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Thursday, February 9, 2017

Copyright Law


How Are Copyright Laws Enforced?

by Tay Gotti Blogs
A copyright for an original work of authorship gives the copyright owner a set of property rights. During the term of the copyright, the copyright owner has the exclusive right to reproduce and distribute copies of the work, prepare derivative works, and perform and display the work. A copyright owner also has the right to authorize others to use her work. Copyright laws prohibiting the unauthorized use of copyrighted works are enforced through civil lawsuits and criminal prosecutions.

Infringement

Infringement occurs when a person exercises one of the copyright owner’s exclusive rights without permission. Not all unauthorized uses of a copyrighted work constitute infringement, however. Federal copyright laws place limitations on the grant of exclusive rights. For example, the act of reproducing part of a copyrighted work may not be infringement if the reproduction is used for certain purposes, including news reporting, teaching or commentary. This limitation on copyright is known as "fair use."

Civil Lawsuit

To enforce his copyright, a copyright owner may file a lawsuit in federal court, alleging infringement by a defendant. In court, the copyright holder must prove that his copyright is valid and that the defendant’s actions infringed upon his statutory rights. In a civil lawsuit, enforcement of a copyright entails injunctive relief and monetary compensation. This means that a court can order the offending party to stop using the copyrighted material, and also order that party to pay the copyright owner.

Injunctions

The Copyright Act enables courts to provide injunctive relief that is “reasonable to prevent or restrain infringement.” After a copyright infringement lawsuit is filed, but before the case is tried, a copyright holder may petition the court to issue a preliminary, or temporary, injunction to prevent the defendant from continuing the alleged infringing behavior. An injunction is a court order that requires a person to perform, or to refrain from performing, a specific act. To determine whether an injunction is necessary in a copyright case, a judge examines the broad situation and weighs the likely impacts of an injunction on each party. A court may also issue a permanent injunction if the lawsuit results in a finding of infringement against the defendant. This type of injunction prohibits the defendant from engaging in future infringement of the plaintiff’s copyright.

Monetary Compensation

When a copyright owner wins an infringement case, the court typically orders the defendant to pay monetary compensation for losses that the plaintiff suffered as a result of the infringement. There are three types of monetary compensation in copyright cases: damages, profits and statutory damages. Damages are the actual harm caused by the infringement — sales lost by the plaintiff, for example. A copyright owner may also recover any additional profits that the defendant made as a result of the infringement. Actual monetary losses are difficult to prove in many copyright cases. The Copyright Act allows plaintiffs to request courts to award statutory damages in infringement cases if the copyright owner registered the copyright with the U.S. Copyright Office before the infringement occurred. Statutory damages can range up to $150,000. The Copyright Act also gives courts the discretion to order a copyright infringer to pay court costs and a plaintiff’s reasonable attorney fees.

Criminal Enforcement

Most copyright infringement cases are enforced through civil lawsuits. In the most serious cases, an alleged infringer may also face criminal charges. To be criminally liable for copyright, a person must have committed the infringement willfully. The infringement must also satisfy one of three specific requirements: it was for the purpose of gaining a commercial advantage or a private profit, it involved the reproduction or distribution of at least 10 copies of a copyrighted work that have a total value exceeding $1,000, or it involved the distribution of a work being prepared for commercial distribution over a publicly accessible computer network. Copyright infringement can be a felony or a misdemeanor. A felony charge must involve an infringement of the copyright owner’s reproduction or distribution rights. A felony conviction carries a maximum sentence of five years in prison and a maximum fine of $250,000. A misdemeanor charge results when either the reproduction or distribution involves only a few copies or resulted in little economic gain or if the infringement involves a copyright owner’s other exclusive rights, such as public performance. A misdemeanor carries a maximum sentence of one year in prison and a $100,000 fine.
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Protecting Your Music Through Copyright, Trademark, & More !



The Internet is a key component of today’s music industry. Social media, websites, email lists, platforms for music promotion… music has been strongly impacted by the web, in a good way.
At the same time, however, the Internet can threaten musicians’ art with online piracy and copyright infringement.
If you ask artists if they are serious about their music career, most will answer affirmatively. Not many take care of the legal side of their career, though. In the latest episode of the Jazz Spotlight podcast, I sat down with New York-based attorney Jo-Ná Williams to talk about what independent musicians can do to protect their music. Whether you’re about to graduate from music school or have been an indie artist for years, you can follow these simple tips that will avoid you huge legal headaches in the future.

1. Trademark

trademarkConsider having a trademark to protect your band or stage name. During our chat, Jo-Ná mentioned Brit artist Tahliah Barnett, who is now in a legal battle with alternative pop duo The Twigs over her stage name FKA Twigs.
The first thing you have to do, in order to trademark your band name is search for it on the United States Patent and Trademark Office’s website (if you’re in the States). On the site, you can check for trademarks that have already been registered or for which an application is pending, and can submit your own trademark application. For more information on the topic, I suggest you read this post by attorney Michael I. Santucci.

2. Copyright Your Work

copyrightJo-Ná made it clear: copyright your work, no matter what stage of your career you’re in. “Some artists think that as long as they have created their work and it’s in tangible form, then it’s copyrighted,” she said. “However, it’s not necessarily so. It can happen that people, who had submitted their lyrics or beats to companies hoping for breakthrough, end up hearing those same lyrics or beats in someone else’s song”.
In order to make sure that nobody is going to misappropriate your music, consider registering your copyright.
As Jo-Ná Williams explained, there are two types of copyright:
– copyright underlying the artwork (the song/composition)
– the copyright of the actual sound recording (for example someone performing a piece of music)
Copyrighting your music is cheaper than you think. The application to copyright one work – be it a song or an entire album – is $35 and can be submitted at copyright.gov. Organizations such as the Volunteer Lawyers for the Arts can also help you with such legal matters.

3. Have a Lawyer Look at Your Contract(s)

eyeOk, not everybody can afford a lawyer, especially those in the early stage of their career. It’s important though, as Jo-Ná pointed out, to have someone look at your contract(s) before you actually sign. Again, the Volunteer Lawyers for the Arts and similar organizations can provide assistance with these issues.
If you ignore this recommendation, you may end up just like the artist Jo-Ná mentioned in the interview, who had to pay her producer more money than what initially agreed upon, in order to release her album. Had she had someone look at her contract, she could have avoided being taken advantage of.

4. Avoid Misappropriation of Your Music Online

misappropriationAt this point, you may be asking yourself “how in the world could I possibly monitor every single piece of music I upload on the Internet?” Well, Jo-Ná had a couple of recommendations for this: digital watermarks and Google Alerts.
If you’re really worried that someone could misappropriate your music, then you should consider adding a digital watermark to your music. You can do that with services like AudioLock and Digimarc.
Another thing you can do to “monitor” your music online is setting up Google Alerts. To avoid clattering your inbox, I recommend you create a new Gmail account that you use exclusively for this activity. You can create alerts pretty much for everything you want to keep an eye on: your band name, your album or song title.
And having Google Alerts can also come in handy in case you’re mentioned in a music blog or online magazine. Whenever your name (or album title) is mentioned somewhere, you receive an email notification with the link to that webpage.

5. Don’t Forget About Your Royalties!

moneyProtecting your music also means taking care of your music royalties. Sign up for SESAC, ASCAP, or BMI — and SoundExchange — to collect different types of royalties from your music and get paid what you deserve.
From February 23rd until March 4th, Jo-Ná’s has organized a FREE online initiative called Artist Empowerment Challenge. Check out www.artistempowermentchallenge.com to learn how you can go from “starving musician” to “empowered artist” and connect with like-minded people (and if you’re on Twitter, look for the hashtag #AEChallenge).


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What To Do If Someone Is Using Your Copyrighted Work/Music


What can I do if someone is trying to use my copyrighted work without permission?
 
When someone reproduces your work without your permission, it can be very frustrating. If you suspect someone might be infringing on your work, you should do a bit of homework by determining if the use of your work actually violates copyright law or not. 
 
1. First, you should determine if your work that has been copied is protected by copyright law. 
 
To recap, copyright law protects the expression of almost every creative expression imaginable, as long as it’s fixed and original. It doesn’t protect ideas, facts and any utilitarian language. 
 
Imagine that you spoke to someone about writing a screenplay about a spy who needs to go to therapy while undercover, and then that person writes a screenplay about a spy who needs to go to therapy. At first glance, you might think that that person has stolen your idea, thus infringing on your copyright. That’s not accurate, though. Since when you spoke to this person about your idea, it wasn’t a fixed expression, it was still only an idea. Ideas aren’t protected by copyright law. 
 
2. Next, you should determine whether you actually own the rights to the work.
 
If the work was created for someone else or during the course of your employment, it’s possible that you may not own the copyright. Only the copyright holder can enforce his or her own copyrights. So if the copyright holder is the company that you worked for, your only recourse for infringement is convincing the company to sue the infringer. You do not have any legal right to send a cease-and-desist letter or a DMCA takedown notice, although you can do it anyway. And you definitely don’t have the right to sue. 
 


You must also consider whether you gave a license to someone to use your work. This license could take the form of a written contract, or it could just be oral agreement granting them permission. Either way, what looks like an infringement could actually be an authorized use. It could even just be a misunderstanding by someone who interpreted the scope of the permission they received more broadly than you did when you gave it.
 
3. Even though the person has used your work, they might have a successful fair use defense. This means that their use of your work is not illegal.
 
While this isn’t directly related to the law, if you’re bothered by another’s non-infringing use, you can contact that person to let her know why you’re bothered and work out a solution  without actually invoking the law. Besides, formal legal procedures and threats often complicate simple problems that can be solved through communication. 
 
Keep in mind that the law does allow anyone to reuse, adapt, quote, criticize portions of your work without your permission as long as they adhere to the guidelines of fair use, even if you object to the way that person has re-appropriated your material, and even if they don’t give you credit for it. Before going forward with an infringement claim and hiring a lawyer to analyze your situation, it would be highly beneficial to educate yourself on the basics of fair use and whether it may apply to your situation.
If you believe someone has copied your work in an unauthorized way and would like to know your best course of action, feel free to contact New Media Rights via our contact form to find out whether you qualify for free or reduced fee legal services. We also offer competitive full fee legal services on a selective basis. For more information on the services we provide click here.
 
Frequently asked questions about how to react if you believe someone is infringing your copyright
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Wednesday, February 8, 2017


How Do I Copyright My Music? 
That's a question I get asked a lot here at the Music Biz Academy. And so, I decided I might as well write a formal article about it.

I discuss the issue in detail in my book, How to Promote Your Music Successfully on the Internet, so I've more or less included an excerpt from that here. So here we go...  
Why Copyright My Music? 
If you see yourself as a serious musician (and I presume you do), you would be wise to register your original songs with the U.S. Copyright Office (if you reside outside of the U.S., skip to the section on International Copyright below). This will protect you in the event that someone, somewhere, steals one of your songs and claims it as their own. Whether you want to copyright just one song for possible digital distribution or an entire CD of collected works, the process is the same. 
The eCO Online System 
The U.S. Copyright Office encourages you to register your music via an online registration process called the eCO Online System. Once you go there, create an account for yourself, then log in and you’re ready to start. Registering a copyright via this process is not all that difficult, but the technical language can be confusing. The online process does walk you step-by-step through filling out the document, but even so, take your time. Carefully read the help links (the underlined text) provided each step of the way. If you do that, it will help you understand what information goes where.

You’ll find a copyright tutorial for the eCO system at http://www.copyright.gov/eco/eco-tutorial.pdf . I recommend you take a look at that before you undertake this process to see what you’re in for.
The filing fee for online song registration is $35.

A few tips regarding the eCO process that I think might help you:
  • You’ll want to register your music as a "sound recording" as this kind of registration includes not only the performance, but the underlying music itself.
     
  • Under "Title of Work" add the name of your CD first and set the "Type" as "Title of work being registered." Then list your song titles and set the "Type" for those as "Contents Title." So the album name is the "Title," the individual songs are the "Contents."
     
  • If you have cover songs on your album, you’ll exclude those under the "Limitation of Claim" section. For example, if track 7 on your CD is a cover tune, under "Material Excluded" check the boxes for "Music" and "Lyrics" (if you have lyrics) and then in the space for "Other" indicate "Track 7." Then under "New Material Included" check all the boxes and under "Other" list the track numbers for your original songs. So here you specify what tracks to exclude for copyright registration (because they belong to someone else) and which tracks to register under your own name. If all the songs on your album are original, you can skip this section entirely.
Once you have filled out the form and verified all your information, add it toyour cart, pay for it, and then you’ll receive an email with instructions on how to print out your registration and mail it in with copies of your CD. You can also upload the files digitally, if you prefer.

If you don’t wish to go through the online process, you can type all of your information in Form CO, print it out and mail it in. And you’ll find instructions for Form CO at http://www.copyright.gov/forms/formco2d-ins.pdf . Fill out the PDF file following the instructions and then print TWO copies. One copy for yourself, and one copy to mail to the Library of Congress to the address provided.

The cost to submit the form by mail is $50.00.
Either way you go, whether online or via mail, it will take six months to a year for the Library of Congress to process your registration. However, once you’ve submitted your work, you’re officially protected. If you use FedEx to send your copyright forms (which I suggest you do), keep your tracking number handy and you can present this as legal proof of your effective date of copyright registration should you ever need it.
What Does Copyright Registration Do for Me?
Well, if someone does steal your work, not only can you prove the work is yours by your registration, but you can also sue for damages (you can’t legally sue for damages if your song isn’t registered with the copyright office). If the copyright infringement is determined to be deliberate, your attorney can initiate a formal criminal investigation.

Registering your songs' copyright grants you these exclusive rights:
  • The right to make copies and duplicate your CD
  • The right to distribute your music
  • The right to prepare derivative works (alternate versions, new arrangements)
  • The right to perform the songs publicly
  • The right to display the product publicly
  • The right to perform publicly via digital audio transmission
Once you’ve registered your sound recording (your CD) with the U.S. copyright office, these rights belong exclusively to you and you alone (provided, of course, that you are the actual copyright owner). No one can take those rights from you.

Once your song is registered, you no longer have to worry about someone stealing your song idea and taking credit for it. If someone does that, gets a hit out of it and you can prove the song is yours with your registered copyright, you are going to smile all the way to the bank when the court awards you damages, which can be very high for copyright theft.
How to Copyright Individual Digital Creations
What if you only want to copyright a single song (or video, or photo, or article, or blog or whatever) to prove it’s yours? See http://www.myfreecopyright.com/ . At this web site you can upload your digital files, be they music, video, pictures or whatever, and they are instantly copyrighted and you can prove the date/time of registration. The service is free, and it’s a very simple way to copyright your individual music creations. Just so you know, however, even though you can use this digital copyright in a court of law to prove infringement, you cannot collect statutory damages from the infringer. You can collect lost profits that might be determined, but not statutory damages which is generally where the big money comes from. To collect statutory damages, you still need to send in a registration form into the copyright office as stated above.
What About Creative Commons?There is an alternative means by which you may copyright your work called Creative Commons ( http://www.creativecommons.org ). Basically what this does is create a copyright for your music whereby instead of all rights being reserved, only some rights are reserved. This invites others to use your work for certain purposes without having to get permission from you first. In theory, this means people searching for music to use in their products or digital creations are more likely to use your music if they don’t have to jump through a lot of legal hoops to make use of it. So, for example, you might allow a song to be used in a non-commercial product (ie. no financial profit for the distributor) without forcing the licensee to get permission from you, but still reserve the right to collect a royalty if the product in question is a money-maker. The Creative Commons copyright is still a rather new concept, and there are many variations on it that may make the concert confusing for the potential licensee. Even so, it is something to at least be aware of if the concept becomes more widely recognized and accepted. For a list of the different Creative Commons licenses available, see http://creativecommons.org/about/licenses/meet-the-licenses
What About International Copyright?If you are not a citizen of the United States, obviously the comments above do not apply to you as every country handles the copyright process a bit differently. However, chances are that your homeland is a member of the World Intellection Property Organization (WIPO). If so, you can start researching your copyright options at http://www.wipo.int/members/en/ . Select your country name from the WIPO list, follow the “contact information” link, and that will take you to a page that lists the web site address of the copyright office for your country.
Some notable and related links from this article:
The U.S. Copyright Office: http://www.copyright.govCopyright and Fair Use: http://fairuse.stanford.edu
Copyright Your Web Site: http://www.gocopyright.com
Copyright Form SR: http://www.copyright.gov/register/sound.html
Copyright Your Digital Creation: http://www.myfreecopyright.com
World Intellection Property Org: http://www.wipo.int/members/en/The Harry Fox Agency: http://www.harryfox.com/index.jsp
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