Copyrights - Getting Started in the Music Business
What are copyrights?
Copyrights are protection under the federal Copyright Act for "original works of authorship," such as literary, musical, graphic and technical creations that are "fixed in a tangible medium of expression." Copyright Law recognizes that your creative work is your personal property, and like other kinds of property, musical works are protected against theft and unauthorized use.
There are two types of copyrights for musical works. The first right is in the underlying composition of the song, such as would appear on sheet music. The second copyright is in the actual version of the song that is recorded on tape. If your song is "covered" by another group, you can still own the rights to the song itself and your recorded version(s), while the cover group can register a copyright for their recording of your song.
When you own the copyright to a song, you get the exclusive right to use the song in specific ways and to license others to use it. These "exclusive rights," as provided by the Copyright Act, include the right to:
- Reproduce copies of the songs in mp3s, CDs, and other audio recordings
- Sell and distribute copies of the songs
- Publicly perform the songs - as in live performances, radio broadcasts, jukeboxes and digital audio transmissions
- Create "derivative works," or adaptations, based on a copyrighted song, such as sampling the song or writing a parody on the lyrics
For any work created since 1978, the duration of a copyright is the life of the author, plus 70 years. For co-authored songs, the copyright lasts until 70 years after the death of the last surviving author. When the copyright period ends, the songs enters the "public domain," which means anyone may use the song for free.
When two or more people co-write a song, they are "joint owners" of a "joint work." Unless you agree otherwise, each joint owner is an owner of the entire copyright in the song. All joint owners have full claim to the "exclusive rights" that come with the copyright, as listed in What are Copyrights?, so long as they share any proceeds with the other owners. For instance, one joint owner can record his own version of the song and sell it without asking the other owner's permission, as long as he splits the royalties with the other joint owner.
You do not have to register a copyright with the Library of Congress to acquire copyright protection for your song. Once an author fixes his music in some physical form, a copyright is created instantly so that the songs are legally protected. For example, when you put your songs on tape for the first time, you acquire copyright protection in both the songs and in that recorded performance of the songs. Similarly, when you write the songs down on paper, you acquire copyrights in the compositions.
If someone tries to copy one of your songs, however, a tape alone won't prove your copyright ownership. One cheap way to protect your copyright is to mail yourself a copy of the tape, including a lyric sheet, and do not open it. The sealed, dated package is proof of your authorship and the date when you created the work. This method is called the "poor man's copyright," and it provides some evidence of your ownership, but no legal guarantee. Use this method only in the time between the creation of the work and mailing your application to the Library of Congress.
Registering your copyright with the Library of Congress is a legal formality, but it is the only way to ensure the reliability of your copyright. The registered copyright establishes a public record of your ownership, which is conclusive evidence in court if anyone ever infringes your copyright. You cannot file an infringement lawsuit until you have registered your copyrights, so do it early on. Also, if you register your copyrights within three months of the time that you first publish your songs, you will be eligible for further legal advantages in the event of a lawsuit, including reimbursement of your attorney's fees and special damages.
The Library of Congress handles all copyright applications through the Copyright Office. Beginning in mid-2008, the most current form for song registration is online Form CO, although the old forms for song registration - Form PA (Performing Arts) and Form SR (Sound Recording) - may still be requested and used.
Advantages of filing a copyright registration using online Form CO include:
- Lower filing fee of $55 for a basic claim;
- Fastest processing time;
- Online status tracking;
- secure payment by credit or debit card, electronic check, or Copyright Office deposit account;
- the ability to upload recordings directly into eCO as electronic files.
The two alternate methods to the online Form CO application for song registration include:
1) Registration with Fill-In Form CO
The next best option for registering basic claims is the new fill-in Form CO, which replaces Forms PA and SR. Using 2-D barcode scanning technology, the Office can process these forms much faster and more efficiently than paper forms completed manually. Simply complete Form CO on your personal computer, print it out, and mail it along with a check or money order and your deposit. The fee for a basic registration on Form CO is $55.
2) Registration with Paper Forms
Paper versions of Form PA (performing arts works, including motion pictures); Form SR (sound recordings) are still available. The fee for a basic registration using one of these forms is $85 payable by check or money order. Form CON (continuation sheet for applications) is also still available in paper. These paper forms are not accessible on the Copyright Office website; however, staff will send them to you by postal mail upon request.
Remember that online registration through eCO and fill-in Form CO (see above) can be used for the categories of works applicable to Forms PA and SR. Form eCO was created in 2008 to replace and consolidate forms PA and SR. For personal assistance call (202) 707-3000 between 8 a.m. and 4 p.m. CST.
Anyone claiming copyright to a work may use the copyright symbols, whether or not you register that copyright. In music, the © symbol is used for the copyrights in the songs, while (p) is used for the sound recording copyrights (to prevent unauthorized duplication.) The symbols are not required, but use them to let the public know that the material belongs to you and is protected by your copyright. You can put the symbols on the label or the outer packaging, and they may be printed or handwritten.
Many bands will use both symbols to reflect that they are claiming rights to the original compositions and all of the recordings on a record. The notice must include the symbol(s), the year of publication and the name of the copyright owner. Here is an example:
©and (p) 1999 XXXXX Records.
Whenever someone exercises one of the exclusive rights in a song without a license from the copyright owner, he or she has committed copyright infringement. The infringement can be a complete rip-off of another artists' song or it could be a more minor incident of misuse, such as sampling part of a bass track without permission. Bootlegged CDs are an example of copyright infringement because only the copyright owner can make copies of a copyrighted work. If a bootlegger sells his burned copies, he has also infringed on the exclusive right of distribution. In any case, the costs for infringement are high- including statutory fines, court-ordered judgments and attorneys' fees. You can avoid committing infringement by making sure that you have the proper licensing to cover or sample any song before you use it.
If you think someone has infringed on one of your songs, you can sue for copyright infringement if you have registered your copyright, or as soon as you do so. To win a claim of copyright infringement, you must prove that the alleged copier could reasonably have had access to your material before he made his own song, and that the two pieces of work are "substantially similar" enough that the average listener would suspect copying. The infringing party will then try to prove that he created the song independently, and/or that the similarity is either a coincidence or too inconsequential to matter. You do not have to prove that the alleged infringer intended to copy your song. Anyone can claim that he did not mean to copy another person's work, so the law holds a plagiarizer responsible for infringement even if he didn't copy the song on purpose.
A classic example of such a case is the lawsuit against ex-Beatle George Harrison by the copyright owner of the old Chiffons hit, "He's So Fine." Harrison and Billy Preston were jamming backstage in the '70s when they created the song, "My Sweet Lord." They claimed that they did not mean to copy the tune of "He's So Fine"; they just hummed the riff and improvised on it without realizing that it resembled another song. Both parties agreed that the two melodies were substantially similar, and Harrison could reasonably have had access to the Chiffons hit in 1963, when it was #1 in England. Harrison's argument that he didn't do it on purpose did not carry any legal weight, so he had to pay a large chunk of his royalties from "My Sweet Lord" (which were in the millions of dollars) to the copyright owners of "He's So Fine."
To "cover" a song, you must obtain a "mechanical license" from the copyright owner. A mechanical license is a clearance to reproduce and distribute copies of the song, which are among the exclusive rights that come with copyright ownership. You may contact the copyright owner directly and negotiate a mechanical license. Even without the permission of the copyright owner, you can obtain a "compulsory mechanical license" under the Copyright Act.
The copyright law provides that every copyright owner has the right to "first use" of his song; after that, anyone may obtain a license to use the song. "First use" is satisfied when the song is first recorded, copied and distributed to the public. This way, the copyright owner gets the chance to release the first public version of his song. After that, the copyright owner must issue a license to anyone who wants to use the song, either directly or through a "compulsory license." The person using the song pays a set fee to the copyright owner. The mechanical royalty rate is set by the Compulsory License Provision found in Section 115 of the U.S. Copyright Act; the statutory mechanical rate is 9.10 Cents for songs 5 minutes or less, or 1.75 Cents per minute or fraction thereof per unit sold - whichever is greater.
The statutory mechanical royalty rate for physical recordings (such as CDs) and permanent digital downloads is:
9.10 Cents per copy for songs 5 minutes or less
1.75 Cents per minute or fraction thereof, per copy for songs over 5 minutes.
5:01 to 6:00 = $.105 (6 x $.0175 = $.105)
6:01 to 7:00 = $.1225 (7 x $.0175 = $.1225)
7:01 to 8:00 = $.14 (8 x $.0175 = $.14)
Because the compulsory license procedure is complicated, copyright owners generally issue the licenses directly to the users and let the Harry Fox Agency in New York negotiate the fees and collect the money. The statute is still important because the statutory royalty rate sets the industry standard.
Yes, you must obtain a "clearance," or copyright license, for every sample that you use in your recordings. Unlike musical compositions, there is no compulsory license that lets you use any recorded performance. You must get a license from the copyright owner directly and negotiate a fee. Also, because both the composition and the sound recording are used in a sample track, you must obtain two clearances: one from the owner of the copyright in the song, and one from the owner of the rights to the sound recording. This may or may not be the same person or company.
The clearance protects you from copyright infringement and from being hit with a lawsuit from your record label. Record contacts have standard "warranty clauses" where you promise to produce material that does not infringe any copyrights. Along with your indemnity clause, your warranty clause renders you legally and financially responsible for claims of copyright infringement made against your song in question. The warranty clause is an artist’s promise of non-infringement, and the indemnity clause shifts the financial burden of any later infringement litigation onto the artist.This is because the record company makes copies of the song and distributes them for sale, which are exclusive rights belonging to the copyright owner. When the company sells your records with unauthorized material, it is infringing on the author's copyrights and they will probably be sued. The company will then turnaround and sue you for breaching your warranty clause.
Clear your use of any sample before you spend a lot of money on recording so that you don't spend studio time on a song that you cannot sell. Follow the instructions listed in How Do I Obtain a License to Use Copyrighted Music? in order to find the copyright owners and get a clearance, or contact one of the agencies that specialize in music licensing and clearances, called "clearance houses." The sampling fees vary, depending on how much of a song you want to use and how important the song or performer is, so a professional may be able to negotiate a better fee for you. Some agencies that do clearance work are listed below, and the appendix includes industry websites that list more of these companies.
Harry Fox Agency
No; you must always obtain a license in order to use any sampled material for a commercial purpose. Many musicians believe that they may sample 4, 5 or 8 notes or bars of music without infringing any copyrights, but this is a myth. The length of a particular audio sample is not relevant in determining whether or not you must seek a license for its commercial use. Also, whether or not the sampled audio is easily recognizable does not matter; if your source audio was taken from another artist and you did not obtain a license, you are infringing that artist’s copyright. Contrary to what many believe, samples are not billed on a per-second basis. Instead, the overall impact of the sample along with all relevant commercial factors (such as your purpose in using the sample), are evaluated on a case-by-case basis in order to determine damages in the event of an infringement claim.
Probably not. "Fair use" allows copyrighted material to be used in situations where a minimum of the material is used in a reasonable way that is not harmful to the owner's rights. Fair Use protection is most often and most easily extended to (1) criticism and commentary; (2) parody and satire; (3) scholarship and research; (4) news and reporting; and (5) teaching. If your usage does not clearly come within any of these 5 protected classes, you will likely need to seek a license for the sample.
If you choose to sample without a license and the original artist asserts a claim against you, it is impossible to predict how a court would rule on the case. Courts consider each infringement lawsuit on a separate basis, and unlicensed commercial sampling is essentially gambling on the outcome of potential litigation. In the event a court must determine whether or not an infringement is protected under fair use, it considers the following 4 factors:
• The purpose and nature of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
• The nature of the copyrighted work;
• The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
• The effect of the use upon the potential market for or value of the copyrighted work.
A court may still find infringement under these factors, even if your work is unpublished. The only way to be sure that you are not infringing any copyrights is to obtain a license for all sampled material before you use it for any commercial purposes.
I want to use a sample, but the copyright holder refuses to clear the sample or else wants too much money; do I have any other options?
Yes; you could contract a sample recreation company to work around the problem by re-recording the sample you want to use. These companies are able to re-create samples to such a high standard that the original version and the new version are practically indistinguishable. Note that you must still obtain permission from the publisher before you use the re-created sample. This method simplifies the process because you only have to deal with one publisher, and there is no chance of stalemate as the result of competing interests at a record label. For instance; the Wu-Tang Clan re-recorded the Beatles’ track, “While My Guitar Gently Weeps” for use on their track, “The Heart Gently Weeps.” The copyright owners for the original Beatles track have a strict no-sampling policy. Although the Wu-Tang Clan were not able to get the rights to the original master recording from the Beatles’ record labels, they were still able to use a re-recorded copy. Note that they were required to pay out 100% of songwriting royalties and publishing royalties on the sample, however.
A re-created sample essentially amounts to a “cover,” and you will need to approach the publishing company associated with the sample in order to get approval for its use. 99.9% of the time, publishing companies are more than willing to allow their repertory to be covered; this is how they turn a profit. In the rare case that obtaining permission from the publisher is unlikely, many sample re-creation companies are able to alter their re-recorded tracks such that they embody the spirit of the original, while technically becoming a new tune.
Sample-recreation is considerably faster and cheaper than the sample-clearance route, and you may be able to leverage a re-creation quote against a copyright owner in a licensing negotiation for the original sample. By presenting them with a low re-creation quote, they may decide to give you a better deal on the original in order to avoid losing all potential profits on your usage. The usage of re-recorded samples is on the rise in light of the skyrocketing costs associated with traditional sample clearances, and record companies are being forced to bargain against this. Here are a few sample re-recording companies to get you started:
Another alternative is to seek out sample-friendly copyright owners. For example, the copyright owners of songs by the Average White Band and the Gap Band actually promote the use of their music for sampling. Tommy Boy Records also makes obtaining sampling clearances easy. These copyright owners see value in the promotion of their music through sampling.
Yes! Works released under Creative Commons licenses may be freely used and sampled without being formally licensed. Keep in mind that you must adhere to the terms of your sample’s Creative Commons license. For instance, some licenses state that you may not use a particular work for commercial purpose. You will also need to credit the artist whose work you sampled, as well as include the Creative Commons license under which you sampled the work. Some licenses, called NoDerivs, prohibit you from changing, transforming, or creating derivative works from the original music in question. Sampling material released under a Creative Commons license is the best option if you do not want to go through the process of obtaining a license for the use of copyrighted music. You can find more information about Creative Commons at http://creativecommons.org/. The following websites offer music published under Creative Commons licenses:
Search engines are a good way to locate music released under Creative Commons licenses as well.
You can lower the risks associated with the use of un-cleared samples by making the sample unrecognizable, by not using the sample as the groove or hook of your song and by burying the sample in the mix. In many courts, your sample might be allowable if it is determined not to infringe because its use is inconsequential. Don’t forget the “zero tolerance” ruling we mentioned earlier, however. Federal courts in Kentucky, Michigan, Tennessee and Ohio consider any unauthorized sampling as constituting infringement, regardless of how short or unrecognizable it is. It is unclear whether or not this “zero tolerance” policy applies anywhere else, so it is in your best interest to always clear a sample early, before you choose to release your track. Although it might be tempting to wait until after your track becomes famous to concern yourself with clearing samples, remember that in the event you are successful, your bargaining power as regards negotiating a favorable sampling fee will be considerably eroded. The fees ultimately associated with such a strategy could be a significant portion, if not the entire portion, of the profits you bring in from a track, depending upon its success.
1. Determine as much as possible the exact song title, songwriter, music publisher, and performing rights organization for each song you are interested in using. Most CD booklets or vinyl record sleeves include some—if not all—of this information. Get as much of this information for each song prior to calling BMI or ASCAP.
2. Contact the appropriate performing rights organization to get the name, address and phone number of the publisher who controls the copyright to the music you are interested in using.
Index Clearance Section - ASCAP
1 Lincoln Plaza, New York, NY 10023
Research and Information Department - BMI
320 West 57th Street, New York, NY 10019
(212) 586-2000; fax (212) 956-2059
3. Contact the publisher to obtain permission. Get the name of the person you talk with. Tell them you seek to obtain a mechanical license for a song or songs they control. Follow-up with a letter, and make sure you receive written permission before proceeding.
4. In addition to gaining the permission of the publisher, you must also receive permission from the record label on which the song was released (and occasionally the artist who recorded the song) if you are using a commercially released recording of a particular song. The Texas Music Office has several reference books that list contact information of artist management companies and record labels. Please contact us for additional information.
5. If you are recording songs for commercial release, you are required to obtain a mechanical license from the publisher. (If you are using a song for a film, television show or commercial advertisement, you are required to obtain a synchronization license from the publisher.) The mechanical royalty rate is set by the Compulsory License Provision found in Section 115 of the U.S. Copyright Act; for the period January 1, 2004 to December 31, 2005 the statutory mechanical rate is 8.50 Cents for songs 5 minutes or less, or 1.65 Cents per minute or fraction thereof per unit sold - whichever is greater (after January 1, 2006, the rates will be 9.1 Cents and 1.75 Cents respectively). The Harry Fox Agency, a subsidiary of the National Music Publishers Association, is available to grant mechanical licenses for its almost 28,000 publisher clients. For more information, contact:
Harry Fox Agency
711 Third Avenue, Eighth Floor, New York, NY 10017
(212) 834-0100; fax (212) 953-2384
A handful of Texas businesses also can obtain mechanical and synchronization licenses on your behalf. For a list of these businesses, please contact the Texas Music Office.
See ASCAP's Music, Money, Success and the Movies for legal info on music in films.
See also How to Acquire Music For Films (frequently asked questions for independent filmmakers)
1. The Copyright Reference and Bibliography Section at the Library of Congress Copyright Office can research the copyright status of a song. The more detailed information you can furnish with your request, the less expensive the search will be. Please provide as much of the following information as possible:
The title of the work, with any possible variants
The names of the authors, including possible pseudonyms
The name of the probable copyright owner, which may be the publisher or producer
The approximate year when the work was published or registered
The type of work involved (musical composition, sound recording, photograph, etc.)
For a work originally published as a part of a periodical or collection, the title of that publication and any other information, such as the volume or issue number, to help identify it
The registration number or any other copyright data
Motion pictures are often based on other works such as books or serialized contributions to periodicals or other composite works. If you desire a search for an underlying work or for music from a motion picture, you must specifically request such a search. You must also identify the underlying works and music and furnish the specific titles, authors, and approximate dates of these works.
2. Files are subdivided by "year period". Records begin in the year 1790. The card catalog filing system began in 1870. Recent year periods for songs include 1955-1970, 1971-1977, and 1978-1993.
The Copyright Office published the Catalog of Copyright Entries (CCE) in printed format from 1891 through 1978. From 1979 through 1982, the CCE was issued in microfiche format. The catalog was divided into parts according to the classes of works registered. Each CCE segment covered all registrations made during a particular period of time. Renewal registrations made from 1979 through 1982 are found in Section 8 of the catalog. Renewals prior to that time were generally listed at the end of the volume containing the class of work to which they pertained. A number of libraries throughout the United States maintain copies of the Catalog, and this may provide a good starting point if you wish to make a search yourself.
There are some cases, however, in which a search of the Catalog alone will not be sufficient to provide the needed information. Because the Catalog does not include entries for assignments or other recorded documents, it cannot be used for searches involving the ownership of rights. The Catalog entry contains the essential facts concerning a registration, but it is not a verbatim transcript.
3. Upon request, the Copyright Office staff will search its records at the statutory rate of $150 for each hour or fraction of an hour consumed. Based on the information you furnish, they will provide an estimate of the total search fee. If you decide to have the Office staff conduct the search, you should send the estimated amount with your request. The Office will then proceed with the search and send you a typewritten report or, if you prefer, an oral re-port by telephone. If you request an oral report, please provide a telephone number where you can be reached from 8:30 a.m. to 5 p.m., eastern time.
The search fee does not include the cost of additional certificates, photocopies of deposits, or copies of other Office records. For information concerning these services, request Circular 6, "Obtaining Access to and Copies of Copyright Office Records and Deposits.
Your request and any other correspondence should be addressed to:
Library of Congress Copyright Office, LM-453
Records, Research and Certification
101 Independence Avenue, S.E.
Washington, D.C. 20559-6000
Tel: (202) 707-6850 Fax: (202) 707-6859
If you wish to do your own searching in the Copyright Office's files - which are open to the public - you will be given assistance in locating the records you need and in learning procedures for searching. Further, there is no fee if you conduct your search in person at the Copyright Office. The following files dating from 1978 forward are now available for searching online: COHM, which includes all material except serials and documents; COHD, which includes documents; and COHS, which includes serials. The Internet site addresses for the Copyright Office files is http://www.copyright.gov/.
What is the Digital Millennium Copyright Act?
The Digital Millennium Copyright Act or DMCA criminalizes production and dissemination of technology, devices, or services intended to circumvent measures that control access to copyrighted works (commonly known as Digital Rights Management or DRM measures). It also criminalizes the act of circumventing an access control, even in the absence of actual infringement. In addition, the DMCA heightens the penalties for copyright infringement on the internet by extending the reach of copyright, while limiting the liability of the providers of on-line services for copyright infringement by their users.
As an artist, copyright-holder, or blogger, § 512 of the DMCA will likely be the most relevant to you. The Online Copyright Infringement Liability Limitation Act (OCILLA) sets forth safe harbor provisions which exempt online service providers from liability for copyright infringement by their users, provided they meet certain criteria. The OCILLA outlines notification and takedown procedures regarding the infringing work in question, as well as counter-notification procedures. From a practical standpoint, these three categories are the most important for you to become familiar with.
Someone is infringing my copyrighted work; what do I do?
In the event that you discover someone is infringing your copyright, you will need to initiate § 512 procedures against them. As it is your copyright being infringed, this means you will deal with notification and takedown procedures.
The first step will be to notify the Online Service Provider (OSP) responsible for the user who has infringed your copyright. For instance, if someone has posted your copyrighted album material on their blog, you will need to determine what blogging service they use (their OSP), and send the notification to that service. In many cases this is Google-Blogger, however, if an individual maintains their own domain and does not use any services, you will need to send your notification to that user (webmaster) directly. Similarly, if the infringing content is linked by a search engine, you will need to contact the search engine directly. Unless the user is the web-master or else the sole person in charge of the posted content, you are not required to contact them directly.
In all of the above cases your notification, also known as a cease and desist letter, is sent to the service provider’s designated agent. It is common for websites to provide a “legal” or “legal notices” link on their main website in order to direct you to this individual. Typically, these can be found at the bottom of any page of the site. In the case of an individual who functions as their own webmaster, you will still contact them directly.
In your notification, you must include:
1) The name, address, and electronic signature (i.e. the name of your band, website, service, etc.) of the complaining party;
2) The infringing materials and their Internet location, or if the service provider is an "information location tool" such as a search engine, the reference or link to the infringing materials.
3) Sufficient information to identify the copyrighted works.
4) A statement by the owner that it has a good faith belief that there is no legal basis for the use of the materials complained of.
5) A statement of the accuracy of the notice and, under penalty of perjury, that the complaining party is authorized to act on the behalf of the owner.
Note that the current law only requires you to point out “substantially all” of the material alleged to be infringing. This means that more responsibility falls on the OSPs to search their own systems to ensure that all of your copyrighted material has been removed. The shift is beneficial to you, especially when the OSP is a search engine, because it can be prohibitively difficult to completely locate all of the allegedly infringing material on your own. In the past, this meant that you could not properly satisfy the third requirement of the notification list, and therefore could not properly file a takedown notice. As a rule of thumb, it’s best to provide as much information regarding the locations of as much of the allegedly infringing content as possible. In general, permalinks and post-dates (if possible) are required.
The statute of limitations for both civil and criminal copyright claims is three years. The period begins to run from the moment you were first placed on notice or made aware of the infringement. Should you bring suit after the statute of limitations has run, you may only be permitted to recover damages for three years, regardless of how long the infringing material has been available. In some cases, your claim may be barred altogether. Even if your claim does not come within the statute of limitations, or if you’re unsure of when the period began to run, you should always send cease and desist letters to individuals you believe are infringing upon your copyright.
Once the OSP has received your notice, they are required to expeditiously remove or disable access to the material that is allegedly infringing in order to maintain their safe harbor protection. They are not required to notify the user who posted the material before doing so, but they must send the user a notification after they take action.
At this point, the user may choose to allow the content to be removed, or else file a counter-notification notice with their OSP. If the user takes no action, your cease and desist notification was successful, and you do not need to take any further action. If the user files a counter-notification notice, you have 14 days in which to file suit against the user in district court. After this 14 day period lapses, the OSP is required to restore the material to its original location, and the process is over. If the material in question truly infringes upon your copyright, it is important to file suit within this period in order to protect this copyright.
Note that, should it be determined that you misrepresented your claim of copyright infringement (i.e. the material was non-infringing), you will be liable to the OSP for any damages stemming from the improper removal of the material.
I have received a DMCA notice and my content has been taken down; what should I do now?
DMCA recipients are not required to respond in any way to § 512 notices from OSPs or complainants. DMCA notices are intended to have a “chilling effect” – that is, they suppress infringing conduct by users’ fears of penalization at the interests of the copyright holders. As such, if you have posted infringing material, it is in your best interests to simply allow your OSP to remove the material – the DMCA will have served its intended purpose. There is a slight possibility that the ISP might take further action and disable your ISP account. Depending upon their Terms of Service, the OSP may or may not terminate your account with their service.
Should your content be removed incorrectly – that is, removed but not infringing – you will need to initiate counter-notification procedures with your OSP in order to have its access returned. OSPs are required to inform their users of counter-notification procedures as part of their safe harbor qualification, so in most cases this procedure will be made clear by the original takedown notification.
Counter-notification procedures are in place to ensure that copyright holders do not wrongly insist on the removal of materials that do not actually infringe upon their copyrights. If a user files a counter-notification, the OSP must promptly notify the copyright holder of the objection. If the copyright holder does not assert a claim against the user in district court within 14 days, the OSP must restore the material to its original location.
In your counter-notification, you must include:
- The subscriber's name, address, phone number and physical or electronic signature;
- Identification of the material and its location before removal;
- A statement under penalty of perjury that the material was removed by mistake or misidentification;
- Subscriber consent to local federal court jurisdiction, or if overseas, to an appropriate judicial body.
Chilling Effects has a counter-notification form generator.
Note that filing a counter-claim opens you up to the possibility of a lawsuit. If the copyright holder believes there is a legitimate infringement taking place, they will file suit within the 14 day window, and you will end up in court with them. As such, filing a counter-claim is only in your interests if you are certain that no infringement is taking place. Keep in mind that § 512 notices are served on many users who are not actually infringing any copyrights, however. In these cases, the copyright holder will most often choose to let the 14 day limitations period run rather than file suit, and the user’s content will be restored to its original location by the OSP.
The DMCA safe harbor provisions only apply to OSPs, not to individual users. As such, an individual who believes that a user has infringed upon their copyright may sue the user regardless of whether or not they file a DMCA claim against the OSP. As copyright holders are not required to file DMCA claims as a prerequisite to filing suit against an individual for infringement, the DMCA does not insulate an infringing user from suit.
What are the consequences of becoming a “repeat-offender,” and how do I avoid them?
The DMCA provisions do not allow individuals to continually infringe upon the copyrighted materials of others and receive numerous DMCA complaints. As part of an OSP’s safe harbor qualifications, they must include a termination policy that requires the removal of users found to infringe copyrighted material repeatedly. The DMCA itself does not provide set criteria for what constitutes a “repeat offender,” and it is likely that your OSP will merely warn you against doing so. Most OSPs will warn you of the consequences alone rather than provide you with exact information as to what criteria constitutes a “repeat-offender.” As such, it’s in your best interests to always monitor what you’re posting and make sure that your material does not infringe upon the copyrights of others.
Guidelines for submitting copyrighted work to websites and online services.
You should consider the following questions before submitting any material to online service providers.
Are you the exclusive, sole-owner of the material and all the rights associated with it?
If so, then as long as the content isn’t prohibited by the service provider’s terms of service (pornography, libel, etc.), it is safe to post.
If not, then you will need to obtain permission from the copyright owner to post the material. If you run a music blog and the material was submitted for promotional purposes, the copyright owner has effectively given you permission to post the content. You should retain the e-mail granting permission in the event that a DMCA claim is later filed against the post anyway.
Do you co-own the material, or is it a work created jointly with another party?
If so, consider any profit-sharing agreement you might have with the other party. Note that, in the absence of any explicit agreement for profit-sharing, you are required to split the earnings 50-50.
Copyright law does not protect facts, ideas, procedures, processes, systems, methods of operation, concepts, principles, or discoveries (17 U.S.C. § 102(b)). To the extent that a copyrightable expression merges inseparably with an uncopyrightable expression in a particular work, copyright protection is generally unavailable. These limits serve a number of purposes. They ensure that copyright serves to encourage and reward creativity rather burden it. Additionally, they keep copyright from extending into other areas of intellectual property law.
Am I giving up any licensing rights by submitting my work to a particular site?
Maybe. The Terms of Service agreements for many online service providers stipulate that posting content on their servers grants them a non-exclusive license to the material. Some even extend this license to end users of the site itself. This non-exclusive license grants the service provider a royalty-free, sub licensable and transferable license to use, distribute, prepare derivative works of, display, and perform your content. The same may apply to any end users who download the material you have posted, depending upon the Terms of Service agreement.
The best way to maintain control over the licensing and use of your material is to read a site’s TOS before you choose to post anything to their servers. This document is presented before you sign up for an online service, and typically requires you to click a link and “agree” with the terms before you are allowed access to the service. Websites is usually a “Terms of Service” link at the bottom of the login page as well. Note that the licenses most likely terminate once you delete the content or post from an online service provider’s servers, but you should read the TOS in order to be certain.
Disclaimer: The Texas Music Office does not intend for this advice to provide or replace professional legal advice in any way. These suggestions are only intended to provide a short-answer reference guide to the basic legal and business practices associated with the music industry. In your own interest, consult with an attorney before entering into any contractual agreement or taking any action against copyright infringement.