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Hi folks:

I need a reality check on the delays and customer service at the copyright office.
I'm having a hard time believing that publishers and regular submitters don't have major problems in dealing with delays like I'm experiencing.
I know all about the copyright office's warnings about mail delivery and the effect of the high security on mail deliveries.
I submitted a tape in August of 2002; 12 songs on a PA, requesting registration of the compilation. I plan on submitting a CA form to register each separate song when I get the PA registrtion on the tape.
The Copyright Office cashed my $30 check on December 20 2002.
I emailed them to request status three weeks ago, and called them today... no response to the email, and they aren't even accepting phone calls, because they're too busy.
They are quoteing 16 to 20 weeks for registration; so far it's been 24 weeks, and 6 weeks since they cashed my check.
Questions for you all:
1. Is this typical?
2. Do publisher's put up with this, or is there a "fast track" (probably money)
Any info is appreciated

Thanks
Bob McKillop

Hi Bob.sent my stuff in last july and just got my form back saying it wasnt complete so i have to resubmit again.im not going to bother any more.its a big waste of money and time.

My last 2 copyright forms took about 8 months. If your check was cashed you have nothing to worry about and can submit your songs to contacts seeking songs if you wish. The copyright date will be within a few days of when you sent it. Good luck.

Yes, the date they cash your check is usually the date you are officially "registered" - or within a day or so.

The quickest turnaround I ever got was around 3 months (one time only). 4-6 months is not unusual from both what I've heard and my own experience.

Have patience, it'll happen...probably next week...



------------------
Larry
www.audibleresponse.com

Hi Bob.....

I've been known to wait as long as a year for my registration certificate. I'd say it's "government workers", but I work for the government (LOL)....well, not federal, though.
Once your check is cashed, you can count on your song being protected, but you won't have the reg number until you receive your copy in the mail.

------------------

http://artists2.iuma.com/IUMA/Bands/Sharon_Longworth/

I JUST RECEIVED MY REG # LAST WEEK.
AND I PERSONALY WAS IN WASHINGTON DC. AND WAS AT THE COPYRIGHT OFFICE ON JULY 19 2002.
SO IT TOOK 7 MONTHS. THATS NORMAL.
GOOD LUCK.

Bob,
No immunity for music publishers. We experience the long delays too. Some long, some short (relatively speaking). Most of the songwriters we sign have already registered their songs, so we just do a transfer of ownership. These songs are still protected during the delay. Sometimes we initiate the copyright registration and again we have to wait! It would be nice to have an online system that would help expedite the process.

I would suggest that despite the long delays, it's worth the trouble to get your music registered with the copyright office. This is especially true if you post your music on the Internet or submit demos.

------------------
Dominique H. Preyer
Play Any Key Music (ASCAP)
Durgon Style Music (BMI)
www.playanykey.com

Hi folks:

Thanks very much for the information about your own experiences; at least I know what to expect now!

All the best!
bob McK

I have the same time frame experience for my copyrights. I used to send them certified mail, now I don't bother.

You mentioned doing 12 songs on a PA and then breaking them out on a CA. Aren't CA's up to $100 each now?

Mike

Yep, but recently i've gotten my copyrights back in about 4 months or so; never NOT gotten one back. They just like to take their time!

------------------
Blake's Songs
My Tonos Site

[This message has been edited by blakeh (edited 03-06-2003).]

Hey Bob- Yea definitely 6 months is usually the minium time,but once your check is cashed then you know it will be okay..

Does anyone know what you do if, after getting your song copyrighted, you make changes to it, do you have to re-submit a new registration or a derivative work? How does this work?

-steve-

The best thing you can do to prove you mailed it, is to send it via Certified or Registered mail. That gives you proof of the day you sent it in. It also gives you a way to track it through the mail.

Yes, you can re-register a song that's been re-written. You'd notate it as a derivative of a previous registration.

Jody

About 8 months seems to be the average turnaround time for the stuff I've sent off....

I send 'em registered / return receipt requested because I don't want to have to be wondering, 2 years down the line, "Did they ever GET it?" :-) But it still seems like it takes at least a couple of months to get that green return receipt postcard back!

Brenda

the answer

do not send your material through the post office, they are a gov't agency and they check triple, quadruple--------------

sent ups or fed ex

no sig required

so get a tracking number---to make sure they got it

and 6 weeks to copyright

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http://www.random-noise.com/

[This message has been edited by spiderlady (edited 04-24-2003).]

[This message has been edited by spiderlady (edited 04-24-2003).]

Does anyone know what you do if you copyright a song and then you make changes to that song later on? Do you send in another form in as a Derivative work?

-steve-

In response to Steve's question -- look on the Mentor board; there are 2 threads about this: "Copyright Registration on Rewrites" and "Revised Registration Answer." I was looking for copyright answers yesterday and came across these -- they should help ya. :-)

Brenda

As one who spent much of my career with a patent, trademark and copyright law firm in D.C. and New York let me shed some light on the recurring copyright issues. First, unlike patents and trademarks which must be submitted to the Patent Office for examination prior to a patent or trademark being issued and "valid," copyright is secured by the author by simply placing the international C in a circle on the work along with the author's name and date. The Copyright Office merely issues a registration, which should infringement occur, enebles the copyright owner to sue in Federal court where triple damages may be awarded.
As to the turnaround time in the Copyright Office, normal processing takes up to a year sometimes, but if the author absolutely, positively must have a Registration immediately, the application should be filed along with a request for accelerated process and it will be issued and sent to the author within weeks. Be prepared to pay the high price for the immediate attention, however.
My advice, and it is just that base on years of experience, is to save your money and forget about filing in the Copyright Office until, if ever, infringement occurs. Then is the time to submit an application for copyright registration with accelerated process and deal with the infringer appropriately.

It certainly seems to me that Songwriterman has the right idea. Copyright then wait. It can save you a lot of money ad aggravation!

8 months or so is the usual turnaround time for me - from time I mail it in to the time I get the registration back. And that was true before the anthrax attacks in 2001, and still seems to be true. But once it was only four months. I have noticed it is taking longer to cash the checks. Used to be the same month it was sent in, but now it seems to take a couple of months.

One note: I know we've had this discussion before, but the law and the Copyright Office itself says the date of effective registration is the date the Copyright Office RECEIVES the package with registration, check, and deposit. They actually mark the packages when they come in (and note again, although some people have had different experiences, the post mark DOES NOT determine the effective date of registration). So, it has nothing to do with when the check is cashed. Now, since they are offsiting mail in Washington to the Copyright Office I believe for 5 days (it's taken somewhere for 5 days once it arrives in Washington before it is delivered to the Copyright Office) to protect against bio-terrorism, I'm not sure if the packages are marked before offsiting or after (probably after - when they arrive at the Copyright Office). So, it pays to get your stuff in early, especially published material that needs to meet the three month rule.

[This message has been edited by Liszt Laughing (edited 09-08-2003).]

Hello songwriterman,

Although I don't think you meant it this way, that would be really bad advice for published material, as you lose significate rights if you don't file for registration of those materials within three months of publication. Plus, you are required to make a deposit of published materials.

I think you were referring to registering unpublished material. I do understand it is common for publishers not to do that, I understand true infringement is rare, and I understand what you are saying, but could you explain in more detail how a person could win an infringement case by registering the material after the alleged infringement? You have a song. Person A wrote it in 1998 and fixed it to a tangable medium. They play it out for friends at coffehouses, or, even more common now, puts it on a song site on the internet (which actually to my mind could be considered publishing the material - but that's another debate). Person B hears it and puts in in her memory, head or computer. In 2001, she records a CD with this song on it, registering the copyright as pubished material. In 2002, person A hears person B's single from the CD on the radio, and says - hey - I wrote that song - I think I'll sue. So, they dig up the 1998 demo, send it in with a registration (and would have to be filed as unpublished most likely). Now, being that the only legal recognition of a copyright claim in court is if it is registered, how is person A going to win against B if they have a registration that is newer than the registration date of B? I would like to hear in more detail why person A could possibly expect to win this case.

Thanks.



[This message has been edited by Liszt Laughing (edited 09-09-2003).]

Liszt:

You stated, "Although I don't think you meant it this way, that would be really bad advice for published material, as you lose significant rights if you don't file for registration of those materials within three months of publication."

The three month rule you mention does apply to published works and certain statutory remedies that MAY be unavialable to the plaintiff thereafter in FEDERAL Court only, such as attorney fees that MAY be awarded but frequently aren't, and certain statutory remedies that MAY also be awarded but frequently aren't.

"Could you explain in more detail how a person could win an infringement case by registering the material after the alleged infringement?" was your next comment. your first misconception is the only legal recognition of a copyright claim in court is if it is registered. Not true!

The first person, fortunately that's usually the author, who places a c in a circle, author's name and date takes precedence over ANY party who may come in at a later date and file a copyright registration for that same work "claiming it is theirs," published or not.

Common law creation of one's rights to their creative output with the c in the circle, name and date take priority over Federal Statutory law.

In the situation you allude to, I would sue in Federal court under common law rather than statutory law and add fraud on the Copyright Office to my list of complaints before the court. Party A would prevail and party B may be going to jail.

Post was duplicated. See above.

[This message has been edited by songwriterman (edited 09-08-2003).]

*** This is only my opinion and it is not meant to be legal advice - I am not a lawyer ***

hmmm...OK. Well, I must admit I have not taken into account common law. I have to believe that the office you worked in prosecuted cases using common law, but my research on this leads me to believe the subject of applying common law to a copyright infringement is divided and clouded. And, if you end up having to register the copyright to pursue the case anyway, are you really using common law at that point but instead aren't you deferring to TITLE 17? I saw advice just as you gave in your first post, but besides that I have all sorts of conflicting input from my research.

A) The first one would be I encountered quotes from influencial lawyers and my own belief is that in general federal and state law supersedes common law.
B) I saw reason to believe that common law (all the way back to the Statute of Anne) protection is limited to unpublished works, and common law rights are lost once the work is published. Once a work is published it is covered by whatever statute is in place.
C) I saw conflict between the basis of copyrights, with once school saying the right of copyright only exists BECAUSE of and DEFINED by TITLE 17 (because the right has been given by law), and the other school says the right of copyright is there because it is a natural right - a common law right - that exists whether or not it is specifically defined by statute. Has this truly been reconciled?
D) Yes, I believe that one MAY be able to pursue an avenue of common law infringement, outside of what is specifically laid out in TITLE 17 (M A Y B E!), DEPENDING ON SPECIFICS, and that a court of equity would entertain such as case, but you could only sue for damages, not statutory fines (and I am willing to believe that statutory fines are not often imposed as you said, because I do the math everytime I read or hear about an infringement case, and the fines rarely even come close to the minimum statutory fines).
E) In the case of D above, it would seem to me you would have to have an aweful lot of really good proof that you first wrote the song, versus the de facto proof you have in copyright registration (and the date of effective registration).
F) TITLE 17 and common law are in direct conflict with one another in regards to a song, because TITLE 17 says you no longer have to put the (C) on a song for the song to by copyrighted, but common law appears to say you do. In fact, wouldn't this mean that TITLE 17 is a little broader in what is copyrighted?
G) This part of TITLE 17 really confuses me in light of your statements, because it appears to be saying that common law does not apply anymore in the US if your item falls under TITLE 17. Since a song that is fixed in a tangable medium would, then it would seem to me that the only remedy available for infringement is as I stated, IF THE ITEM IS REGISTERED. Under TITLE 17, YOU CANNOT SUE FOR INFRINGEMENT IF THE ITEM IS NOT REGISTERED (I will cede here that the registration is not the only legal proof of a copyright - I misspoke in my previous post - but it is required to start an infringement action - and it is considered "on it's face" evidence of the validity of the copyright - more later). Here is section 301 of TITLE 17:

301. Preemption with respect to other laws2
(a) On and after January 1, 1978, all legal or equitable rights that are equivalent to any of the exclusive rights within the general scope of copyright as specified by section 106 in works of authorship that are fixed in a tangible medium of expression and come within the subject matter of copyright as specified by sections 102 and 103, whether created before or after that date and whether published or unpublished, are governed exclusively by this title. Thereafter, no person is entitled to any such right or equivalent right in any such work under the common law or statutes of any State.

(b) Nothing in this title annuls or limits any rights or remedies under the common law or statutes of any State with respect to —

(1) subject matter that does not come within the subject matter of copyright as specified by sections 102 and 103, including works of authorship not fixed in any tangible medium of expression; or

(2) any cause of action arising from undertakings commenced before January 1, 1978;

(3) activities violating legal or equitable rights that are not equivalent to any of the exclusive rights within the general scope of copyright as specified by section 106; or

(4) State and local landmarks, historic preservation, zoning, or building codes, relating to architectural works protected under section 102(a)(8).

(c) With respect to sound recordings fixed before February 15, 1972, any rights or remedies under the common law or statutes of any State shall not be annulled or limited by this title until February 15, 2067. The preemptive provisions of subsection (a) shall apply to any such rights and remedies pertaining to any cause of action arising from undertakings commenced on and after February 15, 2067. Notwithstanding the provisions of section 303, no sound recording fixed before February 15, 1972, shall be subject to copyright under this title before, on, or after February 15, 2067.

(d) Nothing in this title annuls or limits any rights or remedies under any other Federal statute.

(e) The scope of Federal preemption under this section is not affected by the adherence of the United States to the Berne Convention or the satisfaction of obligations of the United States thereunder.

(f)(1) On or after the effective date set forth in section 610(a) of the Visual Artists Rights Act of 1990, all legal or equitable rights that are equivalent to any of the rights conferred by section 106A with respect to works of visual art to which the rights conferred by section 106A apply are governed exclusively by section 106A and section 113(d) and the provisions of this title relating to such sections. Thereafter, no person is entitled to any such right or equivalent right in any work of visual art under the common law or statutes of any State.3

(2) Nothing in paragraph (1) annuls or limits any rights or remedies under the common law or statutes of any State with respect to —

(A) any cause of action from undertakings commenced before the effective date set forth in section 610(a) of the Visual Artists Rights Act of 1990;

(B) activities violating legal or equitable rights that are not equivalent to any of the rights conferred by section 106A with respect to works of visual art; or

(C) activities violating legal or equitable rights which extend beyond the life of the author.

And for good measure, here is section 410.c

(c) In any judicial proceedings the certificate of a registration made before or within five years after first publication of the work shall constitute prima facie evidence of the validity of the copyright and of the facts stated in the certificate. The evidentiary weight to be accorded the certificate of a registration made thereafter shall be within the discretion of the court.

Which says to me that if you wait to register until after five years of publication, your registration may not hold the same wieght in court it would have otherwise.

Now, after me having spouted off, I think what you originally said could work, as it obviously has in the law firm you worked in. You could not register, and then if and when infringement occurs, register and sue. But, even common sense would tell me that road would be much harder and much less certain than if I had registered the copyright in a timely fashion - right after publication - or for an unpublished work - shortly after the time of fixation. And, the fact that your advice in your post includes having to register to pursue the case tells me we are not suing/operating under common law, but under TITLE 17. If we are under common law, seems to me you could pursue the case whether or not you register. In fact, I saw a case where someone was trying to sue for infringement for an item covered under TITLE 17 using common law, and the comment from the head of some bar association was that Federal law supersedes common law, therefore a motion for summary dismissal was in order...

I still find it hard to believe that the best advice (and I think even your firm's lawyers would agree) would be to blow off registering, especially a published work, and wait to do so until and if infringement occurs. Plus, you have a duty to deposit a published work with the Library of Congress anyway. I still think the better advice would be to always register a published work, and within three months. And an unpublished work, played in public, if you feel strongly about it, I don't see how you go wrong registering it either, if that is your choice.



[This message has been edited by Liszt Laughing (edited 09-09-2003).]

Liszt:

I'll try to make this brief.

When I stated I would go into Federal court initially, based on the scenerio you provided, under common law, I would be seeking an injunction while party A registered the published work with accelerated process.

After the registration issues, I would then be in a position to rely on the remedies provided under Title 17.

Ultimately, the issue before the court will be who wrote what and when did they write it. Even though after five years from first publication, it MAY be interpreted that registration is "proof" of the validity of all statements made in the registration, the court still focusses its attention on the issue of who wrote what and when did they write it. Both parties must provide convincing proof, and a mere registration is not sufficient.

My advice was initially addressed to the aspiring songwriter and not Sony Music. If a megabuck production is in the works on a soon to be published song, by all means, Sony might as well drop a few more bucks on a copyright registration once the song is released.

But for the aspiring songwriter, money spent on sending in countless copyright registrations could be better spent elsewhere.

The three month rule you mentioned is true, no doubt, but it only applies to certain remedies I mentioned in an earlier post.

The new copyright law, effective January 1, 1977 states: Although registration is not required to create a copyright, the copyright must be registered if the artist wishes to sue for copyright infringement. The new statute provides for registration "at any time during the subsistence of the copyright in any published or unpublished work."

At any time is the key. I, personally, prefer to wait until infringement ACTUALLY occurs before filing a copyright registration in MOST cases.

Alas, nothing is ever certain in any matter before the court, but statute or no, the duty of the court is to get to the truth of the matter and determine who, in fact, has superior rights over another. That's how the system is suppose to work, at least.

The major concern, aside from obvious blatant copying, continues to be whether one writer is "inspired" by another or takes another's music as their own, consciously or otherwise. The difference between one song and another can be miniscule and still be different in the eyes of the court.

The more songs that are written, the harder it becomes to make the distinction between a new song and all that came before it or those that come thereafter, so the Copyright office defers that impossible task to the courts, as usual.

Bet you're glad I didn't go into all the misinformation associated with trademarks while I was on the subject of intellectual property.



[This message has been edited by songwriterman (edited 09-09-2003).]

*** the following is only my opinion and should not be taken as legal advice. I am not a lawyer.... ***

Songwriterman,

You have enlightened me with some new thinking on the copyright subject and with the apparent angles taken in the real world with regards to copyright and the court. For that I thank you.

But, I do still have to argue a couple of points. I would argue that just like learning how to do anything else, an aspiring songwriter should learn and strictly follow all the "rules". After that, if they want to play with breaking them, then fine. The "rules" as read strictly from copyright law and as taught to most songwriters, is to immediately register a published work, within three months of publication. Also, another reason for an aspiring songwriter to strictly follow the rules would be that most are not going to have the benefit of legal counsel or the benefit of experience such as yours, where they may be able to judge correctly when to break the rules or not.

There is the issue of good advice and best advice. Your advice may be good, but following the "rules" is the best advice. And I still cannot believe a copyright lawyer would not agree with that.

The second thing I would argue is this: Does or does not timely registration within 5 years of publication as prescribed by law help your chances of winning a case? Yes or No? I say yes, because the registration filed within 5 years is automatically given wieght that the rest of the evidence must overcome. After 5 years it is up to the court what wieght to give the registration.

Definition of prima facie from LAW.COM:

"Latin for "at first look," or "on its face," referring to a lawsuit or criminal prosecution in which the evidence before trial is sufficient to prove the case unless there is substantial contradictory evidence presented at trial...

Also, although I believe you when you say that statutory fines and attorney's fees that are possible only with registration of a published work within 3 months of publication are often not awarded, the RIAA in it's internet file sharing suits are asking for just those things. And, they couldn't if the registrations had not been filed within 3 months of publication. In fact, one could make an arguement that the RIAA's lawsuits would not be possible if they did not have statutory fines to rely on(and those would not be possible if they had not filed registrations within 3 months), because it would be too hard to prove and not nearly as cost effective to sue for damages only.

And...because you are REQUIRED to make a deposit with the Library of Congress within 3 months of any published item related to music, it would make sense at the time (although it is not required) to register something at that time - the SR or PA, whatever fits the particular case...

Everyone has to make there own choices about this registration stuff...


[This message has been edited by Liszt Laughing (edited 09-09-2003).]

Liszt:

Your good advice vs. best advice statement pretty much sums up your belief that statutory law is somehow etched in stone, and that not following it to the letter is somehow not playing by the rules.

Truth is, the rule of law, statutory or otherwise, must be applied rationally to each case. If a songwriter can afford to follow the "letter of the law" and immediately file a copyright registration for each and every song, if and when published, that will, no doubt, provide the greatest statutory protection from infringement. Buying flight insurance before every flight may also be considered by some as "best" advice if you absolutely, positively, want to cover all your bases.

Not following the procedures of Title 17 to the letter, however, will not ever change who wrote the song and when they wrote it, despite whomever gets a registration for the song.

You asked, "Does or does not timely registration within 5 years of publication as prescribed by law help your chances of winning a case? Yes or No? I say yes, because the registration filed within 5 years is automatically given weight that the rest of the evidence must overcome."

In answer to your question, you must be willing to acknowledge the obvious. The registration only presumes that what has been stated in the application is true. So if someone can "prove" to the court that they actually wrote the song prior to the date stated by the author in the application, the prima facie evidence then works against the registrant.

Your arguments are not new and they do have merit, but this is not a matter of good advice vs. great advice, just two different approaches.

I would simply ask the readers of this thread to ask themselves a few simple questions and then draw their own conclusions.

How many songs have you had published?

How many of those songs have you registered with the copyright office within three months of publication?

How much money have you spent filing copyright applications and sending in recorded songs to the copyright office?

How many of your copyrighted and registered songs have been infringed?

It's your money. Spend it as you will.

You guys seem to have a good knowledge of the copyright law,so here is a question that I have ask before but did not receive a satisfactory answer to.

If you register a number of songs with the Copyright office as a collection of unpublished songs,is it necessary to again register one of this collection if you get it published and recorded at a later date? The fact that it is already registered under the collection gives proof that you had it written at or before that date.So if any infringment takes place,would that not be all the proof you would need to win the case and get all that you are entitled to?

ECA 333:

If you want to go strictly be the book, as Liszt suggests is "playing by the rules," you should file a new copyright application for the one published song, along with the CD or on whatever medium it was first published within three months for full protection or within five years at the latest. That will provide you with the maximun statutory infringement insurance under Title 17 of the U.S. Code.

If money is tight, however, and you can live with a little less "infringement insurance," I would suggest you let things stand, as is, and should anybody be so foolish as to infringe your song in the future, file for a new registration on the published song AFTER infringement has actually occurred.

It's your money. Spend it as you will.

[This message has been edited by songwriterman (edited 09-10-2003).]

*** The following is only my opinion - it is not meant to be legal advice - I am not a lawyer ***

Man, I've done some more research on this, and again, while I am glad we had this conversation, I learned some things, and the views expressed should be benefit everyone's learning, I just have to emphatically say I still think it a bad idea to not "follow the rules" by not registering a PUBLISHED work within three months of publication. Here's why:

A) Not paying $30 bucks to register because "money is tight" is short sighted: You may feel it no big deal now, but 10 years from now your song may be worth something (yes - I know - the odds are against that for us indies..) and you may wish you had spent the $30 bucks. I can almost flat out guarentee that no professional publisher in the US blows off immediate registration, and if they don't an indie artist shouldn't either.
B) The common law issue seems not so sure a bet: TITLE 17 as amended in 1976 pretty much wipes out common law and state law in the US in regard to copyright. TITLE 17 expressly prempts common law and state law (I posted the specific section in an earlier post), except for narrow bands of common law and state law allowed to fall outside of TITLE 17 *BY* TITLE 17's provisions. I'm not sure what angle of common law SONGWRITERMAN (I'd be interested in hearing this - because I believe it can be done because his time in a law firm was not spent for nothing) is taking in invoking his injunction in our discussion, but the only one I can think is the common law right in a song that is "not fixed". In other words, if I write a song, and play it for others, but I don't record it, I have a common law right to that song. So, if that song is recorded and published by someone else, my common law right to that has been infringed. So I file for an injuction in court to stop the infringement, then I register the copyright (moving it out of common law domain) for TITLE 17 protections/remedies. But see, I'm still confused on one point. Common law rights only extend to unpublished works. So, if I had published my song without registering, what common law theory can I use to file the injunction of SONGWRITERMAN's example/advice? Also, I saw talk in my research of common law copyrights being property that can fall under property abandonment theories of law. Meaning if nothing is done with it for awhile, it might be considered abandoned.
C) The statutory fines and attorney's fees provided by registering within 3 months of publication ARE valuable: I've seen the idea I first advanced in a previous post pop up in my research, and that would be the fact that if you don't have statutory fines to rely on, you may find yourself in the position of owning the copyright, but practically speaking not being able to afford to do anything about an infringement because actual damages are too small or too hard to prove. And the internet makes this all the more true. First of all, the idea that infringement is rare has fallen by the wayside with the internet. While someone actually stealing your song and calling it thier own may still be rare, file sharing of songs now makes infringement of PA and SR rights commonplace. And, I'll give you a practical example. Suppose some person loves your song and puts it on their web site (but is not file sharing it). You have reasons not to like this. Let's say you registered the song but a year after publication. So no stat fines or automatic attorney fees. You ask them to remove the song. They say F-off. Now, you want to hire an attorney to sue for infringement. Since there are no actual damages, how do you propose to pay for this suit? I know of arguements like this going on right now with visual arts. Now - take it further - someone puts your song on a file share site. How do you prove actual damages, especially since TITLE 17 says the IP does not have to track in any way your bandwidth usage?

Just my opinion....



[This message has been edited by Liszt Laughing (edited 09-11-2003).]

Thank you both but I'm still confused.

Liszt:

Laugh with me on this one: Too much knowledge can be dangerous. Are you laughing yet?

If a songwriter ONLY has one song then 30 bucks to file a copyright registration is no big deal. But what songwriter has written ONLY one song? And what songwriter hasn't made countless revisions to each of them?

30 bucks times who knows how many songs and revisions, even after first publication, adds up fast.

Every new attorneys first nightmare is when they learn that any given statute or rule of law considered "holy" in law school is open to continual debate in the courtroom. It is always what actually results from litigation that is the law, not what SHOULD happen.

If this were a discussion about patents and trademarks, I could emphatically say do this and do that because the law is better defined and more consistantly adhered to by the courts.

Copyrights are another matter. Unlike patents and trademarks where the applicant MUST file in each and every country where protection is sought, copyrights are international in scope. The c in a circle, name and date confers the same rights to the author in virtually evey nation of the world. It says I wrote this song, it is copyrighted EVERYWHERE, and I, alone, own it, so don't copy it!

So why have a Title 17? Good question that still is argued in court daily. The purpose is apparently to require that all suits in the U.S. seeking REMEDIES for copyright infringement be brought before the FEDERAL court and the ticket to take advantage of those statutory remedies is a U.S. Copyright registration.

Injunctions are a powerful tool in the law that do not require statutory support. Whether you have a registration or not, an injunction may be invoked to STOP one party from adversely interfering with another until the matter in its entirety can be brought before the court.

By the time the case is actually heard by the court, the plaintiff has had ample time to REGISTER his copyright and thus take advantage of whatever statutory provisions mentioned in Title 17 are available to him.

Some other realities one needs to consider:

1. Since Sony is not likely going to infringe your song, does the defendant have sufficient ASSETS to make the suit worthwhile? The answer is usually NO. Even companies and individuals who do have money, and then get a major monetary judgment against them, simply file bankruptcy. So even if you file within three months after first publication, which provides attorney's fees as a bonus for doing so, who pays the attorney's fees when the defendant has no money or files bankruptcy? YOU DO!

2. Since there really is not a whole lot of difference between one song and another, aside from a downright COPY of your song, proving WILLFUL infringement is an uphill battle. It is amazing how many people "copy" another's work without consciously knowing it, and it makes an effective defense every time.

That's enough for today. I wish copyright law was cut and dried, but it's not.

Liszt makes good reason in technical terms, and assumes that because it's there in writing, the court proceedings should go accordingly. SWman says that court is court and EVERYTHING in court is subject to interpretation and whims of who is hearing them, as well as his last GREAT point of winning nothing because your opponent goes belly up.

Anyone who has been divorced and gone through the bull%&^ in court knows that NOTHING is sacred, even if it's in writing! People fight and fight over stuff out of principle and usually spend more than they are fighting about. the outcome is usually gray.I remember one of those court TV shows where the judge says "I know I made a good ruling when NOBODY is happy".

SWman says the odds that Michael Jackson (or someone who has ALOT of money) will be the one to steal your song, then you suing them and winning even if you have the proper copywrite, are so slim your money would/may be better off spent elsewhere.

Given MY court experience in other fields, and reading this thread about how tenuous copywrite law is, I believe he makes sense.

Did I make this into English and a sensible interpretation?

Herbie

Herbie:

Your message came through loud and clear.

In summation, Attorneys ALWAYS win, for Plaintiffs, nothing is certain.

OK, Liszt, say you have an infringement case, even a legit one. Does your attorney take the case on a contingency or do you have to give him a retainer in which case you have to pay him either way? If the latter is true, you could get sucked dry and still lose, pretty easily. Maybe you'll think if you have a proper copyright, the attorney will take the case on contingency easier. At least then he'll have a major incentive and not waste his and your time. When attorneys are paid by the hour, you NEVER know if half their bullshit is warranted, trust me

Herbie

Herbie:

Allow me the privilege to answer your question, since I'm sure Liszt is probably not well versed on contingency representation.

Intellectual property attorneys rarely, IF EVER, accept clients on contingency.

Contingency cases are pretty much the domain of the ambulance chasers who know in advance that there is a pot of gold at the end of the rainbow. If these "tort" attorneys settle with the insurance companies in advance of litigation, which is usually the case, they make a killing.

If they proceed to trial, they risk getting nothing, which seldom happens, but often that risk leads to making millions thanks to sympathetic jurors.

hope this helped.

Phillip

*** this is only my opinion - this should not be taken as legal advice - I am not a lawyer ***

ECA333 - Songwriterman answered your question correctly in his post after your question. If you want to "go by the book", you should register an unpublished song again once it is published, within three months of publication, to gain maximum protection/remedy for infringement of the copyright under US law (TITLE 17). Note: in the US, you are required by law to make a deposit to the Library Of Congress of two copies of any published item, within 3 months of publication - but this does not have to include registration or the registration fee.

If you want to rely on songwriterman's practical experience in the application of TITLE 17 and copyright law in general, you can take his advice in the 2nd paragraph of his post. The only thing I would caution is you should understand the ramifications of both doing it "by the book" and doing it his way before you choose. My whole point really has been I don't think ALL the ramifications of your choice would truly become apparent until and if an infringement occurred and you wished to do something about it. And at that point, you cannot undo some of your choices. So, the conservative choice to me would be to go "by the book", for maximum effect, whether or not that maximum effect will ultimately translate into anything meaningful in court. At least you had it as a possible weapon.

One point to make about songwriterman's last post. It would seem to me that if IP attorneys rarely take cases on contingency, that would be all the more reason the little guy would want to have statutory and attorney's fees on their side by registering within three months. Also, I am talking about registering published material, I am not advocating everybody spend $30 bucks to register every unpublished song they have, although it they WANT to, that is their decision to make.

Look, we are both right. His practical experience is something to learn from, and if you want, you might learn from my blathering "book" knowledge. I think there is a better and a best choice here, but really, the only reason I posted in this thread was to counterbalance the statements made.



[This message has been edited by Liszt Laughing (edited 09-11-2003).]

Now that the readers of this thread have heard both sides of the copyright debate, perhaps you now have a better understanding of how copyrights are acquired, how statutory remedies are secured under Title 17 and some of the realities of how it plays out in the real world.

Liszt has done his research and knows how Title 17 reads, by the book, and I hope I have not given the impression that copyright registration of published works is just one more unnecessary expense.

There is a time and place for everything, including copyright registration. At 30 bucks a pop, it is not cheap, and remember that you should only be concerned about published works.

Aspiring songwriters are generally not music publishers or record companies. Instead, they are dreamers who want their music to be heard and hopefully get some rotalty revenue for their efforts. That's where the music publishers, et al, become the songwriter's avenue to success. Success is seldom achieved without them.

Are the powers that be in the music business going to just publish your music with no strings attached? No way! The songwriter, will be required to "assign" his/her rights over to the publisher, etc. So why not let the publisher foot the bill for the copyright registration? Most publishers, etc, do just that.

So why put the cart before the horse and get all confused about what needs a copyright registration and what does not? Let the attorneys for the publishers, et al, worry about that.

Phillip

Songwriterman and Liszt both state their respective cases well. Since I'm one of the countless new songwriters in this group who will most likely never be published for the mass market, unless my lottery number comes up, that is, I'll let the publisher handle the copyright matters.

In the mean time, I'll spend the money I might have spent on filing copyright registrations on increasing my chances in the music business lottery, assuming that's possible.

There always seems to be something on the horizon to make access to success in this business a smoother ride, but after all is said and done, the dismal success rate in the business remains constant. Hmm... There must be a message there.

Thanks again Songwriterman and Liszt

I want to correct something we said (and remember I am not a lawyer - so you should check these things out yourself and get counsel if you have questions). Apparently you do not have to re-register a registered unpublished work when it is published.

This is from Circular 1, found here:
http://www.copyright.gov/circs/circ1.html#cr





[This message has been edited by Liszt Laughing (edited 09-25-2003).]

*** this is only my opinion, I am not a lawyer ***

So, to more correctly frame things, for an unpublished work, once it is registered, it does not have to be re-registered upon publication. Statutory damages and attorney's fees are available on an infringement that occurs after the effective date of registration. An infringement occurring before the effective date of registration only has actual damages available.

For a published work that was not previously registered as unpublished, statutory damages and attorney's fees are available for an infringement occuring after the effective date of registration. For the period after publication and before the effective date of registration, statutory damages and attorney's fees are only available if the effective date of registration is within 3 months of publication, for an infringement occuring after publication and before registration.