Just Plain Copyright Basics
Entertainment Attorney and Just Plain Folks Mentor Ben McLane covers some of
the basics of copyright for our members new to the business.
Copyright Basics
by B.C. McLane, Esq.
Many songwriters are concerned that someone may steal their song and make a
profit. If such an act occurred, it would be an instance of "copyright infringement"
and the original writer would be entitled to relief. This article will explain
how a copyright is infringed upon and what a writer can do to protect his or
her works.
Under the 1976 Copyright Act, the copyright owner (i.e., the creator of the song),
has certain exclusive rights: to reproduce, to distribute and to perform the
work. Any or all of these exclusive rights may be transferred to third parties
through an "assignment" or "exclusive license." Each
separate owner of an exclusive right can sue for copyright infringement.
The most common type of copyright infringement occurs where a commercially
available song is, or seems to be, very similar to another preexisting song. In
order to sue for infringement here, the original writer must show three things:
(1) ownership of the song infringed upon, (2) the infringer had
"access" to the original song, and (3) "substantial
similarity" between the two works. Infringement can also occur when
someone uses a song without permission/license and when a record is
"pirated" or "bootlegged."
Under the Copyright Act, the copyright owner is entitled to several remedies.
Along with the damages suffered, the writer can obtain attorney's fees and
court costs. In some instances, the writer can obtain profits of the infringer
and an injunction. However, in order to take advantage of the full remedies
under the Copyright Act, the song must be registered with the US Copyright
Office. Moreover, it is important to not delay in bringing the infringement
suit once the infringement is discovered. Otherwise, the suit might be barred
by what is known as the "statute of limitations." The party sued for
infringement may raise certain defenses which are exceptions to copyright
infringement. For instance, the doctrine of "fair use" allows a work
to be copied if there is no "profit" motive (e.g., for education,
research, news). Another legitimate defense is that the new work is a parody of
the original work.
Although copyright registration is not mandatory under the Copyright Act of
1976, songwriters are encouraged to officially register their works because if
an infringement situation arises, it will be easier to recover damages.
B.C. McLane is an entertainment attorney located at 20501 Ventura Blvd., #217,
Woodland Hills, CA 91364. (818) 587-6801. bcmclane@aol.com. www.benmclane.com.
