Q & A
Each month, MusicBizAdvice.com answers your questions about the music industry.
Posted a Song on the
Internet without Registering the Copyright: Your Rights, and How to Fix it
Q.
I wrote a song, and I posted it on the internet, so lots of people have
downloaded it. I'm afraid of someone stealing my song. What happens if they
get or got it licensed before me? What do I do? Are there ways to prove it’s
my song? My whole family and all my friends know it's my song. Can they be
witnesses? And what exactly is a "published" work? Thanks!—Anonymous
[Editor’s note: Although this email contained the author’s name, we’ve
signed it “Anonymous” to protect the author’s business privacy.]
A. First, quietly get the song off the Internet, register the
copyright immediately, and don’t put any songs on the Internet or play them
for anyone until they’re properly registered with the US Copyright Office.
(You can save money by registering several as a collection.)
Now for the legal stuff, keeping in mind that I’m not an attorney and that
you should always consult an intellectual property rights attorney…
If someone steals your song and you haven’t registered it with the US
Copyright office, you have no legal recourse. No court will hear an
infringement case if the copyright wasn’t properly registered through the US
Copyright office, so if you haven’t, you cannot sue, even with potential
witnesses who “know” it’s your song. Without that proper registration of
your copyright, all the proof in the world can’t help you.
Essentially, the Court’s position is that if you don’t care enough about the
song to spend $30 to fill out the proper form to prevent possible
infringement from the beginning, it’s not worth taxpayer time and money to
hear the case.
In business law, “the truth” is proven mainly through a paper trail, and in
copyright infringement cases, the Court demands that the paper trail start
with a properly registered copyright.
If someone does steal a song of yours that hasn’t been registered with the
US Copyright Office, you might be able to settle the matter privately out of
court with the help of a mediator. But it’s a longshot and is unlikely to
happen with songwriters who don’t already have a proven track record of
earning income with their songs.
If you did a Poor Man’s Copyright before publishing the song to the Internet
(mailed the song to yourself and didn’t open the envelope), the Poor Man’s
Copyright might be used out of court as one part of an extensive paper
trail, but on its own it doesn’t carry much weight. A Poor Man’s Copyright
doesn’t give you any rights to sue. Only a registration with the US
Copyright Office does that.
Additional information can be found
here, in Protecting
Your Music ‘til Payday.
Regarding “published works”…
In US Copyright Office English, “published” means shown or performed to the
public in any form: live performance, a radio show, the Internet, emailing
or text messaging it to a group of friends, playing a song at a party,
shouting it from the rooftop to a crowd below, etc. . In the broadest US
Copyright terms, since you’ve uploaded the song to the Internet, your song
is a published work.
Remember it this way: If the PUBLIC has heard it, it’s PUBLIshed. The
“public,” in my own opinion, is anyone other than you and your writing
partner. Many songwriters balk at this, but I’ve known plenty of people who
were ripped off by people previously considered to be good friends. Friends
can wait to hear it ‘til the copyright registration is safely in the
mail.
When you register the copyrights for songs that have been publicly
performed, even though the issue of “published” or “unpublished may seem
clear to you, sometimes the Copyright Office phones for clarification and
asks you to change the box on the form. This has happened to me a couple of
times in the course of registering neglected copyrights for new management
clients over the years, and although each case was similar, I was asked to
do the forms differently each time. When filling out a registration form for
anything that’s been publicly performed, save yourself the delay in
receiving your registration certificates by calling the copyright office and
asking the specialist which box to check for your particular situation.
You could lie and check the “unpublished” box, but perjury is no way to
begin a songwriting career. By calling to ask, your copyright forms are
exactly the way the Copyright Office wants them, you learn something in the
process, and everybody’s happy.
(Note for novices who may be reading this: the term “published” in US
Copyright Office English is different from the kind of music publishing that
involves music licensing, music publishers, Nashville, etc. Same word,
completely different thing.)
Good luck!
Randi Reed
Editor-in-Chief / Founder
MusicBizAdvice.com
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Answers in the MBADC Q&A are to be taken as general advice only and are not intended
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