i found that books are the way to go. online theres too much info no telling which is correct and which is not. anyways heres the missing piece to your puzzle but their are 2 coprights within a music work. musical composition (PA) and sound recording(SR).
hope that helps and remember to do your research it takes about a year worth of researching to actually know whats going on depending on the time you have to do this.

[Author]

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