Intellectual property law is complicated and nuanced, but an understanding of the fundamentals will help you be more effective in protecting your rights. Please note that the purpose of this article is to provide an overview of the intellectual property rights associated with music and the music industry in the United States. It is not intended, nor should it be used, as legal advice, but a launching ground for you to begin to learn more about your rights as a musician.

Why Copyright?
No matter where you are in your career, Intellectual Property laws, particularly Copyright law can greatly impact your art and income. Similar to a title on your car or house, a Copyright provides proof of ownership. Your songs, music and recordings qualify for Copyright protection in the United States of America as guaranteed in the Constitution.

Under current law, the owner of a Copyright has the exclusive right to reproduce works, create derivative works, distribute, perform and broadcast music. If you do not maintain control or legal interest in your creations, someone else can determine how your art will be used and reap the profits.

Generally, Copyrights attach to creative works at the moment of creation but are not secure until the works have been registered with the Copyright Office at the Library of Congress (the government agency that manages the copyright registration process). Properly registering your works with the Copyright Office protects your creations from both traditional and newer challenges brought about by technologies such as the Internet and home recording devices and ensures payment in the event of infringement.

You may have heard that if you mail a copy of the song, lyrics or recording to yourself that you have established your rights. Unfortunately, the "poor man’s copyright" is not enough to guarantee your rights or prove date of creation. A claim cannot be heard in court without a proper registration.

Under current law, only woners who register the work with the Copyright Office can defend their claim in court, and registration within three months of publication (within three (3) months of publication (publication is defined as the "distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental lease or "lending") are eligible for payments for statutory damages and attorney fees.

A song qualifies for a two distinct copyrights under the Copyright Act of 1976, a copyright for the Musical Work and for the Sound Recording. The copyright for a Musical Work includes both the lyrics and musical arrangements that accompany the lyrics. A Sound Recording is the fixation of the Musical Work in a recording and includes both the performance and the production/engineering.

When one person writes both the lyrics and the music for a song, the owner of the copyright is pretty straightforward. However, writing music is often a collaborative process. Technically, everybody who contributes to a song may have a claim to the ownership interest in the copyright. That is, the Copyright Act provides that all people who contribute to a creative work have an interest in the copyright. Therefore, if a third party, whether a producer or another artist, provides input on the song, he or she should be included as an author for purposes of the songwriting. The best way to make sure that all the interests of the parties involved are protected is to have a written contract that spells out what interests will be owned and by whom. A written contract will also assist in maintaining the expectations people have regarding publishing royalties.

How To Register
Registering is relatively easy to do and inexpensive ($30 each form). You can get the forms directly from the Copyright Office to register Musical Compositions you will need the Form PA - for Sound Recordings you will need the Form SR. The Copyright Office provides detailed instructions for each form and will assist you in the registration process.

The earlier you register your Musical Work and Sound Recordings with the Library of Congress, the more rights you have in the event that the Copyrights are infringed.

Registering your works before they have been published or performed publicly can also save you money. Register in advance and you can bundle all the songs you have written, and/or recorded on one Form PA and one Form SR and not pay the application fee for each individual song. This way you can title your application My Songs of Summer 2005 including "It is Hot," "When will it Rain?" and "Who says I have to sing in Tune?" and pay only $30 vs. $90 for each song individually.

If you wait until after you have performed the songs or published them, you cannot list the songs individually along with the title. Eventually, you may want to file a unique application for each song on the compilation but taking the first and early step of registering the songs provides you the benefits discussed in this article.

In the past, all works to be protected by Copyrights required a Copyright Notice be attached. While the current law no longer requires that the © notice be attached, its advisable to include one to notify the world that somebody owns the rights to the works.

Benefits of a Copyright
Owners of copyrights in music have a variety of exclusive rights available pertaining to the use and performance of the works. These exclusive rights are:

(1) Mechanical Rights: The right to reproduce and distribute the musical composition to the public in a fixed medium including, but not limited to, audiotapes, compact discs and other material objects in which sounds are fixed. Mechanical Rights do not apply to audiovisual works like digital video discs and motion pictures.

(2) Synchronization Rights: The right to use the music in an audiovisual program, including motion pictures, television programs, commercials and videos.

(3) Performance Rights: The right to perform the work publicly.

(4) Print Rights: The right to print sheet music that sets forth the Musical Work.

There are licenses available to copyright owners in music that correspond with each of the exclusive rights in the works. In exchange for the rights and benefits of the Copyright Act, certain of the licenses are automatically available to third parties as long as steps are followed. Other licenses have to be negotiated with the copyright owner on a case by case basis. The licenses available for copyright owners are:

Mechanical License:
a. Compulsory License: Upon the initial public distribution of a Musical Work, the copyright owner consents to allow others to record the work and distribute the new recording as long as notice is given to the copyright owner and a statutory fee is paid for each fixed recording (whether compact disc or tape) manufactured and distributed. The statutory mechanical rate as of 2005 is 8.5 cents (the "Statutory Rate"). In 2006, the rate is set to increase to 9.1 cents.

b. The owner of the copyright may agree to a mechanical license at a rate lower than the Statutory Rate.

Master Use License: 
Where a third party wants to use the actual Sound Recording to create a derivative work (e.g. a Sample) or to include it on a compilation (e.g. a soundtrack) then a license must be acquired from the owner of the copyright in the Sound Recording separate and apart from the Mechanical License in the Musical Composition.

Synchronization License: 
The license to synchronize music with a television show, commercial, motion picture or other medium is negotiated directly with the owner of the copyright. Note, the synchronization license issued for a motion picture includes a performance license while a synchronization license issued for a television show does not include the performance license.

Performance Licenses:
c. Public Performance Licenses: Generally, licenses granted for performance of copyrighted music to the public, whether through the radio, at a concert, or over loudspeakers in a mall or parking lot, are managed through one of three performing rights organizations (ASCAP, BMI or SESAC).

d. Grand Licenses: The owner of the copyright in a Musical Composition grants the license directly for works to be contained in dramatic works, i.e. musicals, ballets, and the like.

e. Digital Performance of a Sound Recording: After 1995, Sound Recordings transmitted via digital means are entitled to royalties for performance. More information is set forth below.

Print License: 
The owner of the copyright in the Musical Composition grants the license to print sheet music.

One of the most recent advances in the royalty scheme for musicians in the United States has been the adoption and implementation of a limited performance royalty for the copyright owner in the sound recording. The royalty for the digital performance of music for sound recordings is administered independently from the public performance licenses ASCAP, BMI and SESAC administer. SoundExchange is the non-profit established to collect and distribute the licenses from digital broadcasters including, but not limited to, satellite radio and webcasters.

Copyrights: Not Just For Music
In addition to music, you can also protect your liner notes, photographs and artwork as "original works of art." Generally, outside of a an employer/employee relationship, Copyrights belong to the person or people who create the works even if the works are being created specifically for the use by a third party. That is, the photographer who shoots photos of the band, the graphic designer who creates the band logo and others who create materials for you are deemed to own the copyright in the works they create.

Therefore, you must get a written release from the people that create the artwork, photographs, marketing materials, and other creative works on behalf of your band that assign the copyright to you.

This contract should contain language that specifically grants you/your band the ownership of all copyright interests in the work the third party has created.

To Be Continued
Copyright is one of the most complicated areas of law for it attempts to protect intangible assets from current and future threats. And as technological advances continue to expand opportunities and challenges, Copyright law becomes even more important to artists than the framers of the Constitution ever imagined.

Next month in part 2 of this series, we'll discuss how to protect your work from unwanted challenges and other Intellectual Property matters related to music including Trademarks and the right of publicity.

Nancy Prager provides legal counsel to a range of clients who have intangible assets that they need to protect, exploit and manage. Her clients include independent musicians, managers and others who have interests in copyrights and other intellectual property related to the music industry. She can be reached at nancy@pragerlaw.us and http://www1.myspace.com/nancyprager.